Oligarchical Public Option

We generally agree with Jack Balkin’s assessment re the causal relationship among the political economy, judicial cadres and resulting jurisprudence. He’s responding to Larry Lessig. As needed in today’s meme-soaked world, Balkin and Sandy Levinson have cloaked their argument with the moniker ‘Partisan Entrenchment’. It fits. What Balkin says is pretty unremarkable except we’re in such debased times an ADD afflicted demos must be reminded.

Law always has been the internal profession, especially common law jurisdictions such as the UK and U.S. The Continent still is largely a code based legal system derived from the common Roman inheritance. Under common law systems dependent on case law, the entire edifice of jurisprudence, stare decises and other meme barriers are designed to seal legal development from external interference (‘Originalists’ being the most famous (to some) fringe movement within the Academy and bench).

Political science always has been external. By that one means the analysis and perspective is macro. Theory and application are on institutions, people, and processes. Political scientists, of course, write about law, separation of powers and constitutional matters. Louis Fisher merely being among the most prominent. Political scientists (and pundits) generally don’t know how to read a case. Almost always they fail to understand the difference between the holding – or binding decision – and dicta surrounding it which is often colorful, immensely quotable but separate and non-binding. (Judicial activists like Scalia, however, are expert at inserting dicata for future mischief). A failing of the legal academy was its inability to handle and deal with the so-called ‘Crits’ (Critical Legal Theory’) back in the 1980s successfully, which began the commingling of external disciplines with legal theory and eventually jurisprudence. People in the Academy running around writing articles about Wittegenstein and the UCC or Kantian aspects of replevin eventually yield a bitter harvest. Except it is now Rightist instead of the ineffectual and droll neo-Marxist stuff back then. (Posner deserves a special place in Night Court hell for his Right Wing imprimatur on it all).

We say all this because ‘Partisan Entrenchment’ and even Lessig’s approach are heirs to the breakdown in barriers between the internal and external (Balkin and Levinson are actually acting more like political scientists here than lawyers). We’re still reading the decision carefully before we offer our legal opinion of Citizens United; in general, the claims of unjustified judicial activism and clear disregard for principles of jurisprudence are clear even on a first read. We’ll have more to say in the days ahead. We’re looking at congressional options in particular.

Staying on the commingled poli-legal plane of Balkin and Lessig we offer our personal experience. Regular readers know our cant. It’s bolierplate to them and we apologize. To the new visitors, we’ve represented most of the Fortune 500 in various guises in court, on the Hill, OSD, OMB, HLS, GSA, FCC, WH and elsewhere. We’ve lobbyied for companies that blow things up, build networks to help things blow up, sell consultants to the government for same, or make the stuff you see in Best Buy, etc. or use to call home. We’ve been in the thick of the 1996 Telecom Reform Act (kof). Over the years we’ve carried water for BOCs (Bell Operating Companies) and later dealt with the IXCs (the old interexchange carriers). Almost all at the VP level or higher. This activity over the years by necessity means the Stiftung raised and handed over beaucoup de dollars to campaigns on behalf of said entities. So we’ve seen the sausage making and purchase orders close up.

And it doesn’t quite work the way most think. First, candidates are the ones desperate for cash. Campaigns are unbelievably expensive, and not just media buys. With only a few exceptions we’ve yet to encounter a company eager to spend on political matters. In fact, in our experience almost every company we’ve represented *hates* being shaken down by congress critters for cash. One reason is that it’s never just once. It’s constant. Congresscritters rarely stay bought. And the only people who understand capitalism worse than the Soviets are Congresscritters and their staff. They assume companies are wealthy so too must be a government affairs budget. People would be astonished at how dumb Congress is about the private sector day in and day out.

Heavily regulated like the phone companies are historically most amenable to the game because they know an FCC decision (or even Notice of Inquiry) can massively impact shareholder value. Same with other heavily regulated industries. Their ‘customers’ are secondary. Defense companies focus on their DoD customer and paladins on the Hill but are strategic about their cash. Contrary to the Left’s [sic] fevered imagination, most defense and other similar companies have a pretty limited government affairs budget compared to the endless hands out. Instead they do the B1-jobs-in-every-district ploy. We know. We’ve been there when a world famous defense or other company would be put on the spot for yet another shakedown but it’s not in the budget.

Congress plays alot of tricks to manipulate companies. Most companies caught on to the game long ago and despise it. Know why the R&D Tax Credit wasn’t permanent? Right. Congresscritters use the regular renewal vote for a new shakedown. And so on across so many issues.

Companies with direct consumer relationships traditionally prefer indirection. This was true even during DeLay, when legislation was everything goes if you were on The List has paid ‘friends’. We frankly don’t see ‘corporate America’ writ large willing to in effect become visible contentious political actors under Citizens United easily. The entire essence of lobbying (good lobbying) is to get things done invisibly and with no fingerprints. Political activity not only invite board conflicts (which can be resolved with a re-shuffle) but even derivative law suits from shareholders about malfeasance and waste of corporate assets. The law suits even if eventually defeated would through discovery force all of the companies political activities to be entered into the public record.

The ‘Public Entrenchment’ theory suggests the corporate solution is to replace all these noisome congress critters with more compliant and less demanding minions. Or simply mount an oligarchical coup of their own and do away with indirect governance. Referring to broad sociological periods as ‘the Gilded Age’ as examples of essentially a bought and paid for Congress are inapt. One reason Citizens United may be less efficacious than the Right Wing hopes is that people are fleeing broadcast television, cable and papers. And demographics suggest this trend will accelerate quickly. They can buy ads but will who will be watching?

Certain industries threatened with Obama’s suddenly discovered zeal for ‘real reform’ will be among the first to tip a toe into advocacy waters. Banks, the retrograde energy industry, ‘healthcare’ [sic’] companies. They’re already spending now. Direct company advocacy at first will be tentative. Wall Street (the ‘financial services *industry* [sic]’) in particular thrives on lobbying in the shadows when it can. The audacious first movers will be we suspect the plutocratic wealthy, especially outliers such as individuals who may own their own companies or be CEO founders. Several we’ve met at CPAC over the years are such loose cannons. They’re probably gearing up even now.

Congress traditionally has not wanted to allow multiple voices in their campaigns. In the 1920s, radio was the Internet of the time. Wide open. Anyone could broadcast. And they did against incumbents. Herbert Hoover as Secretary of Commerce deliberately let chaos ensue to build a case for regulations. Thus was born the Federal Radio Commission (FRC) in 1926 and then the FCC in 1933. With Sarnoff and the Fairness Doctrine Congress ensured that licenses would be held by the government and subject to renewal. A cozy monopoly was created which favored incumbents and the industrial elite.

Citizens United not only rolls back McCain-Feingold, Austin, etc. It also attacks congressional interest in limiting outside voices hijacking their campaigns. Roberts et al. give the oligarchy a ‘public option’ now for what they always had to pay for in private. Which brings us back to Balkin’s ‘Partisan Entrenchment’. There’s still a window for a few years. All the more reason to hope the netroots continue their campaign to find committed progressives. In the medium term we generally agree with Balkin’s assessment.

David Bose now at the Wingnut group Citizens United was previously distinguished merely as Dan Burton’s Renfield. The Supreme Court elevates all sorts to historical prominence. His fleeting fame here should also encourage. If he can serve as the vessel for a radical Court to scar democracy, so too can others with better intentions bring healing.


  1. Connec says

    On the theoretical background:
    Kind of wishing one would make the interior/exterior distinction a bit more precise. Or suggest further reading. Was going to pick up on the ”macro” hint, but when I think of social science (as it could and should be rather than its present manifestation of confusion) we get both the micro and macro–case in point the field of economics with its macro vs micro partition. So thinking you using the terms differently?
    More to the point, what is to you the foundations of jurisprudence, ethical determinations etc? …guessing whatever it is constitutes the beating heart of whatever this ‘internal’ discipline is.

    The rest of it seems obvious. Partisan entrench, inertial mass model momentum.

  2. Hunter says

    So there was Basel, O’Keefe (the ACORN pimp guy), Flanagan (the son of a US Attorney), and Dai:

    “According to the Phillips Foundation’s Web site, Dai was the editor-in-chief of the GW Patriot, an alternative conservative student newspaper, when he attended The George Washington University in 2006. According to information Dai posted in September 2007 on the university’s online alumni directory, he lived in Naperville, Ill., helped run a “Defense Deparment regional defense counterterrorism/irregular warfare program” and then became assistant director of the Intelligence Community Center of Academic Excellence at Trinity Washington University, which prepares undergraduates for careers in intelligence.”

    Trying to bug the office of a US Senator, in a federal building? And the quote from the lawyer at the end was priceless:

    “Robert Flanagan’s attorney, J. Garrison Jordan, said he believes his client works for the Pelican Institute. Asked the motivation for the alleged wiretap plot, he said: ‘I think it was poor judgment. I don’t think there was any intent or motive to commit a crime.'”

    Odd, yes. Unsurprising, but unsettling nonetheless.

  3. Comment says

    Stewart forced a sincere apology from Olbermann for Olbermann sloppy attack on Brown. JS is building a good body count against media clowns like Olbermann and Tucker.

  4. jacksmith says

    A LINE IN THE SAND – From jacksmith – WorkingClass



    My Fellow Americans and People Of The World

    A strong Government-run MEDICARE like Public Option is STILL! CRITICAL!

    We have had a long hard struggle to find out what would be the BEST! that this congress and the Whitehouse could do to fix our highly dangerous, poor quality, most costly, and MOST! disgraceful healthcare delivery system in the world. It is clear that congress can do much more for the American people than what is proposed so far.

    It is clear that congress can pass a strong GOVERNMENT-run public option CHOICE. Available to everyone on day one. Expand Medicare and not levy any new taxes on workers healthcare benefits and plans. LET THIS BE YOUR LINE IN THE SAND!

    Lastly, there can be NO! INDIVIDUAL MANDATES without a strong Government-run MEDICARE like Public Option CHOICE. Or the American people WILL! and SHOULD! revolt with an all out CIVIL WAR against congress and this Government.

    House and Senate progressives and the tri-caucuses should aggressively push for the inclusion of a strong Public Option, Medicare expansion, and no new taxes on workers healthcare benefits and plans. If the obstructionist kill meaningful healthcare reform, then you should kill this bill. Because it will be far worse than the healthcare disaster we have now. It’s failure will be on the obstructionist heads. And they will be punished and replaced.


    What is proposed in the Senate bill is the worst case scenario for health-care reform. It would shift trillions of taxpayer, public and private dollars into the hands of the private insurance industry (The single most costly, deadly and dangerous product sold in America). And it would compel by law millions of Americans to financially support this oxymoronic criminal enterprise. You cant have a individual MANDATE WITHOUT A STRONG PUBLIC OPTION CHOICE!

    You will have NO! realistic way of controlling cost and quality. Cost will continue soaring through the roof bleeding the American people dry, and KILLing our economy. And our quality of healthcare will continue to decline below our current ranking of “WORST! quality of healthcare delivery in the developed World”.

    From the very start, the American people have been crystal clear about what they wanted. They wanted a humane single payer system like the rest of the developed world has (HR676). Or at least a humane strong GOVERNMENT-run public option CHOICE!! This is what the American people gave the democrats control of the house, control of the senate, and control of the Whitehouse to do.

    Those of you that can, should prepare now to remove every member of congress that fails to support YOUR healthcare reform with a strong Public Option, Medicare expansion, and no new taxes on workers healthcare benefits and plans. Run against them in teams if you have to. But take them out. And replace them with a strong single payer or PRO PUBLIC OPTION CHOICE candidate.

    Now! is the time to bring maximum pressure on your members of congress. Contact your representatives and spread the word.

    The Public Option http://tinyurl.com/yfftf76


    I have to tell you now that the H1N1 virus is a man-made WEAPON OF MASS DESTRUCTION! and TERROR! It is a WEAPONIZED version of a flu virus. It has swept the planet infecting millions. And causing a global pandemic that has killed tens of thousands, and injured millions.

    The H1N1 virus is the product of the DISGRACEFUL, GREED DRIVEN PRIVATE FOR PROFIT MEDICAL INDUSTRIAL COMPLEX! It was released in the U.S. in Texas in early January of last year, but not recognized until around April 2009 in California. The reason I know this is because when it came to America, it came to see me FIRST! How sweet…

    This was around the time the MEDICAL INDUSTRIAL COMPLEX! assaulted the Whitehouse with all their devils deals to cripple and weaken YOUR! healthcare reform. Especially your right to have a single payer system like HR676 (Medicare For All) which most of you wanted.

    They don’t even want you to have your HUGE!!! compromise position of a strong government-run MEDICARE like Public Option CHOICE. To compete with their DISGRACEFUL, GREED DRIVEN, MURDEROUS, PRIVATE FOR PROFIT PRODUCT (The single most costly, deadly and dangerous product sold in America).

    They also wanted to take away your rights to have your government meet it’s responsibility to use it’s full power to regulate, negotiate, and control drug cost, healthcare cost and quality. Something every other civilized country in the developed World has done for it’s people. Their Greed! moral degeneracy and lack of patriotism knows no bounds.

    Many of you will remember that before we knew about H1N1. I posted a open message to the President and Congress warning them to be vigilant about their health, and cautious about any medical advice they received. As I said then “they will not hesitate to try and hurt you”.

    The U.S. and the World have been under a BIOLOGICAL TERROR ATTACK! for over a year now. It is CRITICAL that We The People Of The United States take away control of our healthcare system from the GREED DRIVEN MEDICAL INDUSTRIAL COMPLEX!

    For our own National security, and the security of the world.

    A Strong, government-run, MEDICARE like Public Option CHOICE. Available to everyone on day one, with the full unfettered power of the federal government to regulate, negotiate, and control cost and quality. Would be the most workable way to deal with this global crisis at this time. Including patent suspensions as needed for national security or the greater good.

    As an American I invite the peoples of the World to help us fix our healthcare crisis. And bring pressure on our government to meet it’s responsibility to protect global security by controlling, and removing the corrupting influence of GREED and the PRIVATE FOR PROFIT motivations from healthcare in the U.S. and around the World.

    I call on the governments of the World and the global intelligence community to track down these MASS MURDERERS, and bring them to justice. CONNECT THE DOTS! And be vigilant that they don’t slip in another viral strain on you under the cloak of H1N1 sequestration.

    Further, the proposed patent protection on biologic’s must be stripped from the US bill. And greatly shorten/restricted, or abolished completely. This is a grave danger to humanity and global security.

    I think President Obama is doing the best he can at playing the disastrous deck of cards he inherited from the previous administration. And I think he is doing an excellent job. But the wolves and devils of the medical industrial complex! are trying to exploit, and take advantage of his good heart, and desperate desire to help suffering Americans. But we must be strong and insist that healthcare reform be done right for the American people. Or everyone loose’s.

    This is all I can say in a message post. I’ll try to find a way to tell you more later.

    God Bless You My Fellow Human Beings

    jacksmith – Working Class

    p.s. The so-called nominal H1N1 virus is designed in such a way as to make it more lethal to children and young adults. The medical community must be more vigilant of secondary bacterial infections in the young caused by H1N1. And remember, a viral infection is also a transfer of genetic code to you. Think about it, and be vigilant. :-(

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