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John Roberts Gives Bad Faith Blessing to Hyper-Partisan Gerrymandering, Paving Way for the Kochstitution.

There was an omi­nous warn­ing about the direc­tion Amer­i­can Democ­ra­cy was head­ing When David Frum — a for­mer speech­writer for George W. Bush turned Nev­er-Trumper — wrote a piece in the Atlantic [1] last year where he warned, “If con­ser­v­a­tives become con­vinced that they can­not win demo­c­ra­t­i­cal­ly, they will not aban­don con­ser­vatism. They will reject democ­ra­cy.” It was a warn­ing about the mass of Repub­li­can vot­ers even­tu­al­ly turn­ing against the idea democ­ra­cy if they con­clude that con­ser­vatism isn’t pop­u­lar enough to win a major­i­ty of the vote, but as we’re going to see in this piece, the most pow­er­ful com­po­nent of the Repub­li­can par­ty has already con­clud­ed that it can’t get the pub­lic behind its agen­da and has already turned against democ­ra­cy. This fac­tion is, of course, the corporate/billionaire wing of the Repub­li­can par­ty which knows full well that its agen­da of slash­ing tax­es on the wealthy and gut­ting gov­ern­ment pro­grams and reg­u­la­tions isn’t even going to be pop­u­lar with most Repub­li­cans. Because it’s the fac­tion of bil­lions that wants poli­cies only a bil­lion­aire could love.

And it’s that fac­tion of the Repub­li­can par­ty — the fac­tion that com­pris­es Amer­i­ca’s real ‘elites’ of bil­lion­aires and large cor­po­ra­tions — that won a major vic­to­ry this week at the Supreme Court in its war on democ­ra­cy: The Supreme Court just decid­ed that it can­not make rul­ings on par­ti­san ger­ry­man­der­ing cas­es. As a con­se­quence, each state is now free to ger­ry­man­der its con­gres­sion­al dis­tricts as extreme­ly as it wants. So if a state’s courts and leg­is­la­ture are effec­tive­ly cap­tured by a sin­gle par­ty, that par­ty can cheat as much as they want when it comes to par­ti­san redis­trict­ing.

And par­ti­san redis­trict­ing does­n’t just apply to fed­er­al House dis­tricts. State leg­isla­tive dis­tricts are also vul­ner­a­ble to ger­ry­man­der­ing. So when the Supreme Court ruled that it’s up to states to deter­mine whether or not a redis­trict­ing map is too par­ti­san that left open the oppor­tu­ni­ty of par­ti­san state courts and state leg­is­la­tures and gov­er­nors work­ing togeth­er to cre­ate and bless hyper-par­ti­san redis­trict­ing maps for state leg­isla­tive dis­tricts. Cheat­ing isn’t against the rules for both state and fed­er­al if the cheaters win big enough run the redis­trict­ing approval process.

The tim­ing of the Supreme Court’s approval of hyper-par­ti­san redis­trict­ing is also par­tic­u­lar­ly omi­nous: 2020 is the next cen­sus year and the redis­trict­ing process starts after the results of the 2020 elec­tions. The new state leg­is­la­ture fol­low­ing the 2020 elec­tions will draw new state and fed­er­al dis­tricts in all 50 states and those new dis­tricts will be in effect from 2022 through 2032. A ger­ry­man­der­ing bonan­za is sched­uled to take place in less than two years and now every state that’s under one-par­ty rule fol­low­ing the 2020 elec­tion was just giv­en a green light by the Supreme Court to make that redis­trict­ing process as par­ti­san as pos­si­ble. And while both par­ties have the abil­i­ty to ger­ry­man­der and both par­ties do it, both par­ties do not ger­ry­man­der to a remote­ly even degree. Repub­li­cans prac­tice “ger­ry­man­der­ing on steroids” [2] and Democ­rats haven’t demon­strat­ed that capac­i­ty yet.

The oth­er big obvi­ous rea­son that this Supreme Court rul­ing will net help Repub­li­cans is that Repub­li­cans con­trol far more state leg­is­la­tures and gov­er­nor­ships than Democ­rats. Both cham­bers of the state leg­isla­tive bod­ies for every state but Min­neso­ta are con­trolled by a sin­gle par­ty fol­low­ing the results of the 2018 mid-terms [3]. One par­ty hav­ing con­trol of both cham­bers of the state leg­is­la­ture is a require­ment of allow­ing one par­ty to draw hyper-par­ti­san dis­tricts and every state but Min­neso­ta has one par­ty leg­isla­tive rule right now. The sit­u­a­tion is poised for mas­sive par­ti­san ger­ry­man­der­ing abuse.

Now, in some states (most­ly ‘Blue’ states), the redis­trict­ing is done by an inde­pen­dent com­mis­sion so ger­ry­man­der­ing isn’t an issue. But fol­low­ing the 2018 mid-terms, if redis­trict­ing took place at that point the Repub­li­cans would have uni­fied con­trol over the redis­trict­ing process in states that make up a net 179 con­gres­sion­al seats com­pared to the Democ­rats hav­ing uni­fied con­trol over 79 seats. States where inde­pen­dent com­mis­sions con­trol the redis­trict­ing process would cov­er 113 con­gres­sion­al seat, states under split con­trol cov­er 60 seats, and states that don’t have to do redis­trict­ing because they only have one seat cov­er 7 con­gres­sion­al seat [4]. So out of the 435 total con­gres­sion­al seat, the Repub­li­cans have a 100 seat advan­tage over the Democ­rats in the num­ber of con­gres­sion­al seats where the Repub­li­cans will like­ly have uni­fied con­trol over the redis­trict­ing process fol­low­ing the 2020 elec­tions. And that 100 seat advan­tage reflects the advan­tage the Repub­li­cans will have over the state leg­isla­tive dis­trict lines too. The Repub­li­cans are poised to open­ly and legal­ly cheat mas­sive­ly at the fed­er­al and state lev­els simul­ta­ne­ous­ly. Or rather, open­ly and legal­ly cheat even more mas­sive­ly than they did in 2010.

But as we’re going to see, the fact that the Repub­li­cans are now even more empow­ered to rig state leg­isla­tive dis­tricts and there­fore more like­ly to gain uni­fied con­trol of state gov­ern­ments has impli­ca­tions that threat­en to go far beyond the obvi­ous prob­lem of giv­ing Repub­li­cans a sys­tem­at­ic boost in rep­re­sen­ta­tion. For starters, it turns out that pre­vent­ing state supreme courts from rul­ing on par­ti­san redis­trict­ing has also been one of the core elec­toral strate­gies projects pushed by bil­lion­aires like the Koch broth­ers and the Koch-fund­ed cor­po­rate front group, the Amer­i­can Leg­isla­tive Exchange Com­mit­tee (ALEC). So even state courts might not be able to state leg­is­la­tures from the most extreme forms of ger­ry­man­der­ing if ALEC pre­vails.

As we’re also going to see, the Kochs’ ambi­tions don’t stop with extreme ger­ry­man­der­ing of House dis­tricts. They’re also work­ing on effec­tive­ly ger­ry­man­der­ing the Sen­ate by repeal­ing the 17th Amend­ment and return­ing the elec­tions of sen­a­tors to state leg­is­la­tures. And that effort to repeal the 17th Amend­ment is part of a much larg­er long-stand­ing effort to trig­ger Arti­cle V of the con­sti­tu­tion and launch con­sti­tu­tion­al con­ven­tion that could con­sti­tu­tion­al­ly enshrine their far right cor­po­ratist agen­da. In oth­er words, this Supreme Court rul­ing just made the Koch broth­ers planned far right cor­po­ratist over­haul of the US con­sti­tu­tion — which is effec­tive­ly a civ­il dooms­day sce­nario for the US — A LOT more like­ly to suc­ceed because that dooms­day sce­nario is pred­i­cat­ed on right-wing con­trol of at least 34 out of 50 state leg­is­la­tures. That’s the num­ber of states that need to call for an Arti­cle V con­sti­tu­tion­al con­ven­tion, a 2/3 major­i­ty of the states. And thanks to the egre­gious ger­ry­man­der­ing that the GOP tur­bocharged in 2010 the GOP dom­i­nates at the state lev­el and the Kochs are almost there in reach­ing the 34 states they need for a far right con­sti­tu­tion­al over­haul.

That’s the civ­il dooms­day sce­nario that the Supreme Court just tur­bocharged that we’re going to be look­ing at. First, let’s take a look at an exam­ple of how the GOP was already ger­ry­man­der­ing before this Supreme Court rul­ing. The exam­ple, Wis­con­sin, is an extreme exam­ple but that’s what makes it a mod­el of what we should expect going for­ward. As the arti­cle points out, Wis­con­sin’s par­ti­san ger­ry­man­der­ing is so extreme that if there was a vote of equal num­bers of Demo­c­ra­t­ic and Repub­li­can vot­ers the Repub­li­cans would win 64 out of 99 state assem­bly dis­tricts. As the arti­cle also notes, the impact of ger­ry­man­der­ing is on top of the built in ger­ry­man­der­ing-like effect that comes from Demo­c­ra­t­ic vot­ers being con­cen­trat­ed in big cities that puts a high pro­por­tion of demo­c­ra­t­ic vot­ers in a rel­a­tive­ly small num­ber of dis­tricts. So the Democ­rats in Wis­con­sin basi­cal­ly can’t real­is­ti­cal­ly win con­trol of the Wis­con­sin state leg­is­la­ture even in a ‘good’ year as a result of the 2011 round of redis­trict­ing and that’s the kind of cheat­ing that was pos­si­ble before the Supreme Court’s rul­ing [5]:

Mil­wau­kee Jour­nal Sen­tinel

New elec­tion data high­lights the ongo­ing impact of 2011 GOP redis­trict­ing in Wis­con­sin

Craig Gilbert,
Pub­lished 10:06 a.m. CT Dec. 6, 2018 | Updat­ed 10:55 a.m. CT Dec. 6, 2018

Detailed elec­tion data post­ed by the state this week illus­trates once more the ongo­ing impact of Wisconsin’s ger­ry­man­dered, Repub­li­can-friend­ly leg­isla­tive map.

GOP Gov. Scott Walk­er lost his bid for re-elec­tion by rough­ly 1 per­cent­age point Nov. 6 to Demo­c­rat Tony Evers.

Yet Walk­er car­ried 63 of the state’s 99 state Assem­bly dis­tricts.

In fact, the data show that 64 of the 99 dis­tricts are more Repub­li­can than the state as a whole, based on their vote for gov­er­nor.

In oth­er words, Repub­li­cans enjoy a built-in 64–35 advan­tage in the par­ti­san make­up of the 99 Assem­bly dis­tricts. In a hypo­thet­i­cal 50–50 elec­tion, in which there are equal num­bers of Demo­c­ra­t­ic and Repub­li­can vot­ers in Wis­con­sin, no one cross­es par­ty lines and inde­pen­dents split down the mid­dle, that trans­lates into a mas­sive 29-seat GOP advan­tage in the Assem­bly. That’s very close to the 27-seat mar­gin (63–36) that Repub­li­cans won last month.

Every elec­tion since the cur­rent map was drawn has told the same sto­ry:

* Repub­li­cans enjoy a nat­ur­al edge in the bat­tle for the Leg­is­la­ture because Demo­c­ra­t­ic vot­ers are more con­cen­trat­ed geo­graph­i­cal­ly in urban areas, espe­cial­ly in Mil­wau­kee and Madi­son, mean­ing their vot­ing pow­er is con­fined to a small­er num­ber of dis­tricts.

* The leg­isla­tive map drawn by the GOP in 2011 added great­ly to that nat­ur­al Repub­li­can advan­tage. Under the old map, Democ­rats had to out­per­form the GOP by 2 or 3 points statewide to have a good shot at win­ning con­trol of the Assem­bly. But under the cur­rent map, Democ­rats need to out-per­form the GOP by clos­er to 9 or 10 points statewide to have a good shot at win­ning an Assem­bly major­i­ty.

* Aside from lock­ing in Repub­li­can con­trol, the ger­ry­man­dered map has almost killed off com­pet­i­tive Assem­bly elec­tions. To max­i­mize their par­ti­san advan­tage, Repub­li­cans drew a minor­i­ty of huge­ly lop­sided Demo­c­ra­t­ic dis­tricts (min­i­miz­ing the impact of the Demo­c­ra­t­ic vote) and a siz­able major­i­ty of less lop­sided but safe GOP seats. That leaves hard­ly any tru­ly “pur­ple” Assem­bly dis­tricts in this “pur­ple” state. In the Nov. 6 elec­tion, only five of 99 Assem­bly races were decid­ed by less than 5 points. Only two were decid­ed by less than 3 points.

Exact­ly how tilt­ed is the cur­rent map?

One way to gauge this is to look at the results for gov­er­nor or pres­i­dent by leg­isla­tive dis­trict. That tells you how Repub­li­can and Demo­c­ra­t­ic vot­ers are dis­trib­uted across dis­tricts and how many dis­tricts favor each par­ty in their under­ly­ing par­ti­san make­up.

The 2018 num­bers below are based on the ward-lev­el elec­tion returns post­ed by the state this week. John John­son, a research fel­low at Mar­quette Uni­ver­si­ty Law School who works with Mar­quette poll­ster Charles Franklin, used those returns to cal­cu­late the vote for gov­er­nor in every Assem­bly dis­trict and shared his data [6] for this analy­sis.

I’ve also done the same analy­sis [7] for the past sev­en Wis­con­sin elec­tions, using the dis­trict-by-dis­trict results for gov­er­nor or pres­i­dent to mea­sure the par­ti­san tilt of the state’s leg­isla­tive map.

Wis­con­sin’s tilt­ed map

The num­bers all show that the cur­rent map is far more tilt­ed toward the GOP than the pre­vi­ous map — and all but ensures Repub­li­can con­trol of the state Assem­bly in “good” years or “bad” for the GOP.

Let’s start with the 2010 race for gov­er­nor, which was con­duct­ed under the old map. Walk­er won statewide by just under 6 points. Based on how they vot­ed for gov­er­nor, 56 of the 99 Assem­bly dis­tricts were more Repub­li­can than the state as a whole (mean­ing Walk­er did bet­ter in those places than he did statewide).

That meant the GOP had a built-in advan­tage under the old map of 13 seats (56 seats were more Repub­li­can than aver­age, 43 were more Demo­c­ra­t­ic).

Then Repub­li­cans redrew the lines in 2011 and that advan­tage grew dra­mat­i­cal­ly [8]. In the first midterm elec­tions under the new map (2014), 62 seats were more Repub­li­can than the state as a whole based on how they vot­ed for gov­er­nor. A baked-in 13-seat GOP advan­tage (56–43) became a baked-in 25-seat edge (62–37).

Even that doesn’t tell the whole sto­ry, because not only did Repub­li­cans increase the num­ber of GOP-lean­ing seats, they increased their par­ti­san advan­tage in those indi­vid­ual seats. In order to win 50 seats under the old map, Democ­rats had to win at least sev­en seats that had a GOP lean. But those sev­en seats were fair­ly com­pet­i­tive, with a Repub­li­can lean of 0 to 3 points.

The math got far worse for Democ­rats under the new map. The 2014 results showed that to get a bare 50-seat major­i­ty, Democ­rats need­ed to win at least 13 seats with a Repub­li­can lean, includ­ing five seats with a GOP lean of more than 8 points.

The 2018 elec­tions results tell a sim­i­lar sto­ry. Of the 99 Assem­bly seats, 64 were more Repub­li­can in their vote for gov­er­nor than the state as whole. Walk­er car­ried 63 of them despite los­ing statewide.

To win a bare major­i­ty of 50 seats, Democ­rats would have need­ed to win at least 14 seats that Walk­er car­ried, includ­ing nine he car­ried by more than 5 points. In an era of dimin­ished tick­et-split­ting, that wasn’t remote­ly going to hap­pen. Repub­li­can Assem­bly can­di­dates won all but two of the 63 dis­tricts car­ried by Walk­er. And Demo­c­ra­t­ic Assem­bly can­di­dates won all by two of the 36 Assem­bly dis­tricts car­ried by Evers.

Democ­rats had no prayer in Assem­bly

In short, in a year when Democ­rats swept the statewide elec­tions, they had no prayer of win­ning the state Assem­bly.

So how many Assem­bly seats would Democ­rats have won in 2018 with a “fair” map?

As crit­ics of the map have point­ed out, Democ­rats won 53% of all the Assem­bly votes cast statewide while com­ing away with only 36% of the seats. But it would be wrong to sug­gest Democ­rats should have won 53% of the Assem­bly seats under a fair map. The GOP didn’t both­er to field can­di­dates against 30 Democ­rats in ultra-blue Assem­bly dis­tricts, so using the statewide Assem­bly vote as a mea­sure of how many seats Democ­rats “should have” won is mis­lead­ing.

It would also be a stretch to sug­gest Democ­rats should have won an Assem­bly major­i­ty at all this year, even though their can­di­date for gov­er­nor, Tony Evers, won just over 50% of the two-par­ty vote.

Urban-rur­al divide

That’s because under even an unbi­ased map, the con­cen­tra­tion of Demo­c­ra­t­ic vot­ers in urban areas is going to lim­it Democ­rats’ vot­ing pow­er across 99 Assem­bly dis­tricts. This has become an even big­ger prob­lem for Democ­rats because the par­ty has lost ground in rur­al areas in recent years. Democ­rats are des­tined under these cir­cum­stances to under­per­form their statewide vote when it comes to how many Assem­bly seats they win.

But if a grow­ing urban-rur­al divide has made it a chal­lenge for Democ­rats to com­pete for Assem­bly con­trol, any fair read­ing of the num­bers shows that the ger­ry­man­dered GOP map has tilt­ed the play­ing field a great deal more. That map has giv­en Repub­li­cans a grip on the Leg­is­la­ture that is entire­ly dis­pro­por­tion­ate to the party’s lev­el of pop­u­lar sup­port in the state and no doubt embold­ened the par­ty when it moved this week to dimin­ish the pow­ers [9] of the incom­ing Demo­c­ra­t­ic gov­er­nor and attor­ney gen­er­al.

The vic­to­ry of Evers Nov. 6 means that the next leg­isla­tive map (in place for the 2022 elec­tions) will like­ly be less par­ti­san than the cur­rent one because it will be the prod­uct of divid­ed gov­ern­ment.

But since 2011, that map has effec­tive­ly locked in large GOP majori­ties, even in an elec­tion year like 2012 [10], when Democ­rats car­ried Wis­con­sin for pres­i­dent by 7 points. These majori­ties are utter­ly pre­dictable when more than 60% of the Assem­bly seats are more Repub­li­can than the state as a whole.

...

———-

“New elec­tion data high­lights the ongo­ing impact of 2011 GOP redis­trict­ing in Wis­con­sin” by Craig Gilbert; Mil­wau­kee Jour­nal Sen­tinel; 12/06/2018 [5]

“In oth­er words, Repub­li­cans enjoy a built-in 64–35 advan­tage in the par­ti­san make­up of the 99 Assem­bly dis­tricts. In a hypo­thet­i­cal 50–50 elec­tion, in which there are equal num­bers of Demo­c­ra­t­ic and Repub­li­can vot­ers in Wis­con­sin, no one cross­es par­ty lines and inde­pen­dents split down the mid­dle, that trans­lates into a mas­sive 29-seat GOP advan­tage in the Assem­bly. That’s very close to the 27-seat mar­gin (63–36) that Repub­li­cans won last month.

Out of Wis­con­sin’s 99 state assem­bly dis­tricts, the GOP has a 29-seat edge based on ger­ry­man­der­ing and the ger­ry­man­der­ing-like fea­ture of Demo­c­ra­t­ic vot­ers being con­cen­trat­ed in urban areas. Effec­tive ger­ry­man­der­ing requires strate­gi­cal­ly spread­ing out your par­ty’s vot­ers across dis­tricts and Repub­li­can vot­ers are much more spread out than Democ­rats. And the mid-term elec­tions accu­rate­ly reflect­ed that 29-seat edge with a 27-seat edge for the GOP fol­low­ing the Democ­rats win­ning 53% of the Assem­bly vote. As a result, the Wis­con­sin Democ­rats needs to out­per­form the GOP by clos­er to 9 to 10 points to have a decent shot of win­ning a major­i­ty in the Assem­bly. The cheat­ing worked as expect­ed. Races are so pre­dictable and uncom­pet­i­tive that the GOP did­n’t even both­er field­ing can­di­dates in 30 of the ulta-‘blue’ dis­tricts. Yes, of the 36 dis­tricts the Democ­rats won, 30 of them were uncon­test­ed by the Repub­li­cans. That’s how bro­ken Wis­con­sin’s elec­tions are as a result of par­ti­san ger­ry­man­der­ing and how effec­tive­ly the GOP ger­ry­man­der­ing con­cen­trat­ed Democ­rats into dis­tricts:

...
Every elec­tion since the cur­rent map was drawn has told the same sto­ry:

* Repub­li­cans enjoy a nat­ur­al edge in the bat­tle for the Leg­is­la­ture because Demo­c­ra­t­ic vot­ers are more con­cen­trat­ed geo­graph­i­cal­ly in urban areas, espe­cial­ly in Mil­wau­kee and Madi­son, mean­ing their vot­ing pow­er is con­fined to a small­er num­ber of dis­tricts.

* The leg­isla­tive map drawn by the GOP in 2011 added great­ly to that nat­ur­al Repub­li­can advan­tage. Under the old map, Democ­rats had to out­per­form the GOP by 2 or 3 points statewide to have a good shot at win­ning con­trol of the Assem­bly. But under the cur­rent map, Democ­rats need to out-per­form the GOP by clos­er to 9 or 10 points statewide to have a good shot at win­ning an Assem­bly major­i­ty.

* Aside from lock­ing in Repub­li­can con­trol, the ger­ry­man­dered map has almost killed off com­pet­i­tive Assem­bly elec­tions. To max­i­mize their par­ti­san advan­tage, Repub­li­cans drew a minor­i­ty of huge­ly lop­sided Demo­c­ra­t­ic dis­tricts (min­i­miz­ing the impact of the Demo­c­ra­t­ic vote) and a siz­able major­i­ty of less lop­sided but safe GOP seats. That leaves hard­ly any tru­ly “pur­ple” Assem­bly dis­tricts in this “pur­ple” state. In the Nov. 6 elec­tion, only five of 99 Assem­bly races were decid­ed by less than 5 points. Only two were decid­ed by less than 3 points.

...

To win a bare major­i­ty of 50 seats, Democ­rats would have need­ed to win at least 14 seats that Walk­er car­ried, includ­ing nine he car­ried by more than 5 points. In an era of dimin­ished tick­et-split­ting, that wasn’t remote­ly going to hap­pen. Repub­li­can Assem­bly can­di­dates won all but two of the 63 dis­tricts car­ried by Walk­er. And Demo­c­ra­t­ic Assem­bly can­di­dates won all by two of the 36 Assem­bly dis­tricts car­ried by Evers.

...

As crit­ics of the map have point­ed out, Democ­rats won 53% of all the Assem­bly votes cast statewide while com­ing away with only 36% of the seats. But it would be wrong to sug­gest Democ­rats should have won 53% of the Assem­bly seats under a fair map. The GOP didn’t both­er to field can­di­dates against 30 Democ­rats in ultra-blue Assem­bly dis­tricts, so using the statewide Assem­bly vote as a mea­sure of how many seats Democ­rats “should have” won is mis­lead­ing.
...

And that’s just Wis­con­sin. It’s a bad exam­ple, but still just an exam­ple. Vir­tu­al­ly every Repub­li­can-dom­i­nat­ed state has engaged in as extreme ger­ry­man­der­ing as pos­si­ble in 2011.

Why Rucho v. Com­mon Cause Hap­pened: Because John Roberts is a Cham­pi­on of Free­dom of Speech (For Bil­lion­aires Only)

Next, let’s take a look at the actu­al Supreme Court rul­ing that hand­ed con­trol of the redis­trict­ing process back to the states. The case, Rucho v. Com­mon Cause, pre­sent­ed a sim­ple ques­tion to the court: can fed­er­al courts place lim­its on par­ti­san ger­ry­man­der­ing? It was a sim­ple ques­tion the 5–4 con­ser­v­a­tive major­i­ty with a “No”. Why can’t fed­er­al courts rule on such mat­ters? Because, accord­ing to Chief Jus­tice John Roberts, there’s no estab­lished stan­dard for what is too polit­i­cal and it that if the fed­er­al courts did lim­it par­ti­san ger­ry­man­der­ing that would expand “judi­cial author­i­ty” into one of the most intense­ly par­ti­san aspects of Amer­i­can polit­i­cal life. So fed­er­al courts can’t get involved with lim­it­ed par­ti­san ger­ry­man­der­ing because ger­ry­man­der­ing is extreme­ly par­ti­san in nature and there aren’t estab­lished stan­dards for what’s too par­ti­san. That was seri­ous­ly the con­ser­v­a­tive major­i­ty’s ‘rea­son­ing’.

Beyond that, as the fol­low­ing arti­cle describes, the rul­ing was pred­i­cat­ed on a pre­pos­ter­ous argu­ment that par­ti­san ger­ry­man­der­ing does­n’t impose any sort of bur­den on vot­ers, in par­tic­u­lar their free speech. As the plain­tiffs in the case argued and Judge Kagan point­ed out in her dis­sent, par­ti­san ger­ry­man­der­ing is clear­ly pun­ish­ing vot­ers based on their expressed polit­i­cal view­points. That’s the entire point of par­ti­san ger­ry­man­der­ing: to dilute the polit­i­cal rep­re­sen­ta­tion of one par­ty’s vot­ers over anoth­er and this is done based on how the par­ty iden­ti­fi­ca­tion of vot­ers. But accord­ing to John Roberts, par­ti­san ger­ry­man­der­ing does no harm to the free­dom of expres­sion of vot­ers because they’re still free to cam­paign and per­suade oth­er vot­ers in their ger­ry­man­dered dis­tricts.

As the arti­cle also points out, part of what makes this legal rea­son­ing by Roberts so absurd is that Roberts has pre­vi­ous­ly tak­en a very dif­fer­ent atti­tude towards poten­tial infringe­ments of free speech when it came to the free of of bil­lion­aire mega donors. In 2011, When Ari­zona Free Enter­prise v. Ben­nett was before the courts, Roberts argued that it was right to strike down an Ari­zona cam­paign finance law that pro­vid­ed pub­lic financ­ing can­di­dates that rough­ly matched the pri­vate dona­tions from mega donors of oppo­nents. Why did Roberts feel that pub­lic match­ing funds to bal­ance pri­vate mega donor dona­tions should be stopped? Because Roberts felt that such a sys­tem dis­suad­ed the wealthy donors from con­tribut­ing in the first place and that harmed their free speech. Yep, Roberts was against pub­lic match­ing fund­ing because match­ing funds might con­vince wealthy donors that they won’t get as big a rel­a­tive advan­tage in mak­ing large polit­i­cal dona­tions and that harms their free speech. The fact that the match­ing funds would actu­al­ly be used to pay for more speech did­n’t was ‘trumped’ by the dis­in­cen­tives the law cre­at­ed for wealth donors.

That’s how del­i­cate­ly Roberts han­dled poten­tial infringe­ments of free expres­sion when it came to the free expres­sion of wealth donors. But when it comes to the free expres­sion of aver­age vot­ers see­ing their polit­i­cal rep­re­sen­ta­tion sys­tem­at­i­cal­ly dilut­ed through par­ti­san ger­ry­man­der­ing based on the par­ty self-iden­ti­fi­ca­tion, there’s no harm to free­dom of expres­sion in that case. That dis­par­i­ty between Robert­s’s con­cerns over the poten­tial dam­age to aver­age vot­ers’ free­dom of expres­sion and bil­lion­aire free­dom of expres­sion was a key fac­tor in allow­ing the Roberts court to make this his­tor­i­cal­ly dam­ag­ing Rucho v. Com­mon Cause rul­ing, which under­scores the fact that this rul­ing is sim­ply unprin­ci­pled pay back by the con­ser­v­a­tive major­i­ty to the pow­er bro­kers who put them there [11]:

Slate

John Roberts Thinks Bil­lion­aires Deserve Greater First Amend­ment Pro­tec­tions Than Vot­ers

By Mark Joseph Stern
June 27, 2019 2:53 PM

In Feb­ru­ary, Chief Jus­tice John Roberts tout­ed his com­mit­ment to free speech, declar­ing [12]: “I think I’m prob­a­bly the most aggres­sive defend­er of the First Amend­ment on the court now.”

On Thurs­day, he autho­rized one of the most effec­tive and wide­spread attacks on free speech today, pro­hibit­ing fed­er­al courts from rein­ing in par­ti­san ger­ry­man­ders. Roberts’ deci­sion in Rucho v. Com­mon Cause [13] will have a dev­as­tat­ing impact on free­dom of expres­sion in the Unit­ed States, allow­ing law­mak­ers to pun­ish vot­ers for their polit­i­cal views by dilut­ing their votes. It is the court’s most dis­as­trous betray­al of the First Amend­ment in recent mem­o­ry.

Rucho posed a sim­ple ques­tion: Can fed­er­al courts place lim­its on par­ti­san ger­ry­man­der­ing? The answer should be obvi­ous, for two sim­ple rea­sons. First, these ger­ry­man­ders impose grave con­sti­tu­tion­al harm on cit­i­zens. Sec­ond, they are not at all dif­fi­cult for courts to rem­e­dy. There is noth­ing unique­ly chal­leng­ing about mea­sur­ing and fix­ing par­ti­san ger­ry­man­ders, as mul­ti­ple [14] low­er courts [15] have already demon­strat­ed. The task falls square­ly with­in the court’s duty to pro­tect Amer­i­cans’ con­sti­tu­tion­al rights—indeed, to safe­guard the most impor­tant right, an abil­i­ty to par­tic­i­pate equal­ly in self-gov­er­nance.

Yet Roberts, joined by the remain­ing con­ser­v­a­tives, declared oth­er­wise in a 5–4 deci­sion. He insist­ed that par­ti­san ger­ry­man­ders “present polit­i­cal ques­tions beyond the reach of the fed­er­al courts.” To lim­it this prac­tice, Roberts wrote, would be to expand “judi­cial author­i­ty … into one of the most intense­ly par­ti­san aspects of Amer­i­can polit­i­cal life.” And he wrote that fed­er­al courts are ill-suit­ed to decide when par­ti­san ger­ry­man­der­ing “goes too far,” as they lack a stan­dard by which to mea­sure a party’s ille­git­i­mate entrench­ment of polit­i­cal pow­er.

To reach this con­clu­sion, Roberts shrugged off the seri­ous con­sti­tu­tion­al injuries inflict­ed by polit­i­cal redis­trict­ing. Most notably, he dis­missed the plain­tiffs’ the­o­ry that extreme par­ti­san ger­ry­man­der­ing vio­lates the First Amend­ment. There are, Roberts wrote, “no restric­tions on speech, asso­ci­a­tion, or any oth­er First Amend­ment activ­i­ties in the dis­trict­ing plans at issue. The plain­tiffs are free to engage in those activ­i­ties no mat­ter what the effect of a plan may be on their dis­trict.” He scoffed at the puta­tive “bur­den” that ger­ry­man­der­ing placed on the plain­tiffs, cit­ing “slight anec­do­tal evi­dence” that the minor­i­ty par­ty had “dif­fi­cul­ty drum­ming up vol­un­teers and enthu­si­asm.” This alone, Roberts sug­gest­ed, did not prove a First Amend­ment infringe­ment.

Unless the chief jus­tice failed to grasp the plain­tiffs’ actu­al the­o­ry, he must know this pas­sage is incred­i­bly mis­lead­ing. The plain­tiffs here argued, cor­rect­ly, that par­ti­san ger­ry­man­der­ing impos­es a fla­grant and imme­di­ate bur­den on First Amend­ment rights. It isn’t just about “drum­ming up volunteers”—it’s about law­mak­ers penal­iz­ing vot­ers on the basis of their polit­i­cal expres­sion and asso­ci­a­tion. Take North Car­oli­na, where Repub­li­can leg­is­la­tors inten­tion­al­ly dilut­ed the votes of cit­i­zens who expressed sup­port for the Demo­c­ra­t­ic Par­ty. In vir­tu­al­ly any oth­er con­text, this action would con­sti­tute view­point dis­crim­i­na­tion [16], a car­di­nal sin under the First Amend­ment. Why doesn’t it here?

Roberts seems to believe that this view­point dis­crim­i­na­tion is OK because it cre­ates “no restric­tions” on expres­sion. If that’s true, I am not sure how Roberts can jus­ti­fy his opin­ion in 2011’s Ari­zona Free Enter­prise v. Ben­nett [17], a 5–4 deci­sion strik­ing down a key com­po­nent of Arizona’s pub­licly financed elec­tions. Under the law, Ari­zona pro­vid­ed funds to pub­licly financed can­di­dates that rough­ly matched the amount spent by their oppo­nents. The goal was to cre­ate com­pet­i­tive races by ensur­ing that all can­di­dates had suf­fi­cient resources to cam­paign.

Arizona’s law cre­at­ed “no restric­tions” on expres­sion and cer­tain­ly didn’t penal­ize speech on the basis of view­point. But Roberts and the con­ser­v­a­tive jus­tices struck it down any­way, writ­ing that it “sub­stan­tial­ly bur­dens the speech of pri­vate­ly financed can­di­dates” by fright­en­ing them into spend­ing less. Real­ly? Accord­ing to Roberts, a law designed to increase polit­i­cal speech by help­ing more can­di­dates par­tic­i­pate in elec­tions “sub­stan­tial­ly bur­dens pro­tect­ed polit­i­cal speech” because it dis­suades big donors from writ­ing big­ger checks. To Jus­tice Ele­na Kagan, writ­ing in dis­sent, that was pure mad­ness. “The sys­tem dis­crim­i­nat­ed against no ideas and pre­vent­ed no speech,” she wrote. To the con­trary, it plain­ly fur­thered “First Amend­ment val­ues.”

It is dif­fi­cult to under­stand a the­o­ry of the First Amend­ment that per­mits par­ti­san ger­ry­man­der­ing (in part because it impos­es “no restric­tions” on vot­ers’ expres­sion) while for­bid­ding a match­ing-fund cam­paign finance scheme (because it “bur­dens” big donors’ speech). Roberts’ deci­sions in Rucho and Ari­zona Free Enter­prise can­not be squared. The only plau­si­ble expla­na­tion is that the chief jus­tice val­ues the expres­sion of high-dol­lar donors more than he val­ues the expres­sion of vot­ers. “There is no right more basic in our democ­ra­cy than the right to par­tic­i­pate in elect­ing our polit­i­cal lead­ers,” Roberts wrote in anoth­er deci­sion [18] strik­ing down cam­paign finance restric­tions. Appar­ent­ly, that right applies with greater force to bil­lion­aires writ­ing checks than it does to vot­ers cast­ing bal­lots.

...

In her pow­er­ful Rucho dis­sent [19], Kagan pin­point­ed exact­ly where Roberts went so awry. She wrote that extreme par­ti­san ger­ry­man­ders “under­mine the pro­tec­tions” of “democ­ra­cy embod­ied in the First Amend­ment.” She explained how courts can eas­i­ly deter­mine whether a ger­ry­man­der “sub­stan­tial­ly dilutes the votes of a rival party’s sup­port­ers.” She laid out all the tools that courts have already used to inval­i­date and cor­rect par­ti­san ger­ry­man­ders. “That kind of over­sight,” Kagan not­ed, “is not only pos­si­ble; it’s been done.”

But that didn’t mat­ter to Roberts and his fel­low con­ser­v­a­tives. They aban­doned the Con­sti­tu­tion just when its guar­an­tees were most nec­es­sary to pro­tect democ­ra­cy. And they ignored the courts’ proven abil­i­ty to apply these guar­an­tees in a man­ner that vin­di­cates free expres­sion. With Rucho, Roberts has turned the First Amend­ment on its head, deny­ing vot­ers a shield against law­mak­ers who rig elec­tions by retal­i­at­ing against polit­i­cal speech. “The prac­tices chal­lenged in these cas­es,” Kagan wrote, “imper­il our sys­tem of gov­ern­ment. Part of the Court’s role in that sys­tem is to defend its foun­da­tions.” Thanks in part to Rucho, those foun­da­tions will con­tin­ue to crum­ble.

————

“John Roberts Thinks Bil­lion­aires Deserve Greater First Amend­ment Pro­tec­tions Than Vot­ers” by Mark Joseph Stern; Slate; 06/27/2019 [11]

“On Thurs­day, he autho­rized one of the most effec­tive and wide­spread attacks on free speech today, pro­hibit­ing fed­er­al courts from rein­ing in par­ti­san ger­ry­man­ders. Roberts’ deci­sion in Rucho v. Com­mon Cause [13] will have a dev­as­tat­ing impact on free­dom of expres­sion in the Unit­ed States, allow­ing law­mak­ers to pun­ish vot­ers for their polit­i­cal views by dilut­ing their votes. It is the court’s most dis­as­trous betray­al of the First Amend­ment in recent mem­o­ry. ”

Amer­i­can vot­ers can now be tar­get­ed for polit­i­cal pun­ish­ment in the form of inten­tion­al­ly dilut­ed polit­i­cal rep­re­sen­ta­tion and the fed­er­al courts can’t step in. And at the core of this deci­sion was the con­clu­sion that par­ti­san ger­ry­man­der­ing does­n’t actu­al­ly harm vot­ers. Why does­n’t it harm vot­ers? Because it does­n’t harm their free­dom of expres­sion, accord­ing to the con­ser­v­a­tive major­i­ty. It’s a rul­ing built on lay­ers of bad faith rea­son­ing from the chief jus­tice:

...
Yet Roberts, joined by the remain­ing con­ser­v­a­tives, declared oth­er­wise in a 5–4 deci­sion. He insist­ed that par­ti­san ger­ry­man­ders “present polit­i­cal ques­tions beyond the reach of the fed­er­al courts.” To lim­it this prac­tice, Roberts wrote, would be to expand “judi­cial author­i­ty … into one of the most intense­ly par­ti­san aspects of Amer­i­can polit­i­cal life.” And he wrote that fed­er­al courts are ill-suit­ed to decide when par­ti­san ger­ry­man­der­ing “goes too far,” as they lack a stan­dard by which to mea­sure a party’s ille­git­i­mate entrench­ment of polit­i­cal pow­er.

To reach this con­clu­sion, Roberts shrugged off the seri­ous con­sti­tu­tion­al injuries inflict­ed by polit­i­cal redis­trict­ing. Most notably, he dis­missed the plain­tiffs’ the­o­ry that extreme par­ti­san ger­ry­man­der­ing vio­lates the First Amend­ment. There are, Roberts wrote, “no restric­tions on speech, asso­ci­a­tion, or any oth­er First Amend­ment activ­i­ties in the dis­trict­ing plans at issue. The plain­tiffs are free to engage in those activ­i­ties no mat­ter what the effect of a plan may be on their dis­trict.” He scoffed at the puta­tive “bur­den” that ger­ry­man­der­ing placed on the plain­tiffs, cit­ing “slight anec­do­tal evi­dence” that the minor­i­ty par­ty had “dif­fi­cul­ty drum­ming up vol­un­teers and enthu­si­asm.” This alone, Roberts sug­gest­ed, did not prove a First Amend­ment infringe­ment.

Unless the chief jus­tice failed to grasp the plain­tiffs’ actu­al the­o­ry, he must know this pas­sage is incred­i­bly mis­lead­ing. The plain­tiffs here argued, cor­rect­ly, that par­ti­san ger­ry­man­der­ing impos­es a fla­grant and imme­di­ate bur­den on First Amend­ment rights. It isn’t just about “drum­ming up volunteers”—it’s about law­mak­ers penal­iz­ing vot­ers on the basis of their polit­i­cal expres­sion and asso­ci­a­tion. Take North Car­oli­na, where Repub­li­can leg­is­la­tors inten­tion­al­ly dilut­ed the votes of cit­i­zens who expressed sup­port for the Demo­c­ra­t­ic Par­ty. In vir­tu­al­ly any oth­er con­text, this action would con­sti­tute view­point dis­crim­i­na­tion [16], a car­di­nal sin under the First Amend­ment. Why doesn’t it here?

...

In her pow­er­ful Rucho dis­sent [19], Kagan pin­point­ed exact­ly where Roberts went so awry. She wrote that extreme par­ti­san ger­ry­man­ders “under­mine the pro­tec­tions” of “democ­ra­cy embod­ied in the First Amend­ment.” She explained how courts can eas­i­ly deter­mine whether a ger­ry­man­der “sub­stan­tial­ly dilutes the votes of a rival party’s sup­port­ers.” She laid out all the tools that courts have already used to inval­i­date and cor­rect par­ti­san ger­ry­man­ders. “That kind of over­sight,” Kagan not­ed, “is not only pos­si­ble; it’s been done.”

But that didn’t mat­ter to Roberts and his fel­low con­ser­v­a­tives. They aban­doned the Con­sti­tu­tion just when its guar­an­tees were most nec­es­sary to pro­tect democ­ra­cy. And they ignored the courts’ proven abil­i­ty to apply these guar­an­tees in a man­ner that vin­di­cates free expres­sion. With Rucho, Roberts has turned the First Amend­ment on its head, deny­ing vot­ers a shield against law­mak­ers who rig elec­tions by retal­i­at­ing against polit­i­cal speech. “The prac­tices chal­lenged in these cas­es,” Kagan wrote, “imper­il our sys­tem of gov­ern­ment. Part of the Court’s role in that sys­tem is to defend its foun­da­tions.” Thanks in part to Rucho, those foun­da­tions will con­tin­ue to crum­ble.
...

And part of what makes the bad faith behind this rul­ing so clear is how wild­ly dif­fer­ent Roberts treat­ed the pos­si­ble dam­age to free­dom of expres­sion in the 2011 Ari­zona Free Enter­prise v. Ben­nett, where the dis­in­cen­tives that pub­lic match­ing funds cre­at­ed for wealthy donors to con­tin­ue donat­ing was deemed by Roberts to be so dam­ag­ing to the free­dom of expres­sion of those wealth donors that the law had to be struck down:

...
Roberts seems to believe that this view­point dis­crim­i­na­tion is OK because it cre­ates “no restric­tions” on expres­sion. If that’s true, I am not sure how Roberts can jus­ti­fy his opin­ion in 2011’s Ari­zona Free Enter­prise v. Ben­nett [17], a 5–4 deci­sion strik­ing down a key com­po­nent of Arizona’s pub­licly financed elec­tions. Under the law, Ari­zona pro­vid­ed funds to pub­licly financed can­di­dates that rough­ly matched the amount spent by their oppo­nents. The goal was to cre­ate com­pet­i­tive races by ensur­ing that all can­di­dates had suf­fi­cient resources to cam­paign.

Arizona’s law cre­at­ed “no restric­tions” on expres­sion and cer­tain­ly didn’t penal­ize speech on the basis of view­point. But Roberts and the con­ser­v­a­tive jus­tices struck it down any­way, writ­ing that it “sub­stan­tial­ly bur­dens the speech of pri­vate­ly financed can­di­dates” by fright­en­ing them into spend­ing less. Real­ly? Accord­ing to Roberts, a law designed to increase polit­i­cal speech by help­ing more can­di­dates par­tic­i­pate in elec­tions “sub­stan­tial­ly bur­dens pro­tect­ed polit­i­cal speech” because it dis­suades big donors from writ­ing big­ger checks. To Jus­tice Ele­na Kagan, writ­ing in dis­sent, that was pure mad­ness. “The sys­tem dis­crim­i­nat­ed against no ideas and pre­vent­ed no speech,” she wrote. To the con­trary, it plain­ly fur­thered “First Amend­ment val­ues.”

It is dif­fi­cult to under­stand a the­o­ry of the First Amend­ment that per­mits par­ti­san ger­ry­man­der­ing (in part because it impos­es “no restric­tions” on vot­ers’ expres­sion) while for­bid­ding a match­ing-fund cam­paign finance scheme (because it “bur­dens” big donors’ speech). Roberts’ deci­sions in Rucho and Ari­zona Free Enter­prise can­not be squared. The only plau­si­ble expla­na­tion is that the chief jus­tice val­ues the expres­sion of high-dol­lar donors more than he val­ues the expres­sion of vot­ers. “There is no right more basic in our democ­ra­cy than the right to par­tic­i­pate in elect­ing our polit­i­cal lead­ers,” Roberts wrote in anoth­er deci­sion [18] strik­ing down cam­paign finance restric­tions. Appar­ent­ly, that right applies with greater force to bil­lion­aires writ­ing checks than it does to vot­ers cast­ing bal­lots.
...

Hyper-sen­si­tiv­i­ty for the free­dom of expres­sion of bil­lion­aires. No sen­si­tiv­i­ty for the free­dom of expres­sion of aver­age vot­ers expe­ri­enc­ing hyper-par­ti­san ger­ry­man­der­ing. That’s the legal stan­dard now.

How Rucho v. Com­mon Cause Became a Vic­to­ry for Bil­lion­aires and Big Cor­po­ra­tions vs Every­one Else

But as the next arti­cle points out, as dev­as­tat­ing as the Supreme Court’s deci­sion on ger­ry­man­der­ing is to Amer­i­can democ­ra­cy and the basic prin­ci­ple of major­i­ty rule and equal rep­re­sen­ta­tion, it’s impor­tant to keep in mind that this dev­as­tat­ing blow is just one blow in a much broad­er anti-democ­ra­cy agen­da designed to blow up democ­ra­cy and per­ma­nent­ly imple­ment Amer­i­ca’s real ‘elite’ agen­da.

In 2010, Karl Rove was com­plete­ly out in the open about the intent of the Repub­li­cans to max­i­mize the par­ti­san ger­ry­man­der­ing dur­ing the then-upcom­ing redis­trict­ing cycle in 2011. He even wrote an op-ed in the Wall Street Jour­nal advo­cat­ing exact­ly that [20]. Those efforts mor­phed into the Repub­li­can State Lead­er­ship Com­mit­tee’s “Project REDMAP” [21], a shad­ow-mon­ey-financed nation­al cam­paign [22] to strate­gi­cal­ly tar­get state races and gov­er­nor­ships that would be most help­ful giv­ing the GOP con­trol the 2011 redis­trict­ing process and then max­i­mize the par­ti­san ger­ry­man­der­ing.

It’s worth not­ing that Thomas Hofeller, the Repub­li­can Par­ty’s go-to expert on ger­ry­man­der­ing who died last year, pro­vid­ed REDMAP with the exper­tise on using demo­graph­ic data to draw dis­trict lines for max­i­mum par­ti­san advan­tage [23]. Hofeller’s per­son­al doc­u­ments are now at the cen­ter of the ongo­ing legal dis­pute over whether or not to add a cit­i­zen­ship ques­tion to the cen­sus because the doc­u­ments clear­ly estab­lish that Hofeller was inten­tion­al­ly try­ing to reduce the vot­ing pow­er of Democ­rats and His­pan­ics while boost­ing the vot­ing pow­er of “Repub­li­cans and non-His­pan­ic Whites” by adding a cit­i­zen­ship ques­tion to the cen­sus [24]. So the per­son­al doc­u­ments of the ger­ry­man­der­ing guru the Repub­li­cans relied on to max­i­mize their par­ti­san ger­ry­man­der­ing in 2011 reveal that he was also try­ing to use the cit­i­zen­ship cen­sus ques­tion to dilute the vot­ing pow­er of Democ­rats and His­pan­ics and bol­ster the vot­ing pow­er of Whites and Repub­li­cans. That’s in their own words.

As the arti­cle also points out, North Car­oli­na Rep. David Lewis, who helped draw one of the maps at issue in Rucho, was even more blunt dur­ing in a 2016 state­house speech about his par­ti­san motives for draw­ing the ger­ry­man­dered map. Lewis flat­ly state, “I think elect­ing Repub­li­cans is bet­ter than elect­ing Democrats...So I drew this map in a way to help fos­ter what I think is bet­ter for the coun­try.” And accord­ing to the con­ser­v­a­tive major­i­ty on Supreme Court, it’s not pos­si­ble for fed­er­al courts to say whether or not Lewis was being too par­ti­san. And this bad faith rea­son­ing on the part of the Supreme Court’s con­ser­v­a­tive major­i­ty is part of a broad­er Repub­li­can aban­don­ment of equal rep­re­sen­ta­tion and democ­ra­cy in gen­er­al that the Repub­li­cans aren’t even hid­ing any­more [25]:

Vox.com

The Supreme Court, ger­ry­man­der­ing, and the Repub­li­can turn against democ­ra­cy

A big­ger threat to Amer­i­can democ­ra­cy than Don­ald Trump.

By Zack Beauchamp
Jun 27, 2019, 2:30pm EDT

The Supreme Court’s Thurs­day morn­ing rul­ing in Rucho v. Com­mon Cause amounts to a blank check for par­ti­san ger­ry­man­der­ing. Chief Jus­tice John Roberts’s opin­ion [13] holds that fed­er­al courts should not have the pow­er to declare par­tic­u­lar maps uncon­sti­tu­tion­al, as doing so would be “unprece­dent­ed expan­sion of judi­cial pow­er ... into one of the most intense­ly par­ti­san aspects of Amer­i­can polit­i­cal life.”

What this means, in prac­tice, is that local author­i­ties get to decide on the shape of House and state leg­isla­tive dis­tricts. Par­ties that con­trol state­hous­es will be freer to not only cement their own hold on pow­er but ensure that their par­ty sends more rep­re­sen­ta­tives to Wash­ing­ton as well.

While Repub­li­cans and Democ­rats both ger­ry­man­der, there is no doubt that Repub­li­cans do it more and more shame­less­ly. North Car­oli­na Rep. David Lewis, who helped draw one of the maps at issue in Rucho, was admirably hon­est about his motives in a 2016 state­house speech.

“I think elect­ing Repub­li­cans is bet­ter than elect­ing Democ­rats,” hhe explained [26]. “So I drew this map in a way to help fos­ter what I think is bet­ter for the coun­try.”

This prin­ci­ple — that Repub­li­cans believe their rule is bet­ter and are will­ing to do what­ev­er it takes to ensure they take and hold pow­er — does not mere­ly lead to ger­ry­man­der­ing. It has pro­duced a whole host of unde­mo­c­ra­t­ic actions, at both state and fed­er­al lev­els, that amount to a sys­tem­at­ic threat to Amer­i­can democ­ra­cy. Indeed, some of the best schol­ar­ship we have on Amer­i­can democ­ra­cy sug­gests that this is even more alarm­ing than it sounds; that it fits his­tor­i­cal pat­terns of demo­c­ra­t­ic back­slid­ing both in the Unit­ed States and abroad.

In her dis­sent to Roberts’s rul­ing, Jus­tice Ele­na Kagan [27] wrote that “ger­ry­man­ders like the ones here may irrepara­bly dam­age our sys­tem of gov­ern­ment.” I’d take it a step fur­ther.

The Court’s rul­ing in Rucho reveals that there’s a threat to Amer­i­can democ­ra­cy more sub­tle and yet greater than the Trump pres­i­den­cy: the Repub­li­can Party’s drift toward being insti­tu­tion­al­ly hos­tile to democ­ra­cy.

The Court’s rul­ing per­mits a sys­tem­at­ic attack on democ­ra­cy

Par­ti­san ger­ry­man­der­ing is, on its face, an obvi­ous­ly anti-demo­c­ra­t­ic prac­tice. State leg­is­la­tors pack large num­bers of vot­ers from the oppos­ing par­ty into a hand­ful of leg­isla­tive dis­tricts, thus ensur­ing their vot­ers dom­i­nate the bulk of dis­tricts and hand them a major­i­ty. It gives their sup­port­ers’ votes more weight, a direct vio­la­tion of the core demo­c­ra­t­ic prin­ci­ples relat­ing to equal cit­i­zen­ship and rep­re­sen­ta­tion.

His­tor­i­cal­ly, both par­ties have engaged in par­ti­san ger­ry­man­der­ing: Rucho itself con­cerned both the Repub­li­can map in North Car­oli­na and a Demo­c­ra­t­ic map in Mary­land. But the GOP has embraced the fash­ion in a far more sys­tem­at­ic and trou­bling fash­ion.

In 2010, Repub­li­can strate­gist Karl Rove wrote an op-ed in the Wall Street Jour­nal advo­cat­ing a sig­nif­i­cant Repub­li­can push [20] to ger­ry­man­der leg­isla­tive dis­tricts after that year’s midterm elec­tions. Rove’s idea man­i­fest­ed as Project REDMAP, a dark-mon­ey cam­paign to sup­port Repub­li­can can­di­dates for state leg­is­la­ture and then help them redraw House dis­tricts after the 2010 cen­sus [28].

We first saw the results of this process in 2012, when Repub­li­cans held the House despite more Amer­i­cans vot­ing for Demo­c­ra­t­ic House can­di­dates than Repub­li­can ones. The con­se­quences per­sist, mak­ing it sig­nif­i­cant­ly hard­er for Democ­rats to win office in places around the coun­try.

In the 2018 elec­tion, Repub­li­cans won about 50 per­cent of the US House vote in North Car­oli­na. That trans­lat­ed into 70 per­cent of House seats due to heav­i­ly ger­ry­man­dered dis­tricts [29]. Wis­con­sin Democ­rats won every statewide elec­tion in 2018 but did not win majori­ties in either cham­ber of the state leg­is­la­ture. Once again, ger­ry­man­ders are to blame [30].

The Rucho rul­ing allows Repub­li­cans to con­tin­ue this cam­paign and even esca­late it, as they don’t have to wor­ry about out­ra­geous maps get­ting rolled back by fed­er­al courts.. “John Roberts ... gave the Repub­li­cans a green light to ger­ry­man­der to their hearts con­tent,” UC Irvine elec­tion law expert Rick Hasen writes at Slate [31].

The nation­al Repub­li­can cam­paign to cement their con­trol over state leg­is­la­tures and con­gres­sion­al del­e­ga­tions is not only hard­er to fight back but could very well get worse.

The Repub­li­can drift against democ­ra­cy — and the Court’s role in it

But ger­ry­man­der­ing is just one piece of a much broad­er GOP offen­sive to rig the sys­tem in their favor. This isn’t some kind of mas­ter plan to destroy democ­ra­cy so much as a series of dis­crete tac­tics, each a pow­er grab in its own right, that add up to imper­il Amer­i­can democ­ra­cy itself.

Vot­er ID laws pushed in Repub­li­can states have cre­at­ed not-insignif­i­cant bar­ri­ers to vot­ing for many black and His­pan­ic vot­ers [32]. Repub­li­can state gov­ern­ments have con­duct­ed vot­er purges that dis­pro­por­tion­ate­ly clear minor­i­ty vot­ers [33] from the rolls. After two elec­tions where Repub­li­cans lost con­trol of the gov­er­nor­ship, North Car­oli­na in 2016 and Wis­con­sin in 2018 [34], the state leg­is­la­tures stripped pow­er from new Demo­c­ra­t­ic gov­er­nors before they could take office. Florida’s Repub­li­can-con­trolled leg­is­la­ture just defanged a bal­lot ini­tia­tive [35] passed in 2018 that would allow ex-felons to vote, lit­er­al­ly deny­ing the fran­chise to a heav­i­ly black (and thus heav­i­ly Demo­c­ra­t­ic) con­stituen­cy.

While these exam­ples come from the state lev­el, as that’s where elec­toral law is pri­mar­i­ly set in the US sys­tem, they’ve been either direct­ly sup­port­ed by the nation­al par­ty or tac­it­ly approved.

Mean­while, the fed­er­al GOP has engaged in its own forms of anti-demo­c­ra­t­ic pol­i­tics, the most infa­mous exam­ple being Sen­ate Major­i­ty Leader Mitch McConnell’s block­ade of Mer­rick Garland’s Supreme Court nom­i­na­tion. Repub­li­cans in Con­gress have refused to con­sid­er state­hood pro­pos­als for DC and Puer­to Rico, essen­tial­ly deny­ing Sen­ate and House rep­re­sen­ta­tion for mil­lions of US cit­i­zens. The par­ty depends on unde­mo­c­ra­t­ic insti­tu­tions like the Elec­toral Col­lege and the Sen­ate — ones that give dis­pro­por­tion­ate weight to vot­ers in Repub­li­can-dom­i­nat­ed states — to main­tain pow­er, and thus needs to pre­vent reforms that would move the coun­try towards a truer form of one per­son, one vote.

The GOP dom­i­nance of the Supreme Court has played an impor­tant role in this over­all democ­ra­cy-threat­en­ing drift. Under Chief Jus­tice Roberts, the Court has struck down Vot­ing Rights Act pro­vi­sions that attempt­ed to cur­tail ger­ry­man­ders along racial lines in the Shel­by Coun­ty case and removed restric­tions on dark-mon­ey con­tri­bu­tions in the infa­mous Cit­i­zens Unit­ed rul­ing. Under Roberts, the Court is sys­tem­at­i­cal­ly remov­ing judi­cial con­straints on the nation­wide GOP’s cor­ro­sions of demo­c­ra­t­ic insti­tu­tions.

“All of this talk about Roberts being the swing vote, or wor­ried about appear­ances of being polit­i­cal: not on the issues he cares about the most, which are pol­i­tics, race and pow­er,” Hasen writes [36]. “See Shel­by Coun­ty, Cit­i­zens Unit­ed, and now ... Rucho.”

This GOP turn didn’t arise because the par­ty is ide­o­log­i­cal­ly opposed to democ­ra­cy in the way that, say, fas­cists and Islamists are. It’s that they care more about pow­er than they do about basic demo­c­ra­t­ic prin­ci­ples and are will­ing to run roughshod over the lat­ter if it helps them win the for­mer. This Repub­li­can atti­tude is more democ­ra­cy-indif­fer­ent than anti-demo­c­ra­t­ic, reflect­ing a par­ty so caught up in par­ti­san com­bat that it can’t rec­og­nize the author­i­tar­i­an road it’s trav­el­ing down.

This is part and par­cel of extreme polit­i­cal polar­iza­tion. In their book How Democ­ra­cies Die, Harvard’s Daniel Ziblatt and Steven Lev­it­sky argue that extreme polar­iza­tion pro­duces a sense among elect­ed offi­cials that the oth­er par­ty is a fun­da­men­tal threat to the country’s sur­vival, and that the con­se­quences of allow­ing them to wield pow­er will be cat­a­stroph­ic. This allows the par­ty lead­ers to jus­ti­fy tak­ing steps to under­mine democ­ra­cy in the name of sav­ing the nation, which, they argue, is what the cur­rent Repub­li­can Par­ty is doing through leg­is­la­tures and the courts. Indeed, that’s essen­tial­ly what Lewis, the North Car­oli­na state rep­re­sen­ta­tive, open­ly admit­ted.

This is much more fun­da­men­tal­ly threat­en­ing to Amer­i­can democ­ra­cy than the Trump pres­i­den­cy. Trump could do seri­ous dam­age to the sys­tem, maybe even induce a con­sti­tu­tion­al cri­sis, but he is, on his own, nei­ther com­pe­tent enough nor insti­tu­tion­al­ly pow­er­ful enough to out­right destroy Amer­i­can democ­ra­cy.

But the Repub­li­can Party’s democ­ra­cy-indif­fer­ent atti­tude pre­ced­ed the Trump pres­i­den­cy, and will like­ly sur­vive beyond it. With Trump in pow­er, the back­ing of a par­ti­san court major­i­ty, and an elec­toral sys­tem that intrin­si­cal­ly advan­tages the GOP, it’s pos­si­ble to imag­ine the par­ty sub­tly rewrit­ing the rules over time to make Amer­i­can democ­ra­cy less and less com­pet­i­tive. This may even seem like a nat­ur­al response, in the Repub­li­can mind, to the rise of a younger, more diverse, more pro­gres­sive elec­torate.

A kind of qui­et­ly unde­mo­c­ra­t­ic Amer­i­ca is not all that hard to imag­ine. In Paths Out of Dix­ie [37], Michi­gan polit­i­cal sci­en­tist Robert Mick­ey argues that a large swath of the Unit­ed States — the entire South — was an author­i­tar­i­an nation with­in a nation­al democ­ra­cy from the end of Recon­struc­tion right up until the 1970s.

Jim Crow wasn’t just racial­ly dis­crim­i­na­to­ry; it was anti-demo­c­ra­t­ic, rig­ging the sys­tem so racist whites couldn’t lose their grip on pow­er. The tran­si­tion to South­ern democ­ra­cy, Mick­ey argues, wasn’t easy and it wasn’t clean; the atti­tudes under­pin­ning South­ern author­i­tar­i­an­ism have not gone away.

...

“The Court’s ger­ry­man­der­ing deci­sion seems to lock-in an essen­tial­ly non-demo­c­ra­t­ic fea­ture of Amer­i­can pol­i­tics. Elect­ed rep­re­sen­ta­tives can rig the sys­tem to remain in pow­er indef­i­nite­ly and this can­not be chal­lenged,” writes [38] Har­vard polit­i­cal sci­en­tist Ryan Enos. “Com­bine this with the oth­er increas­ing­ly con­se­quen­tial non-demo­c­ra­t­ic fea­tures of the Amer­i­can sys­tem ... and the longterm sta­bil­i­ty of the sys­tem seems wor­ry­ing­ly com­pro­mised.”

———-

“The Supreme Court, ger­ry­man­der­ing, and the Repub­li­can turn against democ­ra­cy” by Zack Beauchamp; Vox.com; 06/27/2019 [25]

“The Court’s rul­ing in Rucho reveals that there’s a threat to Amer­i­can democ­ra­cy more sub­tle and yet greater than the Trump pres­i­den­cy: the Repub­li­can Party’s drift toward being insti­tu­tion­al­ly hos­tile to democ­ra­cy.

That’s right, the GOP’s mas­sive legal vic­to­ry in Rucho v. Com­mon Cause that removes fed­er­al courts from ques­tions about par­ti­san ger­ry­man­der­ing isn’t just a blank check for extreme par­ti­san ger­ry­man­der­ing. It’s also an implic­it bless­ing of the Repub­li­can Par­ty’s larg­er turn away from basic demo­c­ra­t­ic prin­ci­ples.

And now local author­i­ties get to draw their own par­ti­san dis­trict maps, so if one par­ty gains con­trol of a state that par­ty gets to legal­ly rig the sys­tem for its own ben­e­fit with­out wor­ry­ing about fed­er­al courts step­ping in. It’s a blank check to be as extreme as pos­si­ble:

...
The Supreme Court’s Thurs­day morn­ing rul­ing in Rucho v. Com­mon Cause amounts to a blank check for par­ti­san ger­ry­man­der­ing. Chief Jus­tice John Roberts’s opin­ion [13] holds that fed­er­al courts should not have the pow­er to declare par­tic­u­lar maps uncon­sti­tu­tion­al, as doing so would be “unprece­dent­ed expan­sion of judi­cial pow­er ... into one of the most intense­ly par­ti­san aspects of Amer­i­can polit­i­cal life.”

What this means, in prac­tice, is that local author­i­ties get to decide on the shape of House and state leg­isla­tive dis­tricts. Par­ties that con­trol state­hous­es will be freer to not only cement their own hold on pow­er but ensure that their par­ty sends more rep­re­sen­ta­tives to Wash­ing­ton as well.

...

In the 2018 elec­tion, Repub­li­cans won about 50 per­cent of the US House vote in North Car­oli­na. That trans­lat­ed into 70 per­cent of House seats due to heav­i­ly ger­ry­man­dered dis­tricts [29]. Wis­con­sin Democ­rats won every statewide elec­tion in 2018 but did not win majori­ties in either cham­ber of the state leg­is­la­ture. Once again, ger­ry­man­ders are to blame [30].

The Rucho rul­ing allows Repub­li­cans to con­tin­ue this cam­paign and even esca­late it, as they don’t have to wor­ry about out­ra­geous maps get­ting rolled back by fed­er­al courts.. “John Roberts ... gave the Repub­li­cans a green light to ger­ry­man­der to their hearts con­tent,” UC Irvine elec­tion law expert Rick Hasen writes at Slate [31].

The nation­al Repub­li­can cam­paign to cement their con­trol over state leg­is­la­tures and con­gres­sion­al del­e­ga­tions is not only hard­er to fight back but could very well get worse.

...

“The Court’s ger­ry­man­der­ing deci­sion seems to lock-in an essen­tial­ly non-demo­c­ra­t­ic fea­ture of Amer­i­can pol­i­tics. Elect­ed rep­re­sen­ta­tives can rig the sys­tem to remain in pow­er indef­i­nite­ly and this can­not be chal­lenged,” writes [38] Har­vard polit­i­cal sci­en­tist Ryan Enos. “Com­bine this with the oth­er increas­ing­ly con­se­quen­tial non-demo­c­ra­t­ic fea­tures of the Amer­i­can sys­tem ... and the longterm sta­bil­i­ty of the sys­tem seems wor­ry­ing­ly com­pro­mised.”
...

And, again, the Repub­li­can North Car­oli­na Rep who drew one of the maps that Rucho was rul­ing on did­n’t hide at all his moti­va­tions for draw­ing the map: he felt Repub­li­cans are bet­ter for the coun­try than Democ­rats and open­ly said he drew the maps to help fos­ter this:

...
While Repub­li­cans and Democ­rats both ger­ry­man­der, there is no doubt that Repub­li­cans do it more and more shame­less­ly. North Car­oli­na Rep. David Lewis, who helped draw one of the maps at issue in Rucho, was admirably hon­est about his motives in a 2016 state­house speech.

“I think elect­ing Repub­li­cans is bet­ter than elect­ing Democ­rats,” hhe explained [26]. “So I drew this map in a way to help fos­ter what I think is bet­ter for the coun­try.”
...

And Karl Rove was just as open about the Repub­li­cans’ plans for extreme ger­ry­man­der­ing in 2010. Project REDMAP was an open secret:

...
The Court’s rul­ing per­mits a sys­tem­at­ic attack on democ­ra­cy

Par­ti­san ger­ry­man­der­ing is, on its face, an obvi­ous­ly anti-demo­c­ra­t­ic prac­tice. State leg­is­la­tors pack large num­bers of vot­ers from the oppos­ing par­ty into a hand­ful of leg­isla­tive dis­tricts, thus ensur­ing their vot­ers dom­i­nate the bulk of dis­tricts and hand them a major­i­ty. It gives their sup­port­ers’ votes more weight, a direct vio­la­tion of the core demo­c­ra­t­ic prin­ci­ples relat­ing to equal cit­i­zen­ship and rep­re­sen­ta­tion.

His­tor­i­cal­ly, both par­ties have engaged in par­ti­san ger­ry­man­der­ing: Rucho itself con­cerned both the Repub­li­can map in North Car­oli­na and a Demo­c­ra­t­ic map in Mary­land. But the GOP has embraced the fash­ion in a far more sys­tem­at­ic and trou­bling fash­ion.

In 2010, Repub­li­can strate­gist Karl Rove wrote an op-ed in the Wall Street Jour­nal advo­cat­ing a sig­nif­i­cant Repub­li­can push [20] to ger­ry­man­der leg­isla­tive dis­tricts after that year’s midterm elec­tions. Rove’s idea man­i­fest­ed as Project REDMAP, a dark-mon­ey cam­paign to sup­port Repub­li­can can­di­dates for state leg­is­la­ture and then help them redraw House dis­tricts after the 2010 cen­sus [28].

We first saw the results of this process in 2012, when Repub­li­cans held the House despite more Amer­i­cans vot­ing for Demo­c­ra­t­ic House can­di­dates than Repub­li­can ones. The con­se­quences per­sist, mak­ing it sig­nif­i­cant­ly hard­er for Democ­rats to win office in places around the coun­try.
...

Also keep in mind that ger­ry­man­der­ing is exact­ly the kind of issue that almost requires a fed­er­al rul­ing to han­dle it because nei­ther par­ty has an incen­tive to uni­lat­er­al­ly ‘dis­arm’ and not ger­ry­man­der if the oth­er par­ty is doing it. This is a hor­ri­ble ques­tions send to the states for that rea­son alone, but that’s exact­ly what John Roberts just did because while Roberts might tech­ni­cal­ly be a ‘swing’ vote on the court now, there’s no swing­ing when it comes to ques­tions of bil­lion­aire influ­ence over the polit­i­cal process. It was the Roberts Court that brought us Cit­i­zens Unit­ed and unlim­it­ed anony­mous polit­i­cal spend­ing, after all:

...
The GOP dom­i­nance of the Supreme Court has played an impor­tant role in this over­all democ­ra­cy-threat­en­ing drift. Under Chief Jus­tice Roberts, the Court has struck down Vot­ing Rights Act pro­vi­sions that attempt­ed to cur­tail ger­ry­man­ders along racial lines in the Shel­by Coun­ty case and removed restric­tions on dark-mon­ey con­tri­bu­tions in the infa­mous Cit­i­zens Unit­ed rul­ing. Under Roberts, the Court is sys­tem­at­i­cal­ly remov­ing judi­cial con­straints on the nation­wide GOP’s cor­ro­sions of demo­c­ra­t­ic insti­tu­tions.

“All of this talk about Roberts being the swing vote, or wor­ried about appear­ances of being polit­i­cal: not on the issues he cares about the most, which are pol­i­tics, race and pow­er,” Hasen writes [36]. “See Shel­by Coun­ty, Cit­i­zens Unit­ed, and now ... Rucho.”
...

Wel­come to the age of Roberts as the Supreme Court’s swing vote. When it comes to the issues Roberts cares about most — ques­tions of race and pow­er and pleas­ing bil­lion­aires — we know how the Roberts Court is going to swing.

Pro­tect­ing Ger­ry­man­der­ing From State Courts: A Civic Project Brought to You By the Koch Broth­ers and ALEC

And in case it was­n’t clear that extreme par­ti­san redis­trict­ing is a active goal of the Koch net­work of mega donors, here’s an arti­cle from last year describ­ing how the Koch-backed The Amer­i­can Leg­isla­tive Exchange Coun­cil (ALEC) has been push­ing “mod­el leg­is­la­tion” on state leg­is­la­tures that would pre­vent state supreme courts from rul­ing on ger­ry­man­der­ing mat­ters. They are lit­er­al­ly try­ing to remove all checks and bal­ances stand­ing in the way of extreme par­ti­san ger­ry­man­der­ing [39]:

Sludge

ALEC Launch­es Effort to Pro­tect Ger­ry­man­der­ing from Judges

Efforts to lim­it the courts’ role in cre­at­ing dis­trict maps come as 2020 redis­trict­ing looms.

by Jose­fa Velasquez
Edit­ed by Alex Kotch and Don­ald Shaw

Aug 20, 2018 2:48PM EDT

A con­ser­v­a­tive, indus­try-backed orga­ni­za­tion is push­ing a pro­pos­al to ensure that issues involv­ing redis­trict­ing are decid­ed by state leg­is­la­tures rather than by the judi­cia­ry.

The Amer­i­can Leg­isla­tive Exchange Coun­cil (ALEC), a 501(c)(3) non­prof­it that con­nects law­mak­ers and pri­vate-sec­tor orga­ni­za­tions to craft mod­el leg­is­la­tion, intro­duced a draft res­o­lu­tion [40] ear­li­er this month “reaf­firm­ing the right of state leg­is­la­tures to deter­mine elec­toral dis­tricts.”

The draft res­o­lu­tion argues that inter­ven­tion by state supreme courts to redis­trict con­gres­sion­al maps “vio­lates the fun­da­men­tal rights” of res­i­dents of that state who have elect­ed law­mak­ers to make such a deci­sion.

“The courts should refrain from judi­cial over­reach in the form of impos­ing redis­trict­ing schemes which have the effect of sub­vert­ing the repub­li­can process intend­ed by America’s Found­ing Fathers,” an ALEC sum­ma­ry of the draft res­o­lu­tion says.

Efforts to reach rep­re­sen­ta­tives for ALEC to dis­cuss the draft pro­pos­al were unsuc­cess­ful. The non-prof­it, which until recent­ly focused on state-lev­el issues, has increas­ing­ly delved into nation­al issues as for­mer ALEC mem­bers, includ­ing Vice Pres­i­dent Mike Pence, take high-rank­ing posi­tions in the Trump admin­is­tra­tion and Con­gress.

The draft res­o­lu­tion by ALEC is part of an “increas­ing num­ber of efforts to under­mine the role of the judi­cia­ry,” Michael Li, the senior redis­trict­ing coun­sel at the Bren­nan Cen­ter for Jus­tice, told Sludge.

The Bren­nan Cen­ter esti­mates that there are at least 51 bills in 16 states [41] that seek to dimin­ish the inde­pen­dence of the judi­cial branch either by chang­ing how judges are select­ed, scal­ing back resources avail­able to the judi­cia­ry, imple­ment­ing dis­ci­pli­nary action or restrict­ing the courts’ pow­er to find leg­isla­tive acts uncon­sti­tu­tion­al.

Unlike the courts, leg­is­la­tures can be lob­bied by indus­try offi­cials and there­fore influ­enced, which is why redis­trict­ing deci­sions should be left to the courts, Li argued.

“It’s impor­tant to have a check and bal­ance in the process because state leg­is­la­tures often are prone to be cap­tured by spe­cial inter­ests, espe­cial­ly when it comes to some­thing like redis­trict­ing that your aver­age mem­ber doesn’t under­stand and maybe nev­er has done before—since it takes place only once every 10 years,” Li said. “In many places, it is lead­er­ship who, along with con­sul­tants and operatives—often from out of state—make the real deci­sions. And their goal is invari­ably to max­i­mize pow­er above all else.”

While the par­ti­san redis­trict­ing bat­tle has been most­ly waged in fed­er­al courts, state con­sti­tu­tions and courts have been large­ly ignored, offer­ing groups like ALEC and those in favor of par­ti­san redis­trict­ing the oppor­tu­ni­ty to stack courts and push favor­able poli­cies, Li said in an inter­view.

The draft res­o­lu­tion by ALEC—which has been behind major laws like Stand Your Ground—also comes as sev­er­al states con­sid­er inde­pen­dent redis­trict­ing mea­sures on their bal­lots and courts around the coun­try con­sid­er cas­es involv­ing redis­trict­ing issues.

In North Car­oli­na, vot­ers will decide in Novem­ber whether to amend the state con­sti­tu­tion to give the Leg­is­la­ture more con­trol over appoint­ing judges. Cur­rent­ly, it’s up to the gov­er­nor to fill judi­cial vacan­cies, in which case appointees serve until the next judi­cial elec­tion. But the con­sti­tu­tion­al amend­ment pushed by the Repub­li­can-con­trolled Leg­is­la­ture seeks to strip that pow­er from the exec­u­tive branch and put in place a nine-mem­ber com­mis­sion appoint­ed by the Leg­is­la­ture, the gov­er­nor and the Supreme Court chief jus­tice to select poten­tial court appointees.

North Car­oli­na Gov. Roy Coop­er, a Demo­c­rat, has been in a con­stant state of war with the Gen­er­al Assem­bly, where Repub­li­cans have a super­ma­jor­i­ty in each cham­ber, allow­ing the par­ty to eas­i­ly pass leg­is­la­tion and over­ride the governor’s vetoes.

In Penn­syl­va­nia, a dozen Repub­li­can law­mak­ers intro­duced leg­is­la­tion in March to impeach four Demo­c­ra­t­ic state Supreme Court jus­tices [42] who ruled that the state’s con­gres­sion­al maps were uncon­sti­tu­tion­al­ly ger­ry­man­dered.

While the leg­is­la­tion in Penn­syl­va­nia stalled, law­mak­ers in neigh­bor­ing West Vir­ginia began the process of impeach­ing the state Supreme Court [43] last week after alle­ga­tions of lav­ish spend­ing. But good gov­ern­ment groups and Democ­rats say the lav­ish spend­ing is the cov­er sto­ry [44] of a more nefar­i­ous plot by Repub­li­cans to take con­trol of the court.

Col­orado, Michi­gan [45], Mis­souri, Ohio and Utah all have bal­lot mea­sures appear­ing before vot­ers in Novem­ber per­tain­ing to redis­trict­ing ini­tia­tives. Pres­i­dent Don­ald Trump won all of those states, with the excep­tion of Col­orado, in 2016.

...

———-

“ALEC Launch­es Effort to Pro­tect Ger­ry­man­der­ing from Judges” by Jose­fa Velasquez; Sludge; 08/20/2018 [39]

“The Amer­i­can Leg­isla­tive Exchange Coun­cil (ALEC), a 501(c)(3) non­prof­it that con­nects law­mak­ers and pri­vate-sec­tor orga­ni­za­tions to craft mod­el leg­is­la­tion, intro­duced a draft res­o­lu­tion [40] ear­li­er this month “reaf­firm­ing the right of state leg­is­la­tures to deter­mine elec­toral dis­tricts.”

It sounds innocu­ous, does­n’t it? A draft res­o­lu­tion “reaf­firm­ing the right of state leg­is­la­tures to deter­mine elec­toral dis­tricts.” And yet this draft res­o­lu­tion argues that inter­ven­tion of state supreme courts in draw­ing those dis­tricts “vio­lates the fun­da­men­tal rights” of res­i­dents of that state who have elect­ed law­mak­ers to make such a deci­sion. Think about that for a sec­ond: the courts rul­ing on leg­isla­tive actions, which is one of the core func­tions of the courts, is a vio­la­tion of the fun­daman­tal rights of vot­ers because they elect­ed law­mak­ers to make such a deci­sion. It’s basi­cal­ly a res­o­lu­tion against checks and bal­ances:

...
The draft res­o­lu­tion argues that inter­ven­tion by state supreme courts to redis­trict con­gres­sion­al maps “vio­lates the fun­da­men­tal rights” of res­i­dents of that state who have elect­ed law­mak­ers to make such a deci­sion.

“The courts should refrain from judi­cial over­reach in the form of impos­ing redis­trict­ing schemes which have the effect of sub­vert­ing the repub­li­can process intend­ed by America’s Found­ing Fathers,” an ALEC sum­ma­ry of the draft res­o­lu­tion says.
...

And note one of the key dis­tinc­tions between state courts and state leg­is­la­tures: it’s a lot eas­i­er for pri­vate inter­ests like the Kochs to buy off state leg­is­la­tors than judges:

...
The draft res­o­lu­tion by ALEC is part of an “increas­ing num­ber of efforts to under­mine the role of the judi­cia­ry,” Michael Li, the senior redis­trict­ing coun­sel at the Bren­nan Cen­ter for Jus­tice, told Sludge.

The Bren­nan Cen­ter esti­mates that there are at least 51 bills in 16 states [41] that seek to dimin­ish the inde­pen­dence of the judi­cial branch either by chang­ing how judges are select­ed, scal­ing back resources avail­able to the judi­cia­ry, imple­ment­ing dis­ci­pli­nary action or restrict­ing the courts’ pow­er to find leg­isla­tive acts uncon­sti­tu­tion­al.

Unlike the courts, leg­is­la­tures can be lob­bied by indus­try offi­cials and there­fore influ­enced, which is why redis­trict­ing deci­sions should be left to the courts, Li argued.

“It’s impor­tant to have a check and bal­ance in the process because state leg­is­la­tures often are prone to be cap­tured by spe­cial inter­ests, espe­cial­ly when it comes to some­thing like redis­trict­ing that your aver­age mem­ber doesn’t under­stand and maybe nev­er has done before—since it takes place only once every 10 years,” Li said. “In many places, it is lead­er­ship who, along with con­sul­tants and operatives—often from out of state—make the real deci­sions. And their goal is invari­ably to max­i­mize pow­er above all else.”
...

So as we can see, a cen­tral aspect of the attack on bil­lion­aire democ­ra­cy is shift­ing pow­er to the states, remov­ing state courts from the over­sight, and then buy­ing off state leg­is­la­tures and gov­er­nors.

Ger­ry­man­der­ing the Sen­ate By Repeal­ing the 17th Amend­ment and Tak­ing the Right to Vote for Sen­a­tors Away: Anoth­er Project Brought to You By ALEC and the Kochs

And as the next arti­cle describes, there’s anoth­er major polit­i­cal pow­er the Kochs and ALEC would like to see hand­ed over exclu­sive­ly to state leg­is­la­tures and gov­er­nors: select­ing US Sen­a­tors. Like it used to be. The plan is sim­ple. Repeal the 17th Amend­ment and make the elec­tion of Sen­a­tors exclu­sive­ly up to state leg­is­la­tures. It’s the kind of plan that would undoubt­ed­ly be pop­u­lar with Repub­li­can par­ty oper­a­tives and mega donors because, based on the cur­rent dom­i­na­tion by Repub­li­cans of state gov­ern­ments, the GOP would pick up 17 Sen­ate seats today and basi­cal­ly have a per­ma­nent Sen­ate Major­i­ty.

So how are they plan­ning on sell­ing such an unpop­u­lar pro­pos­al to the rest of the pub­lic? Appar­ent­ly by fram­ing it as a “states’ rights” argu­ment. Giv­ing peo­ple the right to direct­ly vote for Sen­a­tors erod­ed states’ rights accord­ing to ALEC. In addi­tion, they argue the cost of Sen­ate races has spi­raled out of con­trol. Keep mind ALEC and the Koch broth­ers were major back­ers behind Cit­i­zens Unit­ed which has con­tributed to an explo­sion in the cost of Sen­ate races. But that’s the kind of bad faith argu­ments we should expect from the peo­ple argu­ing that direct elec­tion of Sen­a­tors is a vio­la­tion of states rights [46]:

BillMoyers.com

ALEC and Koch Broth­ers Want to Ger­ry­man­der the Sen­ate

The right wing is look­ing to accom­plish through ger­ry­man­der­ing what it can’t do at the bal­lot box.

By Mary Bot­tari and David Armi­ak | July 18, 2017

This post orig­i­nal­ly appeared at Exposed by CMD [47].

Now that GOP state leg­is­la­tors have con­trol over 32 state leg­is­la­tures (both cham­bers), thanks in large part to par­ti­san ger­ry­man­der­ing, some extrem­ists are prepar­ing to use their clout to ger­ry­man­der the US Sen­ate.

This week in Den­ver, July 19–21, the Amer­i­can Leg­isla­tive Exchange Coun­cil (ALEC) [48] will wel­come Repub­li­can state leg­is­la­tors and its cor­po­rate fun­ders, includ­ing Koch Indus­tries, Exxon­Mo­bil, K12 Inc., Peabody Ener­gy and PhRMA, to vote on cor­po­rate leg­isla­tive pri­or­i­ties and cre­ate cook­ie cut­ter “mod­el” bills in task force meet­ings that are still closed to the press.

ALEC will wel­come US Edu­ca­tion Sec­re­tary Bet­sy DeVos, Labor Sec­re­tary Alexan­der Acos­ta, Sec­re­tary of the Inte­ri­or Ryan Zinke [49], Newt Gin­grich and oth­er Trump loy­al­ists to the meet­ing.

On the agen­da for debate and dis­cus­sion? A mod­el bill to repeal the 17th Amend­ment, which estab­lished the pop­u­lar elec­tion of Unit­ed States sen­a­tors in 1913.

Pre­vi­ous­ly, US sen­a­tors were select­ed by state leg­is­la­tures and polit­i­cal par­ty boss­es behold­en to pow­er­ful indus­tries. The cor­rup­tion scan­dals erupt­ing from the wheel­ing and deal­ing fueled some of the great muck­rak­ing inves­tiga­tive jour­nal­ism of the ear­ly 20th Cen­tu­ry. In 1912, pro­gres­sive Repub­li­can US Sen. Robert “Fight­ing Bob” La Fol­lette [50] cam­paigned for the pop­u­lar elec­tion of US sen­a­tors as a means of crack­ing down on polit­i­cal cor­rup­tion and cor­po­rate con­trol of the democ­ra­cy. Reform­ers intro­duced direct pri­ma­ry elec­tions, bal­lot ini­tia­tives and recall votes, in the same time peri­od.

Now right-wing extrem­ists want to roll back the clock to enable Repub­li­can state hous­es and Repub­li­can gov­er­nors to hijack at least 10 US Sen­ate seats held by Democ­rats in Repub­li­can tri­fec­ta states, and force an ever more extreme agen­da through Con­gress.

ALEC’s Mod­el Bill to Repeal the 17th Amend­ment

The “Draft Res­o­lu­tion Rec­om­mend­ing Con­sti­tu­tion­al Amend­ment Restor­ing Elec­tion Of US Sen­a­tors To The Leg­is­la­tures Of The Sov­er­eign States [51]” is sched­uled to be debat­ed by ALEC’s Fed­er­al­ism and Inter­na­tion­al Rela­tions Task Force [52] in Den­ver.

The res­o­lu­tion reads in part:

Sec­tion 1. The 17th arti­cle of amend­ment to the Con­sti­tu­tion of the Unit­ed States is here­by repealed.

Sec­tion 2. Sen­a­tors shall be elect­ed exclu­sive­ly by the state leg­is­la­ture, upon a major­i­ty vote of leg­is­la­tors present and vot­ing in a joint ses­sion. If a vacan­cy shall exist for more than 180 days, then the gov­er­nor shall appoint the sen­a­tor to serve the remain­der of the vacant term. This pro­ce­dure may not be mod­i­fied by state ini­tia­tive or ref­er­en­dum.

One only needs to exam­ine the elec­toral map to under­stand why ALEC is push­ing for a repeal of the 17th Amend­ment now.

With the major­i­ty of states under GOP con­trol, Repub­li­cans could snatch some 17 US Sen­ate seats from Democ­rats if the state leg­is­la­tures are giv­en the right to pick Sen­a­tors.

ALEC politi­cians know that their extreme agen­da of rolling back renew­ables, bust­ing unions and pri­va­tiz­ing schools is not pop­u­lar with the Amer­i­can pub­lic and doesn’t fly at the bal­lot box. No state, for instance, has approved school vouch­ers via the bal­lot box, edu­ca­tion expert Diane Rav­itch tell us.

It is not easy to pass a con­sti­tu­tion­al amend­ment or repeal one. Only Utah has passed a res­o­lu­tion [53] urg­ing the repeal of the 17th Amend­ment. But a repeal would give the GOP a super­ma­jor­i­ty in the US Sen­ate and a great­ly enhanced abil­i­ty to advance extrem­ist poli­cies.

Ratio­nales Don’t Hold Water

This bill should be seen as the lat­est in a long line of ALEC bills to rig the sys­tem and rein in pop­u­lar democ­ra­cy. ALEC had a mod­el res­o­lu­tion sup­port­ing the Elec­toral Col­lege [54]; ALEC want­ed to lim­it bal­lot ini­tia­tives and ref­er­en­dums [55] put on the bal­lot by vot­ers; ALEC stood behind [56] the US Supreme Court’s Citizen’s Unit­ed deci­sion, and ALEC want­ed to stomp on tra­di­tion­al­ly Demo­c­ra­t­ic vot­ers with vot­er-ID require­ments [57] and more.

...

ALEC has debat­ed the repeal of the 17th Amend­ment before at the 2013 States and Nation Pol­i­cy Sum­mit [58]. In the “Equal State’s Enfran­chise­ment Act (ESEA),” ALEC required state leg­is­la­tures to choose a can­di­date for US sen­a­tor that will be placed on the bal­lot along­side oth­er can­di­dates for the gen­er­al pub­lic to vote on. The Act did not call for a repeal of the 17th Amend­ment, but gave a leg up to a favored can­di­date. That draft did not become a mod­el bill.

This lat­est iter­a­tion is a vir­tu­al copy of a bill [59] on the site of a group called the Equal Jus­tice Coali­tion [60], a small 501©3 non­prof­it based out of Long Beach, Cal­i­for­nia, run by a retired real estate devel­op­er: J. Jay Fein­berg. IRS fil­ings for the group show that it was found­ed in 2015 [61] and did not report rev­enue until 2016 [62], when it stat­ed receiv­ing $46,000.

Fein­berg held a work­shop [63] on EJC’s repeal of the 17th Amend­ment that includ­ed John C. East­man, found­ing direc­tor of the Clare­mont Insti­tute [64]‘s Cen­ter for Con­sti­tu­tion­al Jurispru­dence and Trent Eng­land, exec­u­tive vice pres­i­dent of the Okla­homa Coun­cil of Pub­lic Affairs [65] at ALEC’s States and Nation Pol­i­cy Meet­ing in Wash­ing­ton, DC in Novem­ber 2016. Ear­li­er, the trio held a “telepan­el [66]” on the sub­ject host­ed on the Clare­mont Institute’s site. (View the slideshow [67].)

In the Clare­mont pan­el and the ALEC work­shop, Fein­berg, East­man and Eng­land argue that the pow­er and sov­er­eign­ty of the states has been erod­ed by direct elec­tion of the Sen­ate and that the costs of US Sen­ate elec­tions have spun out of con­trol.

Although the trio appears to quote a Map­Light analy­sis [68] stat­ing that it now costs $10.5 mil­lion to win a US Sen­ate seat on aver­age, they fail to note that Map­Light Pres­i­dent Daniel New­man attrib­ut­es the high cost [69] to the 2010 US Supreme Court deci­sion Cit­i­zens Unit­ed v. FEC, which opened the door to an unlim­it­ed flow of cor­po­rate mon­ey into cam­paigns and elec­tions.

Per­haps the Equal Jus­tice Coali­tion should be pro­mot­ing a con­sti­tu­tion­al amend­ment [70] to roll back Cit­i­zens Unit­ed instead.

———-

“ALEC and Koch Broth­ers Want to Ger­ry­man­der the Sen­ate” By Mary Bot­tari and David Armi­ak; BillMoyers.com; 07/18/2017 [46]

“With the major­i­ty of states under GOP con­trol, Repub­li­cans could snatch some 17 US Sen­ate seats from Democ­rats if the state leg­is­la­tures are giv­en the right to pick Sen­a­tors.”

A 17 Sen­ate Seat pick­up for the Repub­li­cans. That’s what repeal­ing the 17th amend­ment would yield for the GOP now, and that’s before all the extreme ger­ry­man­der­ing makes state leg­is­la­tures even more dom­i­nat­ed by the Repub­li­cans. So it’s not hard to see why elect­ed Repub­li­cans would sup­port this. But what about every­one else? Well, that’s where the “states’ rights” and “races are too expen­sive” argu­ments are pre­sum­ably sup­posed to win peo­ple over:

...
ALEC has debat­ed the repeal of the 17th Amend­ment before at the 2013 States and Nation Pol­i­cy Sum­mit [58]. In the “Equal State’s Enfran­chise­ment Act (ESEA),” ALEC required state leg­is­la­tures to choose a can­di­date for US sen­a­tor that will be placed on the bal­lot along­side oth­er can­di­dates for the gen­er­al pub­lic to vote on. The Act did not call for a repeal of the 17th Amend­ment, but gave a leg up to a favored can­di­date. That draft did not become a mod­el bill.

This lat­est iter­a­tion is a vir­tu­al copy of a bill [59] on the site of a group called the Equal Jus­tice Coali­tion [60], a small 501©3 non­prof­it based out of Long Beach, Cal­i­for­nia, run by a retired real estate devel­op­er: J. Jay Fein­berg. IRS fil­ings for the group show that it was found­ed in 2015 [61] and did not report rev­enue until 2016 [62], when it stat­ed receiv­ing $46,000.

Fein­berg held a work­shop [63] on EJC’s repeal of the 17th Amend­ment that includ­ed John C. East­man, found­ing direc­tor of the Clare­mont Insti­tute [64]‘s Cen­ter for Con­sti­tu­tion­al Jurispru­dence and Trent Eng­land, exec­u­tive vice pres­i­dent of the Okla­homa Coun­cil of Pub­lic Affairs [65] at ALEC’s States and Nation Pol­i­cy Meet­ing in Wash­ing­ton, DC in Novem­ber 2016. Ear­li­er, the trio held a “telepan­el [66]” on the sub­ject host­ed on the Clare­mont Institute’s site. (View the slideshow [67].)

In the Clare­mont pan­el and the ALEC work­shop, Fein­berg, East­man and Eng­land argue that the pow­er and sov­er­eign­ty of the states has been erod­ed by direct elec­tion of the Sen­ate and that the costs of US Sen­ate elec­tions have spun out of con­trol.
...

Still, it’s hard to see vot­ers, even Repub­li­can vot­ers, get­ting behind this plan. Peo­ple aren’t gen­er­al­ly in favor of not being able to vote for their rep­re­sen­ta­tion.

The Big­ger Agen­da: The Kochs/ALEC Con­sti­tu­tion­al Over­haul, which is Going to Require A LOT of State Leg­is­la­tures Under Koch Con­trol

But while repeal­ing the 17th Amend­ment might seem like some sort of out­landish goal that even bil­lion­aires can’t buy for them­selves, when you con­sid­er the broad­er con­text of the Koch/ALEC agen­da the repeal of the 17th Amend­ment is a rel­a­tive­ly minor item. Because they want to repeal a lot more than just the 17th Amend­ment and they’d like to some some Amend­ments too. And they are shock­ing­ly close to achiev­ing this. That’s because trig­ger­ing Arti­cle V of the Con­sti­tu­tion, and ini­ti­at­ing a con­sti­tu­tion­al con­ven­tion where amend­ments can be added and repealed, has been a right-wing goal for decades now. It takes 2/3rd of state leg­is­la­tures, 34 out of 50, to pass a res­o­lu­tion for an Arti­cle V con­ven­tion to trig­ger it and right now 28 states have already done so for a bal­anced bud­get amend­ment. Just six more states are need­ed. Maybe. It’s ambigu­ous. An Arti­cle V con­ven­tion has nev­er been trig­gered before and the exact rules are unclear. Dif­fer­ent states have trig­gered dif­fer­ent kinds of res­o­lu­tions and some of them have rescind­ed those res­o­lu­tions. Some state res­o­lu­tions call for a con­sti­tu­tion­al con­ven­tion intend­ed to deal with spe­cif­ic amend­ment pro­pos­als while oth­er states passed much vaguer res­o­lu­tions and that’s why there are seri­ous­ly con­cerns that even a con­ven­tion called under the aus­pices of pass­ing a spe­cif­ic set of amend­ments could turn into a ‘run­away’ con­ven­tion where any­thing with enough votes can pass. And if you count all the states that have passed a res­o­lu­tion at all for any rea­son it’s already passed 34 states. It then takes 3/4 of states to approve of the pro­posed changes after the con­ven­tion. So if a run­away con­ven­tion takes place while the Repub­li­cans dom­i­nate 3/4 state leg­is­la­tures there’s a seri­ous pos­si­bil­i­ty of a run­away con­ven­tion that insti­tutes a near­ly irre­versible far right over­haul of the US con­sti­tu­tion. An over­haul being coor­di­nat­ed by and for right-wing bil­lion­aires.

The arti­cle also notes that the Supreme Court may need to rule on the unan­swered ques­tions. Ques­tions like do the states have to call for a con­ven­tion on the same top­ic? Must they pass res­o­lu­tions with sim­i­lar or iden­ti­cal word­ing? So there’s a good chance the Roberts Court will be rul­ing on these ques­tions. Love­ly.

Repeal­ing the 17th Amend­ment is one the spe­cif­ic amend­ments most fre­quent­ly pro­posed by the back­ers of an Arti­cle V con­ven­tion, along with a fed­er­al bal­anced bud­get amend­ment and term lim­its. Keep in mind that while there are plus­es and minus­es to term lim­its, a bal­anced bud­get amend­ment is a mind-numb­ing­ly bad idea. It’s con­sti­tu­tion­al­ly impos­ing a recipe for eco­nom­ic dis­as­ter by man­dat­ing cuts in fed­er­al spend­ing as the econ­o­my gets worse. It’s also a long-stand­ing far right goal and a cen­tral goal of the right-wing bil­lion­aires because a bal­anced bud­get amend­ment would almost cer­tain­ly like­ly result in a col­lapse of almost all fed­er­al gov­ern­ment spend­ing. Repeal­ing the 16th Amend­ment, which allowed for a fed­er­al income tax, is anoth­er bil­lion­aire goal. And you can be sure that the push for repeal­ing the 17th Amend­ment is going to include a par­al­lel push for repeal­ing the 16th Amend­ment if a con­sti­tu­tion­al con­ven­tion hap­pens.

So yes, repeal­ing the 17th Amend­ment is an out­landish goal. But not as out­landish as a ‘run­away’ con­sti­tu­tion­al con­ven­tion that insti­tutes a far right over­haul of the US con­sti­tu­tion. A ‘run­away’ con­sti­tu­tion con­ven­tion that is out­landish­ly fea­si­ble today thanks to the GOP’s dom­i­na­tion of state leg­is­la­tures [71]:

Asso­ci­at­ed Press

Con­ser­v­a­tives want to bypass usu­al way to amend Con­sti­tu­tion

By MATT SEDENSKY
Novem­ber 3, 2018

NEW YORK (AP) — What­ev­er suc­cess Repub­li­cans have amassed in tak­ing con­trol of all three branch­es of U.S. gov­ern­ment, and what­ev­er fate awaits them as midterm elec­tions near, some on the right are work­ing to cement change by amend­ing the Con­sti­tu­tion. And to the mount­ing alarm of oth­ers on all parts of the spec­trum, they want to bypass the usu­al process.

They’re push­ing for an unprece­dent­ed Con­sti­tu­tion­al con­ven­tion of the states. While oppo­nents are afraid of what such a con­ven­tion would do, sup­port­ers say it is the only way to deal with the fed­er­al government’s over­reach and inep­ti­tude.

“They lit­er­al­ly see this as the sur­vival of the nation,” said Kar­la Jones, direc­tor of the fed­er­al­ism task force at the con­ser­v­a­tive Amer­i­can Leg­isla­tive Exchange Coun­cil, which rep­re­sents state law­mak­ers and offers guid­ance and mod­el leg­is­la­tion for states to call a con­ven­tion under the Constitution’s Arti­cle V.

Among the most fre­quent­ly cit­ed changes being sought: amend­ments enforc­ing a bal­anced fed­er­al bud­get, estab­lish­ing term lim­its for mem­bers of Con­gress, and repeal­ing the 17th Amend­ment, which put the pow­er of elect­ing the Sen­ate in the hands of the pub­lic instead of state leg­is­la­tures.

For the past 229 years, con­sti­tu­tion­al amend­ments have orig­i­nat­ed in Con­gress, where they need the sup­port of two-thirds of both hous­es, and then the approval of at least three-quar­ters of the states.

But under a nev­er-used sec­ond prong of Arti­cle V, amend­ments can orig­i­nate in the states. Two-thirds of states — cur­rent­ly, 34 — must call for a con­ven­tion at which three-fourths of states approve of a change.

The par­tic­u­lars of such a con­ven­tion, though, are not laid out. Do the states have to call for a con­ven­tion on the same top­ic? Must they pass res­o­lu­tions with sim­i­lar or iden­ti­cal word­ing? The U.S. Supreme Court may have to decide whether the thresh­old of states has been reached and, ulti­mate­ly, the para­me­ters of a con­ven­tion and the rules del­e­gates would be gov­erned by.

A bill intro­duced in the U.S. House last year would direct the Nation­al Archives to com­pile all appli­ca­tions for an Arti­cle V con­ven­tion.

Some believe enough states have already passed Arti­cle V res­o­lu­tions, point­ing to votes over the years across the coun­try on a vari­ety of poten­tial amend­ment top­ics. Oth­ers con­tend the high­est pos­si­ble cur­rent count of states is 28 — the num­ber of states with exist­ing res­o­lu­tions on the most com­mon con­ven­tion top­ic, a bal­anced bud­get amend­ment. Oth­ers point to low­er total counts based on states that have passed near-iden­ti­cal res­o­lu­tions.

Regard­less, pro­po­nents of a con­ven­tion believe they have momen­tum on their side more than any oth­er time in Amer­i­can his­to­ry.

“That sec­ond clause of Arti­cle V was specif­i­cal­ly intend­ed for a time like this, when the fed­er­al gov­ern­ment gets out of con­trol and when the Con­gress won’t deliv­er to the peo­ple what they want,” said Mark Meck­ler, a tea par­ty leader who now heads Cit­i­zens for Self-Gov­er­nance, which runs the Con­ven­tion of States Project call­ing for an Arti­cle V con­ven­tion. Leg­is­la­tion pro­mot­ed by the group calls for a con­ven­tion focused on the fed­er­al government’s bud­get and pow­er, and term lim­its for office hold­ers. It has passed 12 states and one leg­isla­tive cham­ber in anoth­er 10.

The Con­ven­tion of States Project says 18 oth­er states are con­sid­er­ing the mea­sure.

Meck­ler, like oth­er back­ers of a con­ven­tion, believes there’s no rea­son why it can’t be lim­it­ed in scope. Oth­ers aren’t so sure. Four states that pre­vi­ous­ly had passed res­o­lu­tions call­ing for a con­ven­tion have rescind­ed them in recent years, often cit­ing wari­ness over a “run­away” con­ven­tion.

Karen Hobert Fly­nn, pres­i­dent of Com­mon Cause, has sound­ed alarms on a pos­si­ble con­ven­tion and por­trays the coast-to-coast emer­gence of res­o­lu­tions on the issue “a game of Whack-a-Mole.”

“This is the most dan­ger­ous idea in Amer­i­can pol­i­tics that most peo­ple know noth­ing about,” she said.

Nan­cy MacLean, a Duke Uni­ver­si­ty his­to­ri­an and author of “Democ­ra­cy in Chains: The Deep His­to­ry of the Rad­i­cal Right’s Stealth Plan for Amer­i­ca,” views the prospect of an Arti­cle V con­ven­tion with fear — the next chap­ter of decades of work on the far right trans­form­ing the fed­er­al judi­cia­ry and sup­port­ing cas­es that go on to make broad con­sti­tu­tion­al points, all while sup­press­ing votes and ger­ry­man­der­ing dis­tricts.

“The ulti­mate project,” MacLean said of con­ser­v­a­tives, “is to trans­form our pri­ma­ry rules book, which is the Con­sti­tu­tion.”

There are pro­po­nents of an Arti­cle V con­ven­tion on the left who see it as a pos­si­ble way to over­turn the Cit­i­zens Unit­ed cam­paign finance deci­sion, pass the Equal Rights Amend­ment and oth­er­wise address what they see as a stacked deck that has helped the GOP get an unfair advan­tage. But with more red states than blue ones, it seems an unlike­ly path to abol­ish­ing the Elec­toral Col­lege, reengi­neer­ing appor­tion­ment of the Sen­ate or oth­er­wise devis­ing a democ­ra­cy they believe is more reflec­tive of the Amer­i­can public’s views.

In that view, it’s baf­fling to some observers that con­ser­v­a­tives are the ones push­ing a con­ven­tion.

“I don’t know what exact­ly they’re unhap­py with. When I look at the cur­rent pol­i­tics, it seems to me things for them are going real­ly well,” said con­sti­tu­tion­al law pro­fes­sor Michael Klar­man of Har­vard Uni­ver­si­ty. “They’re already get­ting what they want from the Supreme Court. Ger­ry­man­der­ing is fine. Unlim­it­ed mon­ey in pol­i­tics is fine. The Elec­toral Col­lege is OK. Vot­er purges, pho­to ID laws are OK. So I don’t know exact­ly what they’re look­ing for.”

Meck­ler acknowl­edges the loud­est voic­es call­ing for a con­ven­tion are con­ser­v­a­tive. (“You look at our web­site, it’s all right-wingers,” he says.) But he sees that as a reflec­tion of a con­ser­v­a­tive cul­ture in which the Con­sti­tu­tion is more fre­quent­ly dis­cussed, not a reflec­tion of the pol­i­tics of it.

It’s not the first time a con­ven­tion has been pro­posed.

In the 1890s, when the Sen­ate refused to take up the issue of direct elec­tion of sen­a­tors, states pur­sued a con­ven­tion, falling just short. Even­tu­al­ly, the 17th Amend­ment passed in the usu­al way, ful­fill­ing that aim. In the 1960s, states sought a con­ven­tion over a Supreme Court deci­sion dic­tat­ing how leg­isla­tive dis­tricts were appor­tioned.

But con­ven­tion oppo­nents have always feared that once one has been launched, it could tear up the Con­sti­tu­tions in all sorts of ways.

What’s to stop a con­ven­tion from pass­ing an abhor­rent affront to the Founders, like an out­right ban on Mus­lims, Klar­man asks. He points to a 2009 Swiss ref­er­en­dum that result­ed in out­law­ing the con­struc­tion of minarets, the tow­ers found beside mosques.

“It’s a dan­ger­ous route and an unpre­dictable one,” said Lau­rence Tribe, anoth­er Har­vard Uni­ver­si­ty con­sti­tu­tion­al law expert.

Jones said such fears are “mis­guid­ed” and that “so many stop­gaps” would pre­vent a “run­away” con­ven­tion.

“That sug­gests a fail­ure of insti­tu­tions that is so mas­sive that the last thing we need to wor­ry about is a con­sti­tu­tion­al amend­ment,” she said. “That would sug­gest that Con­gress failed in its duty to say, ‘Look, you dealt with an issue that is not con­tained in the res­o­lu­tion.’ That would require the judi­cia­ry to also not step in. It would require a fail­ure of all of our demo­c­ra­t­ic insti­tu­tions and it would require a fail­ure of the Amer­i­can peo­ple not to rise up.”

Still, sev­er­al states have rescind­ed pre­vi­ous calls for a con­ven­tion as law­mak­ers grew fear­ful of what it could bring.

Over the years, Neva­da law­mak­ers have made var­i­ous calls for a con­ven­tion to con­sid­er a ban on abor­tion, to pro­hib­it racial inte­gra­tion of schools and to abol­ish the 17th Amend­ment.

But when Demo­c­ra­t­ic state Sen. Tick Segerblom saw how close advo­cates were to hit­ting the 34-state mark, he real­ized the idea was no longer far-fetched and that it would be safer to back off its Arti­cle V votes rather than take the chance of a run­away con­ven­tion. So last year, he spon­sored a res­o­lu­tion to do just that.

The goals of con­ven­tion back­ers “are not the Demo­c­ra­t­ic Party’s goals or even the Repub­li­can Party’s goals,” he said. “It’s some fringe groups.”

...

———-

“Con­ser­v­a­tives want to bypass usu­al way to amend Con­sti­tu­tion” by MATT SEDENSKY; Asso­ci­at­ed Press; 11/03/2018 [71]

“They lit­er­al­ly see this as the sur­vival of the nation,” said Kar­la Jones, direc­tor of the fed­er­al­ism task force at the con­ser­v­a­tive Amer­i­can Leg­isla­tive Exchange Coun­cil, which rep­re­sents state law­mak­ers and offers guid­ance and mod­el leg­is­la­tion for states to call a con­ven­tion under the Constitution’s Arti­cle V.”

Kar­la Jones, direc­tor of the fed­er­al­ism task force at ALEC, describes the advo­cates call­ing for the con­sti­tu­tion­al con­ven­tion lit­er­al­ly see­ing the sur­vival of the nation at stake. And ALEC is, of course, one of those advo­cates. They aren’t hid­ing the scope of their ambi­tions. Ambi­tions that include a bal­anced bud­get amend­ment in addi­tion to repeal­ing the 17th Amend­ment. 28 states have already vot­ed for bal­anced bud­get amend­ments and more than 34 have vot­ed for some amend­ment. That’s how close this is to hap­pen­ing:

...
Among the most fre­quent­ly cit­ed changes being sought: amend­ments enforc­ing a bal­anced fed­er­al bud­get, estab­lish­ing term lim­its for mem­bers of Con­gress, and repeal­ing the 17th Amend­ment, which put the pow­er of elect­ing the Sen­ate in the hands of the pub­lic instead of state leg­is­la­tures.

For the past 229 years, con­sti­tu­tion­al amend­ments have orig­i­nat­ed in Con­gress, where they need the sup­port of two-thirds of both hous­es, and then the approval of at least three-quar­ters of the states.

But under a nev­er-used sec­ond prong of Arti­cle V, amend­ments can orig­i­nate in the states. Two-thirds of states — cur­rent­ly, 34 — must call for a con­ven­tion at which three-fourths of states approve of a change.

...

A bill intro­duced in the U.S. House last year would direct the Nation­al Archives to com­pile all appli­ca­tions for an Arti­cle V con­ven­tion.

Some believe enough states have already passed Arti­cle V res­o­lu­tions, point­ing to votes over the years across the coun­try on a vari­ety of poten­tial amend­ment top­ics. Oth­ers con­tend the high­est pos­si­ble cur­rent count of states is 28 — the num­ber of states with exist­ing res­o­lu­tions on the most com­mon con­ven­tion top­ic, a bal­anced bud­get amend­ment. Oth­ers point to low­er total counts based on states that have passed near-iden­ti­cal res­o­lu­tions.

Regard­less, pro­po­nents of a con­ven­tion believe they have momen­tum on their side more than any oth­er time in Amer­i­can his­to­ry.
...

And that ambi­gu­i­ty is why the Supreme Court might be need­ed to clar­i­fy whether or not the 2/3 state thresh­old has already been passed. Again, the Roberts court will be mak­ing this deci­sion prob­a­bly. That should go well:

...
The par­tic­u­lars of such a con­ven­tion, though, are not laid out. Do the states have to call for a con­ven­tion on the same top­ic? Must they pass res­o­lu­tions with sim­i­lar or iden­ti­cal word­ing? The U.S. Supreme Court may have to decide whether the thresh­old of states has been reached and, ulti­mate­ly, the para­me­ters of a con­ven­tion and the rules del­e­gates would be gov­erned by.
...

And while the pro­po­nents are omi­nous assur­ing us not to wor­ry about a run­away con­ven­tion, Nan­cy MacLean warns us that a con­sti­tu­tion­al over­haul of Amer­i­can has been a far right project for decades. What we’re see­ing now is the fruits of that labor:

...
“That sec­ond clause of Arti­cle V was specif­i­cal­ly intend­ed for a time like this, when the fed­er­al gov­ern­ment gets out of con­trol and when the Con­gress won’t deliv­er to the peo­ple what they want,” said Mark Meck­ler, a tea par­ty leader who now heads Cit­i­zens for Self-Gov­er­nance, which runs the Con­ven­tion of States Project call­ing for an Arti­cle V con­ven­tion. Leg­is­la­tion pro­mot­ed by the group calls for a con­ven­tion focused on the fed­er­al government’s bud­get and pow­er, and term lim­its for office hold­ers. It has passed 12 states and one leg­isla­tive cham­ber in anoth­er 10.

The Con­ven­tion of States Project says 18 oth­er states are con­sid­er­ing the mea­sure.

Meck­ler, like oth­er back­ers of a con­ven­tion, believes there’s no rea­son why it can’t be lim­it­ed in scope. Oth­ers aren’t so sure. Four states that pre­vi­ous­ly had passed res­o­lu­tions call­ing for a con­ven­tion have rescind­ed them in recent years, often cit­ing wari­ness over a “run­away” con­ven­tion.

Karen Hobert Fly­nn, pres­i­dent of Com­mon Cause, has sound­ed alarms on a pos­si­ble con­ven­tion and por­trays the coast-to-coast emer­gence of res­o­lu­tions on the issue “a game of Whack-a-Mole.”

“This is the most dan­ger­ous idea in Amer­i­can pol­i­tics that most peo­ple know noth­ing about,” she said.

Nan­cy MacLean, a Duke Uni­ver­si­ty his­to­ri­an and author of “Democ­ra­cy in Chains: The Deep His­to­ry of the Rad­i­cal Right’s Stealth Plan for Amer­i­ca,” views the prospect of an Arti­cle V con­ven­tion with fear — the next chap­ter of decades of work on the far right trans­form­ing the fed­er­al judi­cia­ry and sup­port­ing cas­es that go on to make broad con­sti­tu­tion­al points, all while sup­press­ing votes and ger­ry­man­der­ing dis­tricts.

“The ulti­mate project,” MacLean said of con­ser­v­a­tives, “is to trans­form our pri­ma­ry rules book, which is the Con­sti­tu­tion.”
...

And it’s the fact that the Repub­li­can Par­ty and the right-wing bil­lion­aires have so much pow­er already that they can make some­thing like this hap­pen that rais­es the iron­ic ques­tion: What are they unhap­py with? They already have a stran­gle­hold on wealth and pow­er in Amer­i­ca. That exist­ing stran­gle­hold is why they are able to arrange for some­thing as auda­cious as a con­sti­tu­tion­al con­ven­tion that will repeal:

...
There are pro­po­nents of an Arti­cle V con­ven­tion on the left who see it as a pos­si­ble way to over­turn the Cit­i­zens Unit­ed cam­paign finance deci­sion, pass the Equal Rights Amend­ment and oth­er­wise address what they see as a stacked deck that has helped the GOP get an unfair advan­tage. But with more red states than blue ones, it seems an unlike­ly path to abol­ish­ing the Elec­toral Col­lege, reengi­neer­ing appor­tion­ment of the Sen­ate or oth­er­wise devis­ing a democ­ra­cy they believe is more reflec­tive of the Amer­i­can public’s views.

In that view, it’s baf­fling to some observers that con­ser­v­a­tives are the ones push­ing a con­ven­tion.

“I don’t know what exact­ly they’re unhap­py with. When I look at the cur­rent pol­i­tics, it seems to me things for them are going real­ly well,” said con­sti­tu­tion­al law pro­fes­sor Michael Klar­man of Har­vard Uni­ver­si­ty. “They’re already get­ting what they want from the Supreme Court. Ger­ry­man­der­ing is fine. Unlim­it­ed mon­ey in pol­i­tics is fine. The Elec­toral Col­lege is OK. Vot­er purges, pho­to ID laws are OK. So I don’t know exact­ly what they’re look­ing for.”
...

Why do the most pow­er­ful peo­ple in Amer­i­ca want to over­haul the con­sti­tu­tion? That’s the ques­tion Amer­i­cans need to start ask­ing.

What Do the Wealth­i­est and Most Pow­er­ful Want? Low­er Tax­es And Few­er Reg­u­la­tions. Per­ma­nent­ly. It’s the Kochsti­tu­tion.

For­tu­nate­ly, we don’t need to ask what the Kochs and oth­er right-wing bil­lion­aires want to see from this con­sti­tu­tion­al over­haul agen­da. As the fol­low­ing 2017 IBT arti­cle describes, a Koch-financed group called Con­ven­tion of the States ran a sim­u­lat­ed con­ven­tion that year. It assumed each state gets one vote, which means the GOP would be dom­i­nat­ing the votes at the con­ven­tion. As we should expect from a Koch-backed con­ven­tion sim­u­la­tion, it was a bil­lion­aire’s dream. The 16th amend­ment was repealed elim­i­nat­ing the income tax and rais­ing tax­es would require a 3/5 vote. Reg­u­la­tions would be dra­mat­i­cal­ly weak­ened and con­gress would lose the abil­i­ty to reg­u­late any­thing that hap­pens entire­ly with­in a state. Increas­ing the fed­er­al debt for a year would require a 2/3rd vote in both the House and Sen­ate. That’s the kind of garbage that could become a con­sti­tu­tion­al amend­ment.

And as alarm­ing as the idea of the Roberts Court rul­ing on con­sti­tu­tion­al con­ven­tion ques­tions, there’s a more alarm­ing pos­si­bil­i­ty raised by George­town law pro­fes­sor David Super: the Supreme Court does­n’t have juris­dic­tion. Super argues that because the Supreme Court has con­sis­tent­ly argued that it only has juris­dic­tion with­in the con­sti­tu­tion that could mean it could argue it does­n’t have juris­dic­tion of the con­sti­tu­tion­al con­ven­tion. And if the Supreme Court does­n’t have juris­dic­tion over ques­tions of the con­sti­tu­tion­al con­ven­tion that makes it a free for all which is the great sce­nario for a run­away con­ven­tion.

Super also notes that the ambigu­ous nature of the rules for trig­ger­ing a con­ven­tion means a “fuzzy math” argu­ment — that the 34 state thresh­old can be met using any state res­o­lu­tion for any amend­ment and not for a spe­cif­ic res­o­lu­tion — can win out. And if the trig­ger for the con­ven­tion is state count based on a con­glom­er­a­tion of dif­fer­ent votes for dif­fer­ent amend­ments that inher­ent­ly makes the focus of the con­ven­tion less like­ly to be lim­it­ed to a spe­cif­ic set of amend­ments and more like­ly to become a run­away con­ven­tion. In oth­er words, ‘fuzzy math’ on the con­ven­tion trig­ger could make the focus of the con­sti­tu­tion­al con­ven­tion fuzzi­er too. And a fuzzy con­ven­tion focus and ambigu­ous Supreme Court juris­dic­tion is the per­fect recipe for a new con­sti­tu­tion. A new con­sti­tu­tion most­ly brought to you by the Koch broth­ers [72]:

Inter­na­tion­al Busi­ness Times

The Koch Broth­ers Want A New Con­sti­tu­tion — And They’re Clos­er Than You Think

By Josh Keefe
06/14/17 AT 12:30 PM

Update: The Wis­con­sin Assem­bly vot­ed to call for a con­sti­tu­tion­al con­ven­tion on Wednes­day in a 54–41 vote [73]. The Assem­bly also passed sep­a­rate leg­is­la­tion that set the process for select­ing con­ven­tion del­e­gates, and lim­it­ed those del­e­gates to vot­ing on amend­ments relat­ed to bal­anc­ing the bud­get.

Orig­i­nal Sto­ry:

The Wis­con­sin Assem­bly votes Wednes­day on whether to call for a con­ven­tion to change the U.S. Con­sti­tu­tion. While that in itself is sur­pris­ing — the Amer­i­can peo­ple have nev­er exer­cised their legal­ly enshrined right to con­vene a new Con­sti­tu­tion­al con­ven­tion — what’s more sur­pris­ing is that pro-busi­ness groups with ties to the Koch broth­ers have pushed for sim­i­lar leg­is­la­tion in more than 30 states, and they’ve been remark­ably suc­cess­ful: A dozen states have passed bills call­ing for a con­ven­tion that would pro­duce an altered Con­sti­tu­tion that would like­ly lim­it fed­er­al spend­ing and pow­er.

Accord­ing to Arti­cle V [74] of the Con­sti­tu­tion, just two thirds (34) of the 50 state leg­is­la­tures need to call for a con­ven­tion for the pur­pos­es of “propos­ing con­sti­tu­tion­al amend­ments” (no governor’s sig­na­ture is required). Those amend­ments would then need to be rat­i­fied by three quar­ters of the states, cur­rent­ly 38, to become law. But beyond those very basic require­ments, nobody knows what the rules for a con­ven­tion would be, since one hasn’t occurred since the orig­i­nal in 1787. That sin­gle instance, Con­sti­tu­tion­al law experts warn, pro­vides a har­row­ing prece­dent: Del­e­gates tore up the Arti­cles of Con­fed­er­a­tion they had con­vened to improve, and pro­duced a whole new gov­ern­ing doc­u­ment.

The Wis­con­sin leg­is­la­tion [75], which is sup­port­ed by Gov. Scott Walk­er [76], was intro­duced by Repub­li­can Sen. Chris Kapen­ga, who intro­duced sim­i­lar leg­is­la­tion in Jan­u­ary 2014 [77] as a mem­ber of the Assem­bly. His bill would call a con­ven­tion to pass con­sti­tu­tion­al amend­ments that would require the fed­er­al gov­ern­ment to bal­ance the bud­get, some­thing that Con­gress will sim­ply nev­er do on its own, Kapen­ga told Inter­na­tion­al Busi­ness Times.

“For the coun­try to con­tin­ue spend­ing at this rate, where expen­di­tures are exceed­ing rev­enues con­sis­tent­ly, is not sus­tain­able,” Kapen­ga said. “Whether it’s Democ­rats or Repub­li­cans in charge in Wash­ing­ton, it’s not get­ting fixed, and no solu­tions are being pro­posed to deal with it...I think this is the only option left.”

...

One of the two main groups push­ing an Arti­cle V con­ven­tion is the Con­ven­tion of States [78], a project by Cit­i­zens for Self-Gov­ern­ment, a non­prof­it that doesn’t dis­close its donors and has a vari­ety of con­nec­tions to David and Charles Koch, the bil­lion­aire indus­tri­al­ist broth­ers whose epony­mous com­pa­ny is one of the country’s worst pol­luters [79] and who have become syn­ony­mous with both overt and covert polit­i­cal spend­ing in pur­suit of lim­it­ed gov­ern­ment.

Anoth­er non­prof­it sup­port­ing the move­ment is the Amer­i­can Leg­isla­tive Exchange Coun­cil, or ALEC, an orga­ni­za­tion [80] “ded­i­cat­ed to the prin­ci­ples of lim­it­ed gov­ern­ment, free mar­kets and fed­er­al­ism” that brings cor­po­ra­tions and law­mak­ers togeth­er to draft mod­el leg­is­la­tion that is then intro­duced in the states. ALEC doesn’t dis­close its mem­bers, although the group’s oppo­si­tion to cli­mate change mea­sures, gun con­trol and vot­ing rights has led to a recent exo­dus [81] of mem­ber cor­po­ra­tions and law­mak­ers.

Anoth­er anony­mous-donor group called the Bal­anced Bud­get Amend­ment Task Force [82] is call­ing specif­i­cal­ly for a bal­anced bud­get amend­ment, as its name would sug­gest. That group says it has 27 states on board, based on pre­vi­ous calls going back decades for a bal­anced bud­get amend­ment, start­ing with Indi­ana in 1957.

ALEC has draft­ed mod­el Arti­cle V leg­is­la­tion [83] and near­ly iden­ti­cal leg­is­la­tion passed the state leg­is­la­ture in Mis­souri [84] at the end of May; it called for a con­ven­tion to “impose fis­cal restraints on the fed­er­al gov­ern­ment, lim­it the pow­er and juris­dic­tion of the fed­er­al gov­ern­ment, and lim­it the terms of office for its offi­cials and for mem­bers of Con­gress.” Texas [85] also passed Arti­cle V leg­is­la­tion last month, but the bill’s lan­guage, like the Wis­con­sin bill, more nar­row­ly lim­its con­ven­tion del­e­gates to vot­ing on amend­ments that would bal­ance the bud­get.

“We need to make sure it’s crys­tal clear that we have no legal author­i­ty out­side of that dis­cus­sion point,” Kapen­ga told IBT. The sen­a­tor said the bill was not inspired by ALEC or oth­er cor­po­rate inter­ests and that his bill dif­fered from ALEC’s mod­el leg­is­la­tion.

“Just because some­body is push­ing the same inter­est as me, doesn’t mean they are dri­ving me,” Kapen­ga said.

Tay­lor attend­ed ALEC’s 2013 con­fer­ence in Chica­go [86] where Cit­i­zens for Self-Gov­er­nance pitched the Arti­cle V con­ven­tion to law­mak­ers. She told IBT she saw the same pre­sen­ta­tion that inspired Kapan­ga to author his bill.

“I can’t empha­size this enough: This was a call-to-action work­shop,” Tay­lor told IBT. “This was a work­shop where the leg­is­la­tors were told if you don’t do this, if you don’t lead this effort, if you don’t go home and push this amend­ment, then you will be fail­ing the Repub­lic. It was like a church revival... I’m sit­ting back there think­ing ‘oh my god this is wacky.’

“I was sit­ting sev­er­al rows behind the lead author of the bill, Chris Kapan­ga,” Tay­lor said. “He’s try­ing to present this as his own idea. It’s real­ly kind of laugh­able. I was there. I said to myself ‘I will see this bill in six months.’ Sure enough, I saw the bill in Jan­u­ary.”

‘Trump is not the solu­tion’

Con­ven­tion of the States is pop­u­lat­ed by Tea Par­ty vet­er­ans [87]. It was co-found­ed by Mark Meck­ler [88], co-founder of the Tea Par­ty Patri­ots, and is chaired by Eric O’Keefe, vet­er­an polit­i­cal oper­a­tive and long­time Koch broth­ers ally [89] who worked on David Koch’s 1980 pres­i­den­tial cam­paign, chaired the now-defunct Sam Adams Alliance, which trained tea par­ty activists, co-found­ed the Cam­paign for Pri­ma­ry Account­abil­i­ty, a super PAC [90] that sup­port­ed pri­ma­ry chal­lenges to incum­bent law­mak­ers of both par­ties, and directs the Wis­con­sin Club For Growth.

On Mon­day, the Con­ven­tion of States announced that for­mer South Car­oli­na Sen. Jim DeMint [91], R‑SC, who was one of the first elect­ed offi­cials [92] to embrace the Tea Par­ty move­ment and was recent­ly oust­ed as the head of the Her­itage Foun­da­tion [93], had joined the group.

“I tried to rein in Wash­ing­ton from inside the House and Sen­ate, then by start­ing the Sen­ate Con­ser­v­a­tives Fund to elect good con­ser­v­a­tives, and final­ly as pres­i­dent of the Her­itage Foun­da­tion, cre­at­ing and pro­mot­ing good, con­ser­v­a­tive pol­i­cy,” Demit said in a state­ment [94]. “But once I real­ized that Wash­ing­ton will nev­er will­ing­ly return deci­sion-mak­ing pow­er back to the Amer­i­can peo­ple and the states, I began to search for anoth­er way to restrain the fed­er­al gov­ern­ment.”

Accord­ing to the Cen­ter for Media and Democ­ra­cy [95], Koch-linked groups have donat­ed near­ly $5.4 mil­lion to Cit­i­zens for Self-Gov­ern­ment between 2011, when the group was found­ed, until 2015, the last year tax records are avail­able. IRS fil­ings [96] show Cit­i­zens for Self-Gov­ern­ment fund­ing increased from $1.8 mil­lion to $5.7 mil­lion over that peri­od.

“The Amer­i­can peo­ple are fed up. Trump is not the solu­tion. He’s a symp­tom of that frus­tra­tion,” Meck­ler told USA Today ear­li­er this week [91].“The Amer­i­can peo­ple are see­ing that didn’t solve the prob­lem, so now what? Even­tu­al­ly, they will come to this solu­tion.”

‘A Very Real Threat’

Even though such a con­ven­tion would be unprece­dent­ed, with no clear rules on how it would work, Con­sti­tu­tion­al law experts admit it could hap­pen.

“I think it is very pos­si­ble,” David Super [97], a law pro­fes­sor at George­town Law, told IBT. “It’s a very real threat.”

By using what Super calls “fuzzy math,” advo­cates of the effort say they are actu­al­ly on the cusp of suc­cess. Arti­cle V advo­cates note that many states have called for con­ven­tions in decades and even cen­turies past. When count­ing those states, the total num­ber of states call­ing for a con­sti­tu­tion­al con­ven­tion is at 27 [98]. As Super points out, giv­en that Repub­li­cans con­trol Con­gress, the Exec­u­tive and the leg­is­la­tures in 32 states, it’s not hard to imag­ine a sce­nario where the “fuzzy math” is enough. If that hap­pens and a con­ven­tion is con­vened, Super warns, there would be no enforce­able mech­a­nism that would ensure del­e­gates stick to the amend­ments they were called upon to con­sid­er, mak­ing a “run­away con­ven­tion” pos­si­ble.

“There’s noth­ing in the Con­sti­tu­tion that pro­vides for a lim­it­ed pur­pose con­ven­tion,” Super told IBT. There is prece­dent that sug­gests offi­cials select­ed by the states become fed­er­al offi­cials once they take office, and can’t be recalled by the states if they devi­ate from their stat­ed objec­tive, as con­ven­tion pro­po­nents have argued. And, Super argued, the Supreme Court has large­ly estab­lished that it rules with­in the con­fines of the Con­sti­tu­tion, so a con­ven­tion would be out­side of its juris­dic­tion.

“There is absolute­ly no ref­er­ee,” Super said. This could open up the con­ven­tion to a flood of spe­cial inter­est mon­ey. And there is no rule stat­ing the con­ven­tion would have to be open to the pub­lic. “We wouldn’t know if every­body with big mon­ey was work­ing over the del­e­gates… There are absolute­ly no rules at all.”

But the one rule that is clear in the cur­rent Con­sti­tu­tion, a rule which some warn could be rewrit­ten at a con­ven­tion, is that 38 states, or three-quar­ters of the states, would have to rat­i­fy what­ev­er came out of the con­ven­tion.

“There is a risk of a run­away con­ven­tion,” Michael Ger­hardt, a con­sti­tu­tion­al law pro­fes­sor at the UNC School of Law told IBT. How­ev­er, he said, “you could come up in the­o­ry with a rel­a­tive­ly bizarre amend­ment, but you would need three-quar­ters of the states to rat­i­fy. That’s the pre­sumed pro­tec­tion against a rogue amend­ment.”

But there’s no time lim­it for rat­i­fi­ca­tion. As the 27th Amendment’s 200-year wait for rat­i­fi­ca­tion shows, [99] over time, state leg­is­la­tures could change hands and a climb to 38 could be pos­si­ble. (Con­gress has at times put time lim­its [100] on rat­i­fi­ca­tion for sev­er­al Con­sti­tu­tion­al amend­ments it sent to the states.)

...

Rescind­ing Out­stand­ing Con­ven­tion Calls

Still, the pos­si­bil­i­ty of a con­ven­tion is real enough that in the last few months law­mak­ers opposed to the idea in Neva­da [101], New Mex­i­co [102] and Mary­land [103] have qui­et­ly combed through their leg­isla­tive records to iden­ti­fy, and rescind, all pre­vi­ous calls for a con­ven­tion so as not to have their states count­ed toward the 34-state thresh­old. In 2014, Ver­mont called for a con­sti­tu­tion­al con­ven­tion to over­turn Cit­i­zens Unit­ed, but the state’s leg­is­la­ture recent­ly recent­ly rescind­ed that call [104] in response to the grow­ing Arti­cle V move­ment.

In Mary­land, William Frick, the Demo­c­ra­t­ic major­i­ty leader of the state’s House of Del­e­gates, intro­duced leg­is­la­tion that rescind­ed at least four pre­vi­ous calls for a con­sti­tu­tion­al con­ven­tion that had to do with prayer in schools and repeal­ing income tax­es, among oth­er issues.

“We had a sense that there are groups out there look­ing to make rad­i­cal changes to the Con­sti­tu­tion through this con­ven­tion process and we didn’t want Mary­land to be con­tribut­ing to that, regard­less of what the osten­si­ble sub­ject mat­ter was,” Frick told IBT.

A bal­anced bud­get amend­ment could wreak hav­oc on the Mary­land econ­o­my, which is heav­i­ly depen­dent on fed­er­al jobs in near­by Wash­ing­ton, D.C. But experts warn the dam­age wouldn’t be lim­it­ed to the belt­way. While ALEC told IBT that excep­tions to the bal­anced bud­get rules would exist for cas­es of war or an emer­gency, the nat­ur­al eco­nom­ic cycle of reces­sion and recov­ery could be exac­er­bat­ed by a require­ment the fed­er­al gov­ern­ment bal­ance its books.

In Jan­u­ary, the Cen­ter on Bud­get and Pol­i­tics Pri­or­i­ties [105] said bal­anced bud­get amend­ment would “launch a vicious spi­ral of bad eco­nom­ic and fis­cal pol­i­cy: a weak­er econ­o­my would lead to high­er deficits, which would force pol­i­cy­mak­ers to cut spend­ing or raise tax­es more, which would weak­en the econ­o­my fur­ther.”

While near­ly all states are legal­ly required to have bal­anced bud­gets, the fed­er­al gov­ern­ment is often there to fill the gaps and pro­vide need­ed fund­ing in the event of a reces­sion. If the fed­er­al gov­ern­ment were required to have bal­anced bud­gets, oppo­nents argue, reces­sions would be longer and deep­er, because when tax rev­enues fall, the gov­ern­ment would have less mon­ey to spend on things like food stamps, unem­ploy­ment insur­ance and invest­ment in projects that could spur growth. Essen­tial­ly, the gov­ern­ment would be unable to use Key­ne­sian eco­nom­ic tools.

For pro­po­nents, of course, this tem­po­rary pain would be an accept­able side effect for the ben­e­fits of end­ing the fed­er­al deficit.

A Con­ven­tion Dress Rehearsal

While experts main­tain there is sim­ply no way to know what a con­ven­tion would look like, what the rules are, or even who would make the rules, some groups have tak­en steps to turn the abstract con­cept of a mod­ern con­sti­tu­tion­al con­ven­tion into a con­crete process. The Assem­bly of State Leg­is­la­tures [106] is, as the name implies, a group of state law­mak­ers who are devel­op­ing a set of rules [107] that could be used at a con­sti­tu­tion­al con­ven­tion. The group is led by Kapan­ga and Mis­souri Demo­c­ra­t­ic Sen. Jason Hols­man, who intro­duced leg­is­la­tion [108] in Mis­souri call­ing for a con­sti­tu­tion­al con­ven­tion in order to imple­ment “free and fair elec­tions,” mir­ror­ing efforts by some on the left to use the Arti­cle V process to over­turn the 2010 Cit­i­zens Unit­ed Supreme Court deci­sion.

Sim­i­lar rules were devel­oped and used at the Con­ven­tion of States’ sim­u­lat­ed con­ven­tion [109] con­ven­tion in Williams­burg, Vir­ginia, in Sep­tem­ber. Both sets of rules man­dat­ed that each state receive one vote, which means that Wyoming would have the same pow­er at a con­ven­tion as Cal­i­for­nia. This would dras­ti­cal­ly tilt the bal­ance of pow­er at a con­ven­tion toward Repub­li­cans. For exam­ple, while Hillary Clin­ton won the pop­u­lar vote in last year’s elec­tion, she won just 20 states and the Dis­trict of Colum­bia.

Cham­pi­ons of the Arti­cle V push say the sim­u­lat­ed con­ven­tion shows the process would work and wouldn’t become a free for all. “It demon­strates the con­ven­tion is not going to run away,” Kar­la Jones, the direc­tor of ALEC’s fed­er­al­ism task force, told IBT. “We believe that the run­away con­ven­tion is myth.”

Giv­en that there was noth­ing at stake, and no spe­cial inter­ests greas­ing del­e­gate palms, it’s per­haps not sur­pris­ing the sim­u­lat­ed con­ven­tion didn’t get out of hand. But the amend­ments the sim­u­lat­ed con­ven­tion did pass would be seen by many as rad­i­cal changes to the sys­tem of Amer­i­can gov­ern­ment.

The amend­ments passed would:

* Require a vote of two-thirds in both hous­es of Con­gress to increase the pub­lic debt for one year.

* Restrict Con­gress’ pow­ers to reg­u­late goods to only “the sale, ship­ment, trans­porta­tion, or oth­er move­ment of goods, arti­cles or per­sons” across state lines. Con­gress would not have the pow­er to “reg­u­late or pro­hib­it any activ­i­ty that is con­fined with­in a sin­gle state regard­less of its effects out­side the state.”

* Lim­it mem­bers of the House to six terms and sen­a­tors to two terms.

* Give the col­lec­tive states the pow­er to void any law, statute, exec­u­tive order, or reg­u­la­to­ry rule issued by Con­gress, the pres­i­dent or reg­u­la­to­ry agen­cies if three-fifths of the states vote against the fed­er­al action.

* Repeal the 16th Amend­ment and require a three-fifths vote by the House and Sen­ate to increase or imple­ment new tax­es.

* Imple­ment a mech­a­nism that would allow a quar­ter of the House to declare oppo­si­tion to any fed­er­al reg­u­la­tion. If that hap­pened, it would trig­ger a con­gres­sion­al vote on the reg­u­la­tion and would require a major­i­ty of the House and Sen­ate to affirm the reg­u­la­tion.

It’s hard to begin to untan­gle the myr­i­ad con­se­quences of those amend­ments, but what’s clear is they would dras­ti­cal­ly reduce the pow­er and scope of the fed­er­al gov­ern­ment and rad­i­cal­ly realign the fed­er­al­ist sys­tem.

“This is very much aban­don­ing every­thing our coun­try has been,” Super told IBT. “This is not tweak­ing or improv­ing — this is aban­don­ing it.”

———-

“The Koch Broth­ers Want A New Con­sti­tu­tion — And They’re Clos­er Than You Think” by Josh Keefe; Inter­na­tion­al Busi­ness Times; 06/14/2017 [72]

“Accord­ing to Arti­cle V [74] of the Con­sti­tu­tion, just two thirds (34) of the 50 state leg­is­la­tures need to call for a con­ven­tion for the pur­pos­es of “propos­ing con­sti­tu­tion­al amend­ments” (no governor’s sig­na­ture is required). Those amend­ments would then need to be rat­i­fied by three quar­ters of the states, cur­rent­ly 38, to become law. But beyond those very basic require­ments, nobody knows what the rules for a con­ven­tion would be, since one hasn’t occurred since the orig­i­nal in 1787. That sin­gle instance, Con­sti­tu­tion­al law experts warn, pro­vides a har­row­ing prece­dent: Del­e­gates tore up the Arti­cles of Con­fed­er­a­tion they had con­vened to improve, and pro­duced a whole new gov­ern­ing doc­u­ment.”

The rules for a con­sti­tu­tion­al con­ven­tion are ambigu­ous and the only one oth­er exam­ple is the orig­i­nal con­sti­tu­tion­al con­vern­tion of 1787. And in that case they lit­er­al­ly did have a run­away con­ven­tion. The US con­sti­tu­tion is the result of a run­away con­ven­tion. So that’s a pret­ty pow­er­ful answer to the ques­tion of whether or not a run­away con­ven­tion is pos­si­ble.

And if there is a run­away con­ven­tion, it’s going to be brought to us by ALEC and oth­er Koch-backed enti­ties like Con­ven­tion of States. The Kochs have poured over $5 mil­lion into this since 2011. Anoth­er orga­ni­za­tion, the Bal­anced Bud­get Amend­ment Task Force, is backed by anony­mous donors. Over­haul­ing the Con­sti­tu­tion is an elite hob­by. Elite and dis­crete:

...
One of the two main groups push­ing an Arti­cle V con­ven­tion is the Con­ven­tion of States [78], a project by Cit­i­zens for Self-Gov­ern­ment, a non­prof­it that doesn’t dis­close its donors and has a vari­ety of con­nec­tions to David and Charles Koch, the bil­lion­aire indus­tri­al­ist broth­ers whose epony­mous com­pa­ny is one of the country’s worst pol­luters [79] and who have become syn­ony­mous with both overt and covert polit­i­cal spend­ing in pur­suit of lim­it­ed gov­ern­ment.

Anoth­er non­prof­it sup­port­ing the move­ment is the Amer­i­can Leg­isla­tive Exchange Coun­cil, or ALEC, an orga­ni­za­tion [80] “ded­i­cat­ed to the prin­ci­ples of lim­it­ed gov­ern­ment, free mar­kets and fed­er­al­ism” that brings cor­po­ra­tions and law­mak­ers togeth­er to draft mod­el leg­is­la­tion that is then intro­duced in the states. ALEC doesn’t dis­close its mem­bers, although the group’s oppo­si­tion to cli­mate change mea­sures, gun con­trol and vot­ing rights has led to a recent exo­dus [81] of mem­ber cor­po­ra­tions and law­mak­ers.

Anoth­er anony­mous-donor group called the Bal­anced Bud­get Amend­ment Task Force [82] is call­ing specif­i­cal­ly for a bal­anced bud­get amend­ment, as its name would sug­gest. That group says it has 27 states on board, based on pre­vi­ous calls going back decades for a bal­anced bud­get amend­ment, start­ing with Indi­ana in 1957.

...

Con­ven­tion of the States is pop­u­lat­ed by Tea Par­ty vet­er­ans [87]. It was co-found­ed by Mark Meck­ler [88], co-founder of the Tea Par­ty Patri­ots, and is chaired by Eric O’Keefe, vet­er­an polit­i­cal oper­a­tive and long­time Koch broth­ers ally [89] who worked on David Koch’s 1980 pres­i­den­tial cam­paign, chaired the now-defunct Sam Adams Alliance, which trained tea par­ty activists, co-found­ed the Cam­paign for Pri­ma­ry Account­abil­i­ty, a super PAC [90] that sup­port­ed pri­ma­ry chal­lenges to incum­bent law­mak­ers of both par­ties, and directs the Wis­con­sin Club For Growth.

...

Accord­ing to the Cen­ter for Media and Democ­ra­cy [95], Koch-linked groups have donat­ed near­ly $5.4 mil­lion to Cit­i­zens for Self-Gov­ern­ment between 2011, when the group was found­ed, until 2015, the last year tax records are avail­able. IRS fil­ings [96] show Cit­i­zens for Self-Gov­ern­ment fund­ing increased from $1.8 mil­lion to $5.7 mil­lion over that peri­od.

“The Amer­i­can peo­ple are fed up. Trump is not the solu­tion. He’s a symp­tom of that frus­tra­tion,” Meck­ler told USA Today ear­li­er this week [91].“The Amer­i­can peo­ple are see­ing that didn’t solve the prob­lem, so now what? Even­tu­al­ly, they will come to this solu­tion.”
...

And as George­town law pro­fes­sor David Super warns, the threat of a run­away con­ven­tion is very real. Espe­cial­ly because it’s unclear what the rules are for hit­ting the 34 state thresh­old and a ‘fuzzy math’ sce­nario of count­ing any amend­ment res­o­lu­tion (and not 34 states pass­ing the same res­o­lu­tion) could eas­i­ly win out. And if that hap­pens it’s a lot hard­er to keep the con­ven­tion focused on a few pre-select­ed amend­ments mak­ing a run­away con­ven­tion all the more like­ly:

...
‘A Very Real Threat’

Even though such a con­ven­tion would be unprece­dent­ed, with no clear rules on how it would work, Con­sti­tu­tion­al law experts admit it could hap­pen.

“I think it is very pos­si­ble,” David Super [97], a law pro­fes­sor at George­town Law, told IBT. “It’s a very real threat.”

By using what Super calls “fuzzy math,” advo­cates of the effort say they are actu­al­ly on the cusp of suc­cess. Arti­cle V advo­cates note that many states have called for con­ven­tions in decades and even cen­turies past. When count­ing those states, the total num­ber of states call­ing for a con­sti­tu­tion­al con­ven­tion is at 27 [98]. As Super points out, giv­en that Repub­li­cans con­trol Con­gress, the Exec­u­tive and the leg­is­la­tures in 32 states, it’s not hard to imag­ine a sce­nario where the “fuzzy math” is enough. If that hap­pens and a con­ven­tion is con­vened, Super warns, there would be no enforce­able mech­a­nism that would ensure del­e­gates stick to the amend­ments they were called upon to con­sid­er, mak­ing a “run­away con­ven­tion” pos­si­ble.
...

And as Super warns, it’s pos­si­ble the Supreme Court will rules it does­n’t have juris­dic­tion over a con­ven­tion, which will make a run­away con­ven­tion even more like­ly because no enti­ty will have over­sight. We don’t even know if the nego­ti­a­tions would have to be open to the pub­lic:

...
“There’s noth­ing in the Con­sti­tu­tion that pro­vides for a lim­it­ed pur­pose con­ven­tion,” Super told IBT. There is prece­dent that sug­gests offi­cials select­ed by the states become fed­er­al offi­cials once they take office, and can’t be recalled by the states if they devi­ate from their stat­ed objec­tive, as con­ven­tion pro­po­nents have argued. And, Super argued, the Supreme Court has large­ly estab­lished that it rules with­in the con­fines of the Con­sti­tu­tion, so a con­ven­tion would be out­side of its juris­dic­tion.

“There is absolute­ly no ref­er­ee,” Super said. This could open up the con­ven­tion to a flood of spe­cial inter­est mon­ey. And there is no rule stat­ing the con­ven­tion would have to be open to the pub­lic. “We wouldn’t know if every­body with big mon­ey was work­ing over the del­e­gates… There are absolute­ly no rules at all.”

But the one rule that is clear in the cur­rent Con­sti­tu­tion, a rule which some warn could be rewrit­ten at a con­ven­tion, is that 38 states, or three-quar­ters of the states, would have to rat­i­fy what­ev­er came out of the con­ven­tion.
...

And while con­sti­tu­tion­al law pro­fes­sor Michael Ger­hardt notes that the 3/4 thresh­old of states required to rat­i­fy any­thing com­ing out of a state con­ven­tion will pre­sum­ably pro­tect soci­ety from the most rad­i­cal results of a run­away con­ven­tion, we have to keep in mind that there’s no time lim­it on rat­i­fi­ca­tion. A run­away con­ven­tion could send a pro­pos­al back to the state leg­is­la­ture to rat­i­fy and the bil­lion­aires could spend the next cen­tu­ry lob­by­ing to get it rat­i­fied:

...
“There is a risk of a run­away con­ven­tion,” Michael Ger­hardt, a con­sti­tu­tion­al law pro­fes­sor at the UNC School of Law told IBT. How­ev­er, he said, “you could come up in the­o­ry with a rel­a­tive­ly bizarre amend­ment, but you would need three-quar­ters of the states to rat­i­fy. That’s the pre­sumed pro­tec­tion against a rogue amend­ment.”

But there’s no time lim­it for rat­i­fi­ca­tion. As the 27th Amendment’s 200-year wait for rat­i­fi­ca­tion shows, [99] over time, state leg­is­la­tures could change hands and a climb to 38 could be pos­si­ble. (Con­gress has at times put time lim­its [100] on rat­i­fi­ca­tion for sev­er­al Con­sti­tu­tion­al amend­ments it sent to the states.)
...

And note how the Repub­li­can dom­i­na­tion of state gov­ern­ments would guar­an­tee Repub­li­can dom­i­na­tion of any con­ven­tion based on the fact that a con­ven­tion would like­ly entail using a one-state-one-vote mod­el. Not a pro­por­tion­al rep­re­sen­ta­tion mod­el. It would be like the Sen­ate, which is strong­ly skewed towards the Repub­li­cans. When the Koch-backed Con­ven­tion of the States group did its con­ven­tion sim­u­la­tion that was part of the rules and also when a bipar­ti­san group of state law­mak­ers ran their own sim­u­la­tion to devel­op rules for the pos­si­bil­i­ty. In both cas­es they assumed a one-state-one-vote mod­el and that means Repub­li­can dom­i­na­tion of any con­ven­tion votes. And there­fore Koch Broth­er dom­i­na­tion of any con­ven­tion votes:

...
A Con­ven­tion Dress Rehearsal

While experts main­tain there is sim­ply no way to know what a con­ven­tion would look like, what the rules are, or even who would make the rules, some groups have tak­en steps to turn the abstract con­cept of a mod­ern con­sti­tu­tion­al con­ven­tion into a con­crete process. The Assem­bly of State Leg­is­la­tures [106] is, as the name implies, a group of state law­mak­ers who are devel­op­ing a set of rules [107] that could be used at a con­sti­tu­tion­al con­ven­tion. The group is led by Kapan­ga and Mis­souri Demo­c­ra­t­ic Sen. Jason Hols­man, who intro­duced leg­is­la­tion [108] in Mis­souri call­ing for a con­sti­tu­tion­al con­ven­tion in order to imple­ment “free and fair elec­tions,” mir­ror­ing efforts by some on the left to use the Arti­cle V process to over­turn the 2010 Cit­i­zens Unit­ed Supreme Court deci­sion.

Sim­i­lar rules were devel­oped and used at the Con­ven­tion of States’ sim­u­lat­ed con­ven­tion [109] con­ven­tion in Williams­burg, Vir­ginia, in Sep­tem­ber. Both sets of rules man­dat­ed that each state receive one vote, which means that Wyoming would have the same pow­er at a con­ven­tion as Cal­i­for­nia. This would dras­ti­cal­ly tilt the bal­ance of pow­er at a con­ven­tion toward Repub­li­cans. For exam­ple, while Hillary Clin­ton won the pop­u­lar vote in last year’s elec­tion, she won just 20 states and the Dis­trict of Colum­bia.
...

So what did the Koch’s sim­u­lat­ed con­ven­tion pass? An elim­i­na­tion of the 16th amend­ment (the income tax) and an assault on reg­u­la­tions. And a 2/3 vote on both cham­bers of con­gress to raise the debt. It would basi­cal­ly undo almost all fed­er­al gov­ern­ment advances since the New Deal:

...
The amend­ments passed would:

* Require a vote of two-thirds in both hous­es of Con­gress to increase the pub­lic debt for one year.

* Restrict Con­gress’ pow­ers to reg­u­late goods to only “the sale, ship­ment, trans­porta­tion, or oth­er move­ment of goods, arti­cles or per­sons” across state lines. Con­gress would not have the pow­er to “reg­u­late or pro­hib­it any activ­i­ty that is con­fined with­in a sin­gle state regard­less of its effects out­side the state.”

* Lim­it mem­bers of the House to six terms and sen­a­tors to two terms.

* Give the col­lec­tive states the pow­er to void any law, statute, exec­u­tive order, or reg­u­la­to­ry rule issued by Con­gress, the pres­i­dent or reg­u­la­to­ry agen­cies if three-fifths of the states vote against the fed­er­al action.

* Repeal the 16th Amend­ment and require a three-fifths vote by the House and Sen­ate to increase or imple­ment new tax­es.

* Imple­ment a mech­a­nism that would allow a quar­ter of the House to declare oppo­si­tion to any fed­er­al reg­u­la­tion. If that hap­pened, it would trig­ger a con­gres­sion­al vote on the reg­u­la­tion and would require a major­i­ty of the House and Sen­ate to affirm the reg­u­la­tion.

It’s hard to begin to untan­gle the myr­i­ad con­se­quences of those amend­ments, but what’s clear is they would dras­ti­cal­ly reduce the pow­er and scope of the fed­er­al gov­ern­ment and rad­i­cal­ly realign the fed­er­al­ist sys­tem.

“This is very much aban­don­ing every­thing our coun­try has been,” Super told IBT. “This is not tweak­ing or improv­ing — this is aban­don­ing it.”
...

“This is very much aban­don­ing every­thing our coun­try has been...This is not tweak­ing or improv­ing — this is aban­don­ing it.”

An aban­don­ment of every­thing our coun­try has been. That’s a pret­ty good way to describe what would hap­pen if the Con­ven­tion of the States’s con­sti­tu­tion­al con­ven­tion sim­u­la­tion ver­sion became the new law of the land. A shriv­eled fed­er­al gov­ern­ment and per­ma­nent­ly low tax­es and reg­u­la­tions. The Koch agen­da enshrined in the con­sti­tu­tion.

And that’s more or less the answer to the ques­tion of “what could those who have almost every­thing want?” Hav­ing their desires enshrined in the con­sti­tu­tion is the answer. The future brought to you by Koch.

So let’s review what we’ve learned:

1. The Supreme Court just made a his­tor­i­cal­ly trag­ic rul­ing in Rucho v. Com­mon Cause that removed fed­er­al courts from issues of par­ti­san redis­trict­ing maps.

2. The Kochs and ALEC are work­ing on remov­ing state courts from par­ti­san redis­trict­ing ques­tions too, leav­ing it entire­ly up to state leg­is­la­tures.

3. This sit­u­a­tion means state leg­is­la­tors can poten­tial­ly ger­ry­man­der their own dis­tricts as extreme­ly as they want in addi­tion to ger­ry­man­der­ing con­gres­sion­al dis­tricts, so the GOP can poten­tial­ly lock in its his­toric dom­i­na­tion of state gov­ern­ments.

4. The Kochs and ALEC are also work­ing on repeal­ing the 17th Amend­ment and return­ing the selec­tion of US Sen­a­tors to state leg­is­la­tures. Giv­en the GOP’s dom­i­na­tion of state gov­ern­ment this would net the GOP 27 Sen­a­tors today.

5. The repeal effort for the 17th Amend­ment is part of a larg­er Koch/ALEC effort to trig­ger a con­sti­tu­tion­al con­ven­tion. That 34 state thresh­old has already arguably been passed if ‘fuzzy math’ is used and is close to being passed if the bal­anced bud­get amend­ment alone is used.

6. There are no clear rules on how a con­sti­tu­tion­al con­ven­tion would be run. And the Supreme Court might rule that it does­n’t have juris­dic­tion. It’s a per­fect sce­nario for a run­away con­ven­tion.

7. The sim­u­lat­ed con­sti­tu­tion­al con­ven­tion cre­at­ed by the Koch-backed Con­ven­tion of the States group would be an aban­don­ment of what the Unit­ed States has become and per­ma­nent­ly enshrine a regime of low tax­es and low reg­u­la­tions.

So we’re basi­cal­ly look­ing at the most elab­o­rate and dia­bol­i­cal tax cut ever that’s one part of a much larg­er cap­ture of gov­ern­ment. A cap­ture of gov­ern­ment pred­i­cat­ed on cor­rupt­ing state gov­ern­ments by cor­rupt­ing state elec­tion laws then using those cap­tured state gov­ern­ments to over­haul the con­sti­tu­tion.

And the Supreme Court’s con­ser­v­a­tive major­i­ty seems large­ly cool with this agen­da so far. At least with the cap­ture of state gov­ern­ment. That’s clear­ly some­thing Jus­tice Roberts is fine with. He cham­pi­oned Cit­i­zens Unit­ed. He cham­pi­oned Rucho v. Com­mon Cause. Roberts is clear­ly very pro­tec­tive if the rights of the bil­lion­aires to cap­ture gov­ern­ment. Their free­doms to do so must not be cur­tailed at all. And that includes the free­dom to direct their cap­tured state leg­is­la­tures to draw the most hyper-par­ti­san redis­trict­ing lines as pos­si­ble. That’s a free­dom Jus­tice Roberts is very keen on pro­tect­ing.

It’s all anoth­er grim reminder that elec­tions have con­se­quences. And one of the con­se­quences of repeat­ed­ly elect­ing Repub­li­cans despite the par­ty bla­tant­ly sell­ing out to bil­lion­aires is that elec­tions in hyper-ger­ry­man­dered dis­tricts might not actu­al­ly have con­se­quences any­more. The out­comes will be a fore­gone con­clu­sion.

So that’s one of the sleep­er issues for the 2020 elec­tion: whether or not elec­tions should have con­se­quences. It’s an alarm­ing­ly con­test­ed issue [110].