Thursday, June 21, 2012
Mitch McConnell's Meanderings
Secrecy and a free, democratic government don’t mix.
—Harry S. Truman, Merle Miller, Plain Speaking
The mark of a great politician is the ability to change his/her mind. Mitch McConnell is a great politician. (So is George Romney but that is a subject for another day.) Mitch McConnell’s acknowledgement that he has been wrong for more than 20 years was made without reference to his earlier positions. It was made when he gave a speech to the American Enterprise Institute on June 15th. It showed how a mature and thoughtful senator had come to see the error of his earlier ways. It all had to do with a piece of legislation introduced in 2010 convolutedly known as “Democracy is Strengthened by Casting Light on Spending in Elections Act” or in a less tortured form, the “Disclose Act.”
The Act would require groups that are self-identified as “social welfare organizations” that spend $10,000 or more on election related ads, to report the expenditures and would require the groups to disclose the names of donors who give them more than $10,000. As matters now stand, donors can anonymously give unlimited amounts to those organizations that, in turn, buy advertising that pertains to the campaigns but is not coordinated with them. Had it not been for Mr. McConnell’s speech you would have thought he would enthusiastically support such legislation.
The Disclose Act was, in some respects, not unlike a bill he and Senator Harry Reid, co-sponsored in 1989. That bill, according to an editorial in the Lexington-Herald Ledger, “would have required disclosure of independent groups or individuals who intended to spend more than $25,000 promoting or attacking a candidate.” According to the paper’s editorial that was only one of many times Mr. McConnell spoke out in favor of openness in campaigns. In 1990, the editorial said, he “pledged to introduce a bill that would require full disclosure of donors to multi-candidate political-action committees.” In 1996 he supported public disclosure of all election-related spending by independent groups and contributions to political parties. He wrote a piece for the paper in which he said, “Public disclosure of campaign contributions and spending should be expedited so voters can judge for themselves what is appropriate.”
Based on the foregoing it was a foregone conclusion that Mr. Mitchell would enthusiastically support, at a bare minimum, the provisions of the Act that says “super PACS” must disclose the identity of any donors who contribute more than $10,000 to them and also says any group that spends $10,000 or more on election ads must report that expenditure to the Federal Election Commission within 24 hours. That provision sounds remarkably like the 1989 bill Mr. Mitchell co-sponsored with Harry Reid.
Mr. McConnell is now a different person and, as a result, his views are different. He now believes that secrecy is what makes a democracy work. Openness flies in the face of the 1st Amendment to the United States Constitution that guarantees freedom of speech. People who are forced to be identified when they exercise their right to free speech may be afraid to speak, he believes. He thinks that a person who wants to contribute $10 million to a super-PAC in order to get his speech out to the public should be able to do so secretly so as to avoid being criticized. Mr. McConnell does not think he has changed his position for political expediency.
In his speech to the American Enterprise Institute Mr. McConnell discussed the threat to the 1st Amendment that was posed by the Disclose Act but said: “Throughout my career I, too, have consistently called for full and timely disclosure of all contributions to candidates and parties.” What he made plain, however, was that people who want to contribute to social welfare organizations that participate in the campaign through ads they run are entitled to remain anonymous. Asked about Justice Scalia’s comment in a recent case that “Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed” Mr. McConnell said he disagreed with Justice Scalia. He said that the names of those contributing to campaigns or candidates must be disclosed but of those who contribute through the backdoor by giving to super-PACS, he does not think civic courage should be required. He said: “I don’t think regular citizens should have to experience any courage at all to participate in the national debate. I don’t think it ought to be required of regular citizens as a precondition of their involvement in civic discourse.”
In support of his position he quoted Justice Oliver Wendell Holmes who said: “The best test of truth is the power of the thought itself to get accepted in the competition of the market and the best defense of this truth is still found in the sweeping command that Congress shall make no law abridging the freedom of speech.” Justice Holmes did not suggest that anonymous speech was the best test of truth. Mr. Mitchell believes it is. Mr. Mitchell is no Justice Holmes.
Thursday, June 14, 2012
Marijuana and the Law
[A] drug which takes away grief and passion and brings a forgetfulness of all ills.
𗾤Homer, The Iliad
Two events took place in June that suggested a primer on how medical marijuana laws are working in Colorado might be appropriate. The first was an appellate court decision that the state Supreme Court declined to review. The holding was that if an employer has a zero-tolerance drug policy and an employee who uses medical marijuana tests positive and is discharged, the employee is not entitled to unemployment benefits even though the use of medical marijuana is not proscribed by state law.
The second event of note was a newspaper announcement that the Sunday night CBS news program “60 Minutes” had interviewed Stan Garnett, Boulder, Colorado’s District Attorney, with respect to medical marijuana dispensaries operating in Colorado. Since the interview will not be broadcast until fall, an update might help those who wonder what is happening in the world of medical marijuana in Colorado. Although only applicable to Colorado, readers elsewhere can see how the Obama administration has lived up to promises made during the 2008 campaign.
During the 2008 campaign Mr. Obama said, with respect to medical marijuana laws, that if elected: “What I’m not going to be doing is using Justice Department resources to try to circumvent state laws on this issue simply because I want folks to be investigating violent crimes and potential terrorism. “ In February 2009 Attorney General Eric Holder said what the president said during the campaign “is now American policy” and in a subsequent press conference said the policy is to “go after those people who violate both federal and state law. . . .” The administration did not rely on those statements to let people know what official policy was. David Ogden, then the Deputy Attorney General of the United States, put it in writing so everyone would understand.
October 19, 2009, Mr. Ogden, sent a memorandum to the U.S. attorneys in states that authorized the sale and use of medical marijuana. Its stated purpose was to provide “clarification and guidance to federal prosecutors.” Mr. Ogden began by saying: “Congress has determined that marijuana is a dangerous drug, and the illegal distribution and sale of marijuana is a serious crime. . . .” However, he went on to say that “selected U.S. attorneys” to whom he sent his memorandum should “not focus federal resources in your states on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana.” Mr. Ogden and Colorado’s U.S. Attorney, John Walsh, would have been well served had Mr. Ogden stopped there since it was clear what he meant. He didn’t. After explaining the meaning of “clear and unambiguous” as used in his memorandum he went on to say that “no State can authorize violations of federal law” which is, of course, exactly what medical marijuana legislation does. If a U.S. attorney decides to prosecute someone, Mr. Ogden continued, it is not necessary to prove that a state law was violated. The memorandum, he said, does not “’legalize’ marijuana or provide a legal defense to a violation of federal law. . . . Nor does clear and unambiguous compliance with state law . . . provide a legal defense to a violation of the Controlled Substances Act.” He repeats that in the penultimate paragraph of his memorandum saying the memorandum is not intended to preclude investigation “in particular circumstances where investigation or prosecution otherwise serves important federal interests.” The foregoing, as all but the dullest reader can immediately see, is a crystal clear roadmap for U.S. Attorneys who wonder whom to prosecute. And that brings the curious to Colorado and to the even curiouser John Walsh.
Colorado citizens amended their state constitution in 2000 to permit the medical use of marijuana effective June 1, 2001. In 2010 a law was enacted that regulates medical marijuana dispensaries. John Walsh, apparently confused by the Ogden memo, has concluded that he can prosecute those who are in “clear and unambiguous compliance” with Colorado law as stated in the Ogden memorandum. In January, March and May, he sent waves of letters to dispensaries within 1000 feet of schools telling them they must close and describing in great detail the draconian penalties that may be imposed if they do not. Mr. Walsh was not concerned about whether local governments were content to have dispensaries closer than 1000 feet to schools as Colorado law permits .
Mr. Garnett wrote Mr. Walsh in March expressing his opinion that the U.S. Attorney’s office could, instead of going after dispensaries, better use its efforts dealing with “terrorism, serious economic crime, organized crime and serious drug dealing. . . .” In response, Mr. Walsh said in effect, that his views about how far dispensaries should be from schools overrode local governments’ views. He did not say how his actions comported with Mr. Ogden’s memorandum.
What the Colorado court ruled does not run afoul of what Mr. Obama promised during the 2008 campaign. What Mr. Walsh has done, does. That is more than a pity. It is a travesty.
Last week I said that Pope Benedict had made Cardinal Bernard Law the Archpriest of St. Mary Major Basilica in Rome. The appointment was made by Pope John Paul II.
Thursday, June 7, 2012
The Nuns, the Butler and the Pope
Anybody can be pope; the proof of this is that I have
become one.
— Pope John XXIII, Letter to a young boy
He’s two for three. Earlier appearances to the contrary notwithstanding, there are things that can really upset Pope Benedict. Abuse of children isn’t one of them. Nuns and press commentary on perceived internecine warfare are. Benedict’s indifference to tales of sexual abuse is well known. Cardinal Bernard Law serves to make the point.
Cardinal Law was Archbishop of Boston from 1984 to 2002. During his tenure many priests under his supervision engaged in inappropriate conduct with children. Although told of the abuse, he did not act on the information. In December 2002 he tendered his resignation as Cardinal and moved out of the $20 million church-owned house in which he had been humbly living, as befitted a man of the cloth. The house was sold to help pay for the judgments entered against his diocese because of the sexual abuse. Two years later the Pope appointed him Archpriest of St. Mary Major Basilica, one of the four most important basilicas in Rome where he was in charge of the administration of the priests and anything related to the basilica. As archpriest he reportedly receives a monthly stipend of about 4,000 Euros a month, an amount that permits him to walk humbly with his God yet live fairly well. Upon learning of the transfer, Mitchell Garabedian, a Boston lawyer who represented more than 130 victims of sexual abuse by priests under Cardinal Law’s supervision, said: “The Vatican either doesn’t understand the problem of clergy sex abuse, or it doesn’t care.” No one will say that about the most recent events. The Pope clearly cares. One involves his administration and one involves nuns.
In January 2012 documents were leaked to the press (perhaps by the Pope’s butler) that disclose, among other things, power struggles over management of the Vatican Bank and corruption in the awarding of contracts that cost the Vatican millions of Euros. Responding to the leaks Benedict showed himself to be sufficiently concerned that he appointed a commission of cardinals to investigate the leaks but also saw fit to blame the media for the scandal. At the end of his general audience on May 31 he said: “Nonetheless there has been increasing conjecture, amplified by the communications media, which is entirely gratuitous, goes beyond the facts and presents a completely unrealistic image of the Holy See.” Even more upsetting to Benedict than the media’s portrayal of the Vatican corruption was the outlandish behavior of some renegade nuns in the United States.
In April 2012 it was announced that the Vatican had begun a crackdown on the Leadership Conference of Women Religious (LCWR), an organization for nuns that represents about 80 per cent of the 57,000 nuns in the United States. According to a statement that was issued by the Vatican’s “Congregation for the Doctrine of the Faith”(CDF) following a two-year investigation, nuns in the LCWR have “focused their efforts on serving the poor and disenfranchised, while remaining virtually silent on issues the church considers great societal evils: abortion and same-sex marriage.” The nuns also sponsored speakers who “often contradict or ignore” church teaching and never revoked a 1977 position statement that questioned the male-only priesthood.
LCWR’s shortcomings will be addressed by a group of men led by Seattle Archbishop Peter Sartain who will spend five years overhauling LCWR’s governance and will review “its plans and programs and its relationship with certain groups that the Vatican finds suspect.” The men will revise the statutes of the organization, vet the speakers and publications and address the fact that LCWR has issued public statements that “disagree with or challenge positions taken by the bishops [men], who are the church’s authentic teachers of faith and morals. . . .” Nuns in LCWR were not the only women whose shortcomings the men in the CDF have identified. Sister Margaret Farley and her writing is another.
Sister Farley is a past president of The Catholic Theological Society of America and an emeritus professor of Christian ethics at Yale Divinity School. In 2006 she wrote a book on sexuality that the Vatican’s doctrinal office got around to reading in 2010 at which point it let her know of its disapproval, saying her book had “been a cause of confusion among the faithful.” It was so upsetting to the men in the CDF that they took two more years to review the book, not out of prurient interest (although the New York Times says they quoted liberally from its racier passages) but out of a desire to be thorough. At the conclusion of their study in December 2011 they issued a report that said Sister Farley had a “defective understanding” of Catholic theology. In March 2012 Benedict approved their report and on June 4, 2012 a formal censure of the book was delivered saying it was “not consistent with authentic Catholic theology.”
One can be sure that the nuns are grateful for the enlightened guidance the men in the Vatican have given them. The fact that they need the guidance is ample evidence, if evidence were needed, why women are not admitted to the priesthood.