Back in 1912, the voters of Montana passed a law that barred corporations from direct contributions to political candidates when mining czar W.A. Clark bought himself a seat in the U.S. Senate. That law was overturned in 2010 when the US Supreme Court declared that granted corporations the same 1st Amendment rights as citizens and allowed businesses to freely spend their way into the nation’s political debates. Being single minded Westerners, the Montana Supreme Court has challenged Citizens United by upholding the state’s century old law that limits corporate contributions:

In a 5-2 opinion, the Montana court’s majority concluded that the state’s long history of well-funded natural resource extractors, small population and historically inexpensive political campaigns allow it to demonstrate compelling government interest in regulating corporate financial muscle. Even one of the justices who dissented – saying that the U.S. Supreme Court left no room for states to exempt themselves – argued forcefully against the broad corporate latitude encompassed in the Citizens United decision.

“Corporations are not persons. Human beings are persons, and it is an affront to the inviolable dignity of our species that courts have created a legal fiction which forces people – human beings – to share fundamental, natural rights with soulless creatures of government,” Justice James C. Nelson wrote in his reluctant dissent.

“Worse still, while corporations and human beings share many of the same rights under the law, they clearly are not bound equally to the same codes of good conduct, decency and morality, and they are not held equally accountable for their sins. Indeed, it is truly ironic that the death penalty and hell are reserved only to natural persons,” he wrote.

(emphasis mine)

Clearly, Citizens United is uniting people who oppose the solidification of the corporate take over of the government. In December, Sen. Bernie Sanders (I-VT) introduced a constitutional amendment, S.J.Res.33 (pdf), that would strip corporations of the same constitutional rights as persons, subject them to regulation, bar them from making campaign contributions and grant Congress the power to regulate campaign finance. There are now four different constitutional amendments to the U.S. House and Senate seeking to overturn the Citizens United ruling.

In Los Angeles, CA, the city council unanimously passed a non-binding resolution in support of such an amendment.

Then, in one of their first acts of the New Year, the New York City Council passed a resolution calling on congress pass an amendment overturning Citizens United v. Federal Election Commission. Oakland, CA; Albany, NY; Missoula, MO; Boulder, CO and South Miami, FL have all passed similar resolutions.

The Montana decision, which applies only to state elections, is important because it sets the path for the return of the issue to the US Supreme Court, while we wait to see if a constitutional amendment can be passed.

Greg Sargent at the Washington Post reports:

Obama is set to appoint Sharon Block, Terence Flynn, and Richard Grifin to the board – something unions have made a big priority for them in the new year. Senate Republicans have opposed the recess appointments to the NLRB on constitutional grounds, but unions charge that Republicans are only interested in rendering the agency inoperative.

Obama’s move, which will help energize unions in advance of the 2012 election, is yet another sign that he is determined to circumvent GOP opposition and make government functional again by any means necessary. It’s another sign that the White House and Dems have abanoned the illusion that anything can be done to secure bipartisan compromise with Republicans on the major items on Obama’s agenda.

From Think Progress:

All 47 Senate Republicans have warned Obama of a “constitutional conflict” should he choose to use his recess appointment powers – authority he is well within his right to use, as ThinkProgress’ Ian Millhiser noted yesterday – but it was Chief Justice John Roberts, a noted conservative, who said the president should make recess appointments to keep the NLRB functioning, as ThinkProgress reported in 2010.

Obama’s appointment of Block, Flynn, and Griffin is important, too, because it boosts the board’s membership to five, protecting its quorum even if member Brian Hayes follows through on his threats to quit. Preserving its right to quorum ensures that its rulings will not be thrown out on legal challenges, as more than 600 cases were by the Roberts Court in 2010.

It was announced by the White House that President Barack Obama will make a recess appointment of former Attorney General of Ohio, Richard Cordray to head the newly created Consumer Financial Protection Bureau (CFPB):

President Barack Obama installed Richard Cordray as head of the Consumer Financial Protection Bureau with a recess appointment today, testing the limits of his executive authority to fill the post without Senate approval.

Obama nominated Cordray to be the bureau’s first director in July, almost one year after enactment of the Dodd-Frank financial regulatory law creating the agency. Republicans blocked Cordray’s confirmation by the Senate last month. Putting him in the job today may set up an election-year court fight between the White House and Congress.

Even thought the Senate has been under Democratic control since 2006 when the tactic of pro forma session was first employed to keep President George W. Bush from making recess appointments to the bench, there have been questions by legal scholars about the constitutionality about their use. It has since been used to placate the Republicans in hopes of winning their cooperation, obviously to no avail.

Senate Majority Leader Mitch McConnell (R-KY) called President Obama move “arrogant”, saying that “Breaking from this precedent lands this appointee in uncertain legal territory, threatens the confirmation process and fundamentally endangers the Congress’s role in providing a check on the excesses of the executive branch.”

House Speaker John Boehner had a similar reaction calling the appointment an “extraordinary and entirely unprecedented power grab” by the president.

The legal precedent for these sessions is on very shaky ground. In a 1993 court case involving the Postal Service Board of Governors, Justice Department lawyers argued in court papers that presidents can make recess appointments when the Senate is out of session for more than three days.

The brief suggested that a president might lack that authority during shorter breaks. Pointing to the constitutional requirement that the Senate and House get one another’s consent before adjourning for more than three days, the Justice Department said the constitutional framers might not have considered shorter recesses to be significant.

“If the recess here were of three days or less, a closer question would be presented,” the Justice Department argued.

However, lawyers who advised President George W. Bush on recess appointments wrote that the Senate “cannot use sham ‘pro forma’ sessions to prevent the president from exercising a constitutional power.”

David Dayen at FDL points out the Constitutional argument that there is no time requirement in the Constitution for Congress to be in recess before the president can make recess appointments:

As for the judicial question on whether pro forma sessions count as keeping Congress in session, the 11th Circuit Court of Appeals ruled back in 2007 that “The Constitution, on its face, does not establish a minimum time that an authorized break in the Senate must last to give legal force to the President’s appointment power under the Recess Appointments Clause.” On the other side of this, Solicitor General Neal Katyal, in a 2010 case, argued that the Administration recognized that a 3-day recess was “too small,” in their understanding, to make appointments.

While the Republicans will very likely mount a court challenge, claiming past precedent, it may well fail since the president has the power to make recess appointments under Article II, Section 2 of the Constitution which states, “the President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” It can be argued that Congress is in recess when they gavel out at the end of each day or whenever there is no quorum, which goes to the constitutional argument about pro forma sessions.

The other issue is why didn’t he appoint Elizabeth Warren who is eminently more qualified than Cordray to head the CFPB? It is most likely because of objections from Treasury Secretary Timothy Geithner’s objections and her memo to the the state attorney general’s who are negotiating a settlement with the big banks over mortgage fraud.

Make no mistake, Obama is doing this now for purely political motivations. It emphases Republican obstructionism and as a ploy to win back the disenfranchised left wing of the Democratic Party, as well as, the Independent voters who believed in all his “hopey, changey” campaign rhetoric.

“Punting the Pundits” is an Open Thread. It is a selection of editorials and opinions from around the news medium and the internet blogs. The intent is to provide a forum for your reactions and opinions, not just to the opinions presented, but to what ever you find important.

Thanks to ek hornbeck, click on the link and you can access all the past “Punting the Pundits”.

Katrina vanden Heuvel: Voting Rights, Super PACs and the Media Cloud the Election

Does Iowa matter? Maybe, maybe not. From the round-the-clock polling analysis, detailed delegate projections, and tweeting and retweeting, you’d think the political press corps was readying for the first leg of the Triple Crown. My advice for Tuesday and in the weeks to come: Don’t let the giddiness of the coverage distract from what will matter far more than whether Michele Bachmann beats Rick Perry for the fifth-place slot.

Instead, pay attention to three issues that could affect the outcome of the election, even though they have nothing to do with the campaigns themselves:

First, a surge in voting restrictions [..]

Second, the rise of super PAC spending [..]

Third, the media’s obsession with false equivalence: How the election is covered will almost certainly have a measurable impact on its outcome.

Dean Baker: Climate Change – Our Real Bequest to Future Generations

Deficit hawks try to scare us about the debt we’re leaving. That’s economic nonsense – unlike the costs of global warming

It is remarkable how efforts to reduce the government deficit/debt are often portrayed as a generational issue, while efforts to reduce global warming are almost never framed in this way. This contrast is striking because the issues involved in reducing the deficit or debt have little direct relevance to distribution between generations, whereas global warming is almost entirely a question of distribution between generations.

Seeing the debt as an issue between generations is wrong in almost every dimension. The idea that future generations will somehow be stuck with some huge tab in the form of the national debt suffers from the simple logical problem that we are all going to die. At some point, everyone who owns the debt being issued today, or over the next two decades, will be dead. They will have to pass the ownership of the debt to someone else – in other words, their children or grandchildren. This means that the debt is not money that our children and grandchildren will be paying to someone else. It is money that they will be paying to themselves.

This is your morning Open Thread. Pour your favorite beverage and review the past and comment on the future.

Find the past “On This Day in History” here.

January 4 is the fourth day of the year in the Gregorian calendar. There are 361 days remaining until the end of the year (362 in leap years).

On this day in 1987, Spanish guitar great Andres Segovia arrives in the United States for his final American tour. He died four months later in Madrid at the age of 94.

Segovia was hailed for bringing the Spanish guitar from relative obscurity to classical status. Born in Spain’s southern region of Andalusia–the original home of the guitar–Segovia studied the piano and cello as a child but soon became captivated with the guitar. Knowing of no advanced teachers of an instrument that was generally banished to the cafes, he taught himself and in 1909 gave his first public performance at the age of 15. To successfully render classical material, Segovia invented countless new techniques for the guitar, and by his first appearance in Paris in 1924, he was a virtuoso. His American debut came four years later in New York City.

The pro forma congressional session that are being used to prevent President Obama from making recess appointments has been much discussed here and at other sites like FireDogLake and Talking Points Memo. It has also been argued by Constitutional scholars that they are little more “than a game of separation-of-powers chicken”. They have been used to keep the president from filling vacancies in the courts and in his administration that are vital to the operation of the government. These sessions and the president’s reluctance to challenge their constitutional legality has kept Elizabeth Warren from being appointed to head the new Consumer Financial Protection Bureau and a Nobel winning economist, Richard Diamond from a seat on the Federal Reserve.

Once a the president missed an opportunity to put an end to Republican obstruction and make important appointments, like Richard Cordray to the CFPB and the vacancies on the National Labor Relations Board. President Obama has a number of options available under the Constitution to bypass congress and make these appointments, as  David Dayen at FDL News Deskpoint out:

During the recess, the President has a number of opportunities to make recess appointments. He could simply determine that the pro forma sessions being used to keep Congress active were insufficient to prevent recess appointments. He could use his Constitutional power to adjourn Congress. But both of those would fly in the face of recent precedent (Presidents have generally respected the pro forma process, and no President has actually used the adjournment power.)

The one option with Presidential precedent behind it was the “Roosevelt precedent.” Congress simply has to adjourn for a short period, a split second really, to shift from the first session of the 112th Congress to the second session. In that window, Theodore Roosevelt made hundreds of recess appointments previously.

Victor Williams, Assistant Professor at the Catholic University of America School of Law and an attorney, writing in the Huffington Post last week urged Obama to put an end to the “myth” that an official congressional recess lasts three days or more and the Republicans’ de facto “nullification” of government:

As the 112th Senate left for its break, Minority Leader Mitch McConnell unsuccessfully attempted to wrangle a recess concession from Obama. McConnell demanded that Obama promise not to sign any recess commissions during the holidays. McConnell blocked a confirmation vote for 50 officials when Obama ignored the Article II, Section 2 shake down.

Adding insult to constitutional injury, congressional Republicans again manipulated the Senate into scheduling 10 pro-forma sessions — intending to interfere with Obama’s recess appointment authority. (As I argued in recent Jurist commentary, in prior posts, and a National Law Journal opinion, the sessions do not prevent the Executive from signing recess commissions.)

Prof. Williams goes on, laying out all the president’s options urging him that the better option would be to invoke Article II, Section 2 which states, “the President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session,” after the start of the new session of the 112th Congress which began today at 12:01 PM EST:

Recess commissions signed before the end of the 112th Senate’s first session — Jan. 3, 2012 at 12 p.m. — last through 2012. However, recess commissions better-timed to be signed instantly at noon (or anytime after the second session formally begins) last through 2013. The officials could then be re-recess appointed during Obama’s second term.

In a time and place of his choosing, Barack Obama should use the Article II, Section 2 recess appointment alternative. President Obama should concurrently renounce the three day recess myth underlying Senate pro forma sessions announcing a simple test: If the Senate is not sitting as a deliberative body able to provide timely confirmation consent, the Executive may fill any vacant federal office.

But according to Brian Buetler at TPM, legal experts believe that today was the last opportunity for Obama to use the “Roosevelt precedent”:

Today was the day that legal experts and many aides in both parties thought President Obama would provide a recess appointment to Richard Cordray, his nominee to administer the new Consumer Financial Protection Bureau […]

But a senior administration official who would not be quoted told reporters at a White House background briefing Tuesday that Obama will not take advantage of that opening.

The official declined to provide further explanation, but the decision implies one of three things: that Obama does not believe he’s encumbered by technical restrictions on his power to recess appoint nominees and can still act between now and late January when Senators return to town; that he will instead wait until a future recess when feels he has more running room and political capital to recess appoint Cordray and others; or that he has no intention of challenging Congressional Republicans by making further recess appointments between now and the end of this Congress.

So by not taking advantage of the ‘Roosevelt precedent”, will Obama go where no president has gone before and invoke Article II, Section 2? Or will he continue on the more predictable path of allowing the minority in the Senate to obstruct his agenda?

I’m opting for the latter. Fool me, Barry.

“Punting the Pundits” is an Open Thread. It is a selection of editorials and opinions from around the news medium and the internet blogs. The intent is to provide a forum for your reactions and opinions, not just to the opinions presented, but to what ever you find important.

Thanks to ek hornbeck, click on the link and you can access all the past “Punting the Pundits”.

Jonathan Turley: The NDAA’s Historic Assault on American Liberty

By signing into law the NDAA, the president has awarded the military extraordinary powers to detain US citizens without trial

President Barack Obama rang in the New Year by signing the NDAA law with its provision allowing him to indefinitely detain citizens. It was a symbolic moment, to say the least. With Americans distracted with drinking and celebrating, Obama signed one of the greatest rollbacks of civil liberties in the history of our country … and citizens partied in unwitting bliss into the New Year.

Ironically, in addition to breaking his promise not to sign the law, Obama broke his promise on signing statements and attached a statement that he really does not want to detain citizens indefinitely (see the text of the statement here).

Obama insisted that he signed the bill simply to keep funding for the troops. It was a continuation of the dishonest treatment of the issue by the White House since the law first came to light. As discussed earlier, the White House told citizens that the president would not sign the NDAA because of the provision. That spin ended after sponsor Senator Carl Levin (Democrat, Michigan) went to the floor and disclosed that it was the White House and insisted that there be no exception for citizens in the indefinite detention provision.

Jim Hightower: Shoveling America’s Wealth to the Top

As an old country saying puts it, “Money is like manure – it does no good unless you spread it around.”

Yet America’s corporate and political leaders have intentionally been shoveling wealth into an ever-bigger pile for those at the top. They’ve gotten away with this by lying to the great majority, which has seen its share of America’s prosperity steadily disappear. Yes, they’ve told us, the rich are getting richer, but that’s just the natural workings of the new global economy, in which financial elites are rewarded for their exceptional talents, innovation, and bold risk-taking.

This is your morning Open Thread. Pour your favorite beverage and review the past and comment on the future.

Find the past “On This Day in History” here.

January 3 is the third day of the year in the Gregorian calendar. There are 362 days remaining until the end of the year (363 in leap years). The Perihelion, the point in the year when the Earth is closest to the Sun, occurs around this date.

On this day in 1938, The March of Dimes is established by President Franklin D. Roosevelt.

March of Dimes is an American health charity whose mission is to improve the health of babies by preventing birth defects, premature birth, and infant mortality.

Polio was one of the most dreaded illnesses of the 20th century, and killed or paralyzed thousands of Americans during the first half of the 20th century. In response, President Franklin D. Roosevelt founded the March of Dimes as the National Foundation for Infantile Paralysis on January 3, 1938. Roosevelt himself was paralyzed with what at the time was believed to be polio, though recent examination has led some to suggest that this diagnosis might have been mistaken. The original purpose of the Foundation was to raise money for polio research and to care for those afflicted with the disease. The name emphasized the national, nonpartisan, and public nature of the new organization, as opposed to private foundations established by wealthy families. The effort began with a radio appeal, asking everyone in the nation to contribute a dime (ten cents) to fight polio.

“March of Dimes” was originally the name of the annual fundraising event held in January by the Foundation. The name “March of Dimes” for the fundraising campaign was coined by entertainer Eddie Cantor as a play on the popular newsreel feature of the day, The March of Time. Along with Cantor, many prominent Hollywood, Broadway, radio, and television stars served as promoters of the charity. When Roosevelt died in office in 1945, he was commemorated by placing his portrait on the dime. Coincidentally, this was the only coin in wide circulation which had a purely allegorical figure (Liberty) on the obverse. To put Roosevelt on any other coin would have required displacing a president or founding father.

Over the years, the name “March of Dimes” became synonymous with that of the charity and was officially adopted in 1979.

“Punting the Pundits” is an Open Thread. It is a selection of editorials and opinions from around the news medium and the internet blogs. The intent is to provide a forum for your reactions and opinions, not just to the opinions presented, but to what ever you find important.

Thanks to ek hornbeck, click on the link and you can access all the past “Punting the Pundits”.

New York Times Editorial: Where the Real Jobs Are

The Republicans believe they have President Obama in a box: either he approves a controversial Canadian oil pipeline or they accuse him of depriving the nation of jobs. Mr. Obama can and should push back hard.

This is precisely the moment for him to argue the case for alternative fuel sources and clean energy jobs – and to lambaste the Republicans for doubling down on conventional fuels while ceding a $5 trillion global clean technology market (and the jobs that go with it) to more aggressive competitors like China and Germany.

Ben Adler: The Handful of White People Who Choose Your Presidential Candidates

On a two-day trip to New Hampshire last week I attended three campaign events with a total of roughly 600 people. I tried to find an African-American in the audience at all three events, but I couldn’t. To be fair, I did spot two Latinos and five or six Asian-Americans. The U.S., according to the 2010 census is 72.4 percent white. The first two states vote in the presidential primaries, Iowa and New Hampshire, are 91.3 percent white and 93.9 percent white, respectively.

The Iowa caucuses, which will be dramatically covered by the news media on Tuesday, are especially pernicious. In a caucus instead of a primary the Iowans who get to participate are even smaller in number and less diverse than the state’s already unrepresentative electorate.

This is your morning Open Thread. Pour your favorite beverage and review the past and comment on the future.

Find the past “On This Day in History” here.

January 2 is the second day of the year in the Gregorian calendar. There are 363 days remaining until the end of the year (364 in leap years).

On this day in 1962, the folk group The Weavers are banned by NBC after refusing to sign a loyalty oath.

The Weavers, one of the most significant popular-music groups of the postwar era, saw their career nearly destroyed during the Red Scare of the early 1950s. Even with anti-communist fervor in decline by the early 1960s, the Weavers’ leftist politics were used against them as late as January 2, 1962, when the group’s appearance on The Jack Paar Show was cancelled over their refusal to sign an oath of political loyalty.

The importance of the Weavers to the folk revival of the late 1950s cannot be overstated. Without the group that Pete Seeger founded with Lee Hays in Greenwich Village in 1948, there would likely be no Bob Dylan, not to mention no Kingston Trio or Peter, Paul and Mary. The Weavers helped spark a tremendous resurgence in interest in American folk traditions and folk songs when they burst onto the popular scene with “Goodnight Irene,” a #1 record for 13 weeks in the summer and fall of 1950. The Weavers sold millions of copies of innocent, beautiful and utterly apolitical records like “Midnight Special” and “On Top of Old Smoky” that year.