The Catalan Self-Determination Act: A New Legal Order in Europe, José Luis Martí

Later than I actually predicted, in the night of September 6, the Parliament of Catalonia, with its secessionist majority, finally passed the Self-Determination Referendum Act 19/2017. And it made no changes to the text of the draft bill I analysed in my previous post. The parliamentary debate – despite being drastically shortened as the bill was only set on the agenda on the morning of the day itself – was very tense and bitter, even nasty at some point, and, of course, highly divided. Out of the 135 seats, the Act was approved with 72 votes in favour (all coming from the secessionist parties PDeCAT, ERC and CUP) and 11 abstentions (from the members of CSQP, the leftist party that controls the city government of Barcelona). The other 52 votes were not casted, since all members of the opposition parties (the Socialist Catalan Party, the Popular Party, and Ciutadans de Catalunya) abandoned the chamber before the vote took place as a sign of protest and rejection.

The members of the opposition parties claimed not only the unconstitutionality of the bill, but also the violation of their personal parliamentary prerogatives. The secessionist majority rejected to follow the compulsory procedure of ex-ante consultative judicial review of unconstitutionality before the Catalan Court of Statutory Guarantees. And the group of independent lawyers assisting the MPs with legal procedures in the Parliamentary Legal Counsel warned that several decisions made by the Parliament’s Bureau, as well as the passage of the bill itself, might violate the Spanish Constitution, the Catalan Estatut (the equivalent to a Catalan regional Constitution), and the procedural rules of the Parliament. For that reason, and for the first time in the history of modern Catalan democracy, they refused to assist the MPs in the legislative procedure, as they did not want to be complicit in an open act of disobedience. However, according to the response of the secessionist majority, exceptional times called for exceptional means and, therefore, the parliamentary rules of procedure designed to operate in normal times were to be overcome.

Yes, the violation of procedural rules – especially when compromising minority rights -, the unconstitutionality of the Act itself and the boldness of the secessionist who are fully aware of both, are serious issues. But the crucial point, in my opinion, that renders all of this just a bunch of minor details, is a different one: the Act is a direct constitutional and institutional break-up – what I call a constitutional coup d’état – and it virtually creates a new legal order in Europe.

The Passage of the Legal Transition and Foundational Act

Before analysing this from the point of view of constitutional and legal theory, let me add another relevant fact: one day later, another bill was passed at a very late hour, namely the Catalan Legal Transition and Foundational Act 20/2017. Again, the draft was not scheduled in the agenda until the morning of September 7. Again, the parliamentary debate was therefore shortened albeit being very tense and bitter. And again, the bill was passed with 71 votes in favour and 10 abstentions, while the opposition abandoned the chamber and claimed the violation of their rights.

The Act 20/2017 has been widely qualified as a Transitional Constitution for Catalonia. Its purpose is to introduce provisional rules to govern the transition process towards the Catalan Republic in case of an affirmative outcome of the referendum. These rules include, inter alia, the continued yet temporary validity of parts of the Spanish legal system in an independent Catalonia, the governance of the future constitution-making process, and central aspects of the would-be future Catalan Constitution, such as the designation of the Catalan people, their fundamental rights and duties, the territorial structure of the Catalan republic and the distribution of powers.

Yes, one might wonder how something can be so fundamental and, at the same time, transitional and preliminary. But this is not the point here. What is again crucial is that the Act 20/2017 constitutes a proto-constitution for an independent Catalonia. It thereby constitutes a direct attack to the Spanish Constitution and an institutional break-up. And this is, as I will argue later, the case even though the entry into force of the Act is conditional upon a positive result of the referendum and the Parliament’s declaration of independence.

First Reactions

The Constitutional Court has temporarily suspended these two Acts, together with a couple of subsequently approved decrees of the Catalan Government. Although the final judgment is expected to declare their unconstitutionality, the Catalan Government and the other secessionist forces already declared the enforcement of these acts. An open act of institutional disobedience.

On the National Day of Catalonia on September 11 (called the Diada), between 500,000 and 1 million people peacefully marched through the city centre of Barcelona advocating the secession and celebrating the referendum. They supported the acts of disobedience already performed and those announced for the future by the Catalan Government and Parliament, as well as by many Catalan mayors. And, thus, this part of the Catalan society openly showed their support of the disobedience by the government and the institutional and constitutional break-up. These protesters can be said to represent the 1.8 or 1.9 million of Catalans who are presumably in favour of secession. But they only constitute less than 40% of the electorate; many among the other 60% of voters in Catalonia follow these events with great concern.

In the last few days, we have seen several actions from both the Catalan secessionist side as well as from the official Spanish side. While many of these latter actions are reasonable in the logic of protecting the Spanish Constitution from the real challenge of the described institutional break-up, there is an increasing perception, even among those who oppose the secession and the referendum, that some authorities are probably going too far. The Spanish Prosecution’s Office initiated to suspend all official advertisements or any other institutional actions supporting the referendum; some Catalan newspapers have been inspected, and a few events – debates and peaceful gatherings – have been banned. Many consider these restrictions as serious threats or violations of the freedom of expression.

A Constitutional Coup d’État

Now, as I previously said, the Acts 19/2017 and 20/2017 both constitute a direct institutional break-up. I qualify it a constitutional coup d’état, in its technical sense. I do not agree with those scholars who see violent or undemocratic means as a condition for a coup d’état. In my opinion, the term merely refers to a significant forceful break-up with the institutional regime, regardless of being physically violent or legitimate or not.

As these two Acts provide for the constitutional, even if only transitional, rules for a Catalan Republic, they intend to create a new legal order in Europe from scratch. This new legal order implies, in turn, the partial collapse of the Spanish constitutional legality. By disobeying all the established procedures of a constitutional reform, it constitutes a constitutional revolution. It redefines the territory of Spain, the Spanish citizenship, the existence of Spanish institutions in Catalonia, and it violates Spanish sovereignty. Thus, it clearly attacks and compromises the Spanish constitutional identity.

The legitimacy of this new legal order is seen in the will of a new sovereign people, the people of Catalonia. And the Catalan Parliament, as the legitimate representative of that new sovereign, is seen to be entitled to pass this new transitional constitution, thus acting de facto as a transitional constitutional assembly. So, in my view, these Acts already effectively presuppose the political independence of Catalonia, i.e. the existence of Catalan sovereignty as different to, and not merely part of, the Spanish sovereignty.

Is This a New Genuine Legal Order in Europe?

We might ask, though, whether this new European legal order is a genuine one. This depends, by and large, on whether it meets the general conditions for the existence of a legal order, as specified by legal theory or jurisprudence. For this purpose, let me refer to Herbert Hart’s rule of recognition: Accordingly, a new legal order is a genuine one insofar as the officials in the given state widely and undisputedly recognise it as such. So in this case, it depends on whether most officials in Catalonia – government members, MPs, high level public servants, judges, commands of the police and other forces, etc. – recognise the laws of that order, and particularly the two Acts under scrutiny, to be legally valid and enforceable, and act in accordance. The Spanish Constitution, however, offers another, historical ‘rule of recognition’: thereafter the only legal order valid on Spanish territory is the one founded by the Spanish constitution. If the Spanish rule of recognition prevails, the two Acts must be declared unconstitutional and totally void; and therefore, they should not be obeyed. But if the new Catalan rule of recognition prevails, the two Acts will constitute a transitional constitution for Catalonia, the Spanish constitution will no longer be applicable in Catalonia as such, and whatever the Spanish Constitutional Court has to say about this will be regarded irrelevant. As Hart himself clearly pointed out, in situations in which two potential rules of recognition compete with each other, legal theorists cannot affirm the existence of any of them. So, the question is: what are the officials in Catalonia actually doing?

It is probably a bit too early to make solid predictions in this regard. But what we have seen this week is that the relevant actors – the Catalan government, the Catalan police, the judiciary and other state institutions in Catalonia – comply with the requirements of the Spanish legal system, and the orders of the Prosecution’s Office, in different ways. And so far, Hart’s rule of recognition does not seem to apply, and accordingly the new Catalan legal order seems to loose the battle.

The Legitimacy of the Constitutional Coup d’État

Our most important concern, however, should not be the one of legal validity, but of legitimacy. Even the secessionists themselves recognise the unconstitutionality of the two Acts. But they claim to be creating a new legal order from scratch. So is it legitimate for the secessionist majority in the Catalan Parliament to pass these two Acts and produce such an institutional break-up that implies a constitutional revolution or coup d’état?

Many scholars argue that a coup d’état against a democratic system can never be legitimate, as long as it doesn’t use those legal means provided for by the system itself (see for instance a very persuasive defence of such view in the recent Philip Pettit’s On the People’s Terms, CUP, 2012). Since Spain has a democratic legitimate system, this view automatically rules out any possibility that this constitutional revolution is legitimate. Generally I sympathize with this view. But let us assume that, under some conditions, a constitutional revolution might be legitimate, even against a democratic, legitimate system. Had the secessionists a popular support of, say, 90% of the electorate in Catalonia, and had the aspirations of such 90% of the people been systematically obliterated in different constitutional mechanisms and procedures with the result of impeding their call for a referendum, I would consider the constitutional coup d’état against the Spanish constitutional system to be democratically legitimate.

But is the actual attack to the Spanish constitution legitimate? I do not think so. First, because the secessionist majority in Parliament does not represent the majority of citizens in Catalonia, since they only acquired 48% of the votes. Second, because the support of the secessionist parties in the last election is not to be equalised with the support of a unilateral, illegal referendum. According to the polls currently available, only 40% of the Catalan voters actually support such an illegal referendum. Third, because the actual consequences of the two Acts (institutional break-up with the Spanish constitution, creation of new legal order, implication of Catalan sovereignty) are too far-reaching considering that the referendum has not even taken place yet, and therefore we do not even know whether the majority of Catalans would even like to secede. And, finally, given that we are not talking about passing an everyday piece of legislation, for which a simple majority would be enough, but of a constitutional revolution against a democratic, legitimate regime, which will produce substantial harm to the rest of Spaniards and the Catalan opponents, a bare majority of 51% would be clearly insufficient. I am not saying that the secession referendum itself should require a larger threshold of positive votes of, say, 60% – although I think it should. But what is under discussion here is not the secession yet, but the procedure to call for a referendum. And I think that the social majority that is required to legitimise a process of constitutional revolution or coup d’état needs to be much, much larger. And since such a supermajority in favour of revolution does not exist in Catalonia, all those who want to have a secession referendum, including myself, must adhere to the legitimate legal means provided for by the Spanish constitution.

A new legal order might emerge in Europe in the next few weeks. And if it does, it will constitute a unique case of revolution or institutional break-up in the history of constitutional law. For that reason, it deserves all the attention from all over the world, and particularly from the other members of the European Union.

(Originally published at Verfassungsblog on Constitutional Matters, on Septmber 17, 2017. See http://verfassungsblog.de/the-catalan-self-determination-referendum-act-a-new-legal-order-in-europe/).

First UK-Latin America Political Philosophy Research Network

We are pleased to announce the set up of the First UK-Latin America Political Philosophy Research Network, which is financed by a British Academy International Partnership grant.

This exciting project will bring together academics from the UCL hub of political theory and political philosophy with scholars working in political philosophy and political theory throughout Latin America.

Currently the ‘UK-Latin America (Analytical) Political Philosophy Network’ links hubs of researchers working in at least three universities in Argentina (Buenos Aires University; Di Tella University) and a university (UNAM) and research institutes in Mexico with political philosophers at University College London, UK. With discussions ongoing with academics in Brazil, Chile, Colombia, and Costa Rica.

Political Philosophy of Economic and Social Human Rights (Progressive Realisation)
The first three years of the project will focus on the political philosophy of human rights, broadly construed. We have an exciting initial programme of network workshops lined up, focusing on the key problem of how to conceptualise the progressive realisation of economic and social human rights in normative/moral terms.

The first workshop will take place in Buenos Aires on the 28, 29 & 30 March 2017 (details to follow soon).

This will consist of a 2-day workshop followed by a PhD student Masterclass with representatives from different network countries.

Future workshops will take place in Mexico City (2018) and London (2019).

The network’s overall mission is to focus on using the methods of Analytical Political Philosophy to arrive at solutions to key problems in political theory and practice.

Colleagues working in human rights theory, and in particular in theories of progressive realisation and core obligations, from an analytical political (and legal) philosophy perspective are welcome to attend the network workshops and to join the Network.

We especially welcome Latin American colleagues who wish to participate in events or join the Network either individually or by creating institutional links, to please contact us using the contact details below.

If you are interested in attending the workshops, please contact:
UCL Institute for Human Rights
Human-rights@ucl.ac.uk

Or you can directly contact Dr Meckled-Garcia for information:
s.meckled-garcia@ucl.ac.uk

PhD Student Masterclass Seminars
We particularly welcome PhD students who wish to participate in the network, in any of the project countries. Doctoral students may attend the workshops by invitation, and are invited to attend the Network PhD Master Class Seminars, subject to numbers. These will take place alongside the project workshops in each of the project countries in 2017, 2018, and 2019. These will be led by academics from each of the cooperating countries.

If you wish to participate, please contact us at the above email addresses.

The project hub coordinators are:
Dr. Saladin Meckled-Garcia (UCL, London, UK), Contact: s.meckled-garcia@ucl.ac.uk
Dr. Julio Montero (Lecturer, Philosophy, Buenos Aires University and Researcher for the National Research Council, Buenos Aires, Argentina), Contact: jmnormandia@gmail.com
Dr. Moises Vaca (UNAM, Mexico City, Mexico), Contact: moisesvacap@gmail.com

But was the Court’s ruling on marriage democratic?, by Stephen Macedo

Never has a revolution in moral and legal judgment occurred so quickly. Only 29 years ago, a conservative majority on the Supreme Court dismissed arguments for the most basic constitutional protections for gay people as, “at best, facetious.” Now, thanks to a new majority on the Court, we have something barely imaginable just a few years ago: a constitutional right to marriage equality.

Yet there is a potential stain on this victory for equal rights. The four justices dissenting from the Court’s historic same-sex marriage decision charge that it is undemocratic. According to Chief Justice John Roberts, the Court is “stealing this issue from the people.” A “judicial Putsch,” Justice Antonin Scalia declares.

The charge of democratic illegitimacy rolls through the four dissents like thunder, and it may resonate widely. Some notable progressive legal thinkers, such as Mark Tushnet and Jeremy Waldron, have long warned that the liberal reliance on judicial review is inconsistent with democracy. Chief Justice Roberts repeatedly quotes Justice Oliver Wendell Holmes’s admonition that the Constitution “is made for people of fundamentally differing views.” “In our democratic republic,” says Roberts, when a sought-after right is not explicitly listed in the constitutional text and people disagree about its merits, the decision to recognize it “should rest with the people acting through their elected representatives.”

Many people may nod in agreement. But the role of the Court in our democracy is more complicated than the Chief Justice lets on. Indeed, the legal authorities that he cites tell a different story. Consider a source that Roberts quotes approvingly for support: John Hart Ely’s influential 1980 book Democracy and Distrust.

Ely, like Roberts, worried that unelected judges risk exceeding their proper role in a democracy when they rely on their own moral judgments in overruling the decisions of elected officials. But Ely also recognized that the Constitution frequently uses broadly worded, abstract language whose interpretation requires value judgments. For example, the Constitution prohibits “cruel and unusual punishments” rather than offering a list of prohibited punishments. We must decide which punishments are cruel. The 14th Amendment commands, “No state shall… deny to any person within its jurisdiction the equal protection of the laws.” We must decide what kinds of unequal treatment or discrimination are constitutionally unacceptable. The answer, as Ely wrote, cannot be found in the specific terms of the Constitution or in “the ruminations of its writers.”

The same is true, Ely noted, of various constitutional provisions protecting individual rights and liberties. Toward the end of the Bill of Rights, the Ninth Amendment refers to other rights “retained by the people” without specifying what they are. The 14th Amendment refers to fundamental “privileges or immunities” that are never listed.

Where can constitutional interpreters look to give meaning to the Constitution’s abstract guarantees of equality and liberty? Chief Justice Roberts says judges must find “neutral principles of constitutional law” that are “deeply rooted” in “history and tradition.” References to “tradition” and to Blackstone, Lord Coke, Magna Carta, and Cicero abound in the dissenting opinions. But, of course, the mere fact that something has been part of our history or tradition is not a reason for endorsing or preserving it. Traditions speak with multiple and conflicting voices. “Whose tradition counts?” asked Ely. And why should we prefer waning traditions to emerging ones?

To require that rights claims must be “deeply rooted” in “history and tradition” is hardly politically “neutral.”
To require that rights claims must be “deeply rooted” in “history and tradition” is hardly politically “neutral.” Rather than providing equal protection, that requirement puts new groups such as gay and lesbian people at a distinct disadvantage. And it gives an undue presumption of legitimacy to forms of ill treatment that are longstanding, such as discrimination against sexual minorities.

Justice Scalia offers what seems to be a simpler formula for discerning or denying fundamental rights: “When the 14th Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases.” Original meaning, end of story.

But when the 14th Amendment was ratified, the House and Senate galleries and the public schools of the District of Columbia were segregated on the basis of race. People then deemed acceptable many forms of racial segregation that we know to be shameful. Why should we limit the meaning of the broad principles of liberty and equality set out in the 14th Amendment to the specific applications that the amendment’s drafters happened to approve—but in their wisdom chose not to enumerate in law?

In making constitutional judgments or devising interpretative rules, none of us, whether we are citizens or judges, can avoid relying on our own best value judgments about how to understand democracy, liberty, equality, and the claims of minorities. There are no “neutral principles” to adjudicate these basic questions of political morality.

The view that the Courts should generally defer to the elected branches is a defensible position. But the four dissenters on same-sex marriage rights have been highly selective in their willingness to defer to elected officials. They have been anything but deferential with respect to laws seeking to regulate the power of money in politics or the easy availability of guns in society, or laws attempting to undo the dire effects of racial injustice in the only way possible: by taking account of race for remedial purposes. And they have not been politically neutral either.

Ely’s account of the role of the courts in a democracy is far better than the ones offered by Roberts and Scalia. Ely argued that we can reconcile judicial review and democracy and give meaning to some of the Constitution’s open-ended language by viewing the founding document as striving to realize and perfect representative democracy. Chief Justice Roberts himself describes democracy in terms of rule by “the people,” which rightly suggests the whole people engaged in a system of collective self-rule. Democracy so understood is “inclusive,” as Justice Ginsburg and others have stressed; it cannot countenance the exclusion or the domination of some by others.

If that sounds a bit “airy-fairy,” as Justice Scalia might say, consider that this is precisely what James Madison meant when, in The Federalist Number 10, he described “majority faction” as the leading vice of popular government. Madison insisted that democratic legitimacy depends upon the protection of minorities against majorities who deny their rights or unfairly discount their interests.

Here then, judicial review finds a rationale and mission. As Ely said, “Courts should protect those who can’t protect themselves politically” because “the duty of representation that lies at the core of our system requires more than a voice and a vote. No matter how open the process, those with most of the votes are in a position to vote themselves advantages at the expense of others, or otherwise to refuse to take their interests into account.” The courts can enhance democracy by undertaking “more stringent scrutiny” of legislation that disadvantages minorities long subject to prejudice and discrimination. Ely took specific note of gays and lesbians: “Homosexuals for years have been victims of both ‘first-degree prejudice’ and subtler forms of exaggerated we-they stereotyping.” Why didn’t the Chief Justice cite Ely on this point?

Justice Kennedy’s analysis in the same-sex marriage case reflects precisely this democracy-reinforcing sensitivity to the interests of a historically “discrete and insular” minority. Kennedy recounts the long history of discrimination and prejudice against gays, and the toll exacted by life in the closet. He is clearly right that continued exclusion from marriage demeans and stigmatizes same-sex couples and their children. And Kennedy, to his great credit, goes beyond Ely by adding a proper appreciation for the equally fundamental importance of individual liberty: a value amply supported by the text and overall design of the Constitution, but which Ely never sufficiently appreciated.

The conservative justices are correct to point to countervailing concerns. The Court’s decision will have subtle and possibly profound effects that cannot altogether be predicted now with any confidence. That is true whenever courts or legislatures significantly alter the law. But Kennedy is right nonetheless to insist on heeding those who brought the case: “The petitioners’ stories make clear the urgency of the issue.” These people have lives to lead, “and for them and their children the childhood years will pass all too soon.” The cost of waiting is that some people’s lives will be lived under a more enduring shadow of injustice.

Chief Justice Roberts observes that the families seeking marriage equality “make strong arguments rooted in social policy and considerations of fairness.” Good for him! But how can he think that a constitution that demands for all citizens the “the equal protection of the laws” is deaf to these families’ pleas for fairness?

Conservatives may respond that they agree with much of the argument I have made, but are, like the Chief Justice, skeptical about judges’ “insight into moral and philosophical issues.” Judges, however, need no special expertise in moral philosophy. What they do need is everyday moral sympathy and judgment of the sort that Justice Kennedy amply displays in his same-sex marriage opinion.

What about the point that Supreme Court justices are unelected and unaccountable? The framers of the Constitution insulated the Supreme Court from direct electoral accountability so that it could render impartial judgments and protect minority rights against political majorities. Life tenure helps insure that the justices need not worry about being thrown out of office for upsetting the powerful. Yet, the Supreme Court is democratically legitimate because the justices are nominated and confirmed by public officials authorized to govern in the name of the people.

Does this mean the Court is unaccountable? By no means: the justices must justify their judgments in reasoned decisions that are published for all the world to pick over and criticize, as we are doing now. The Court is accountable for the quality of its reasoning.

Justice Scalia charges, finally, that the Court is utterly unrepresentative in a way that undermines its ability to be a catalyst for “social transformation.” There is not a single Protestant of any denomination on the bench, he observes, and no genuine Westerner or Southwesterner; the justices are all elite lawyers. He might have added that some justices have served for nearly three decades, barring others with fresher and more diverse perspectives. Those are legitimate concerns. Someday we might take them seriously enough to set term limits for justices.

But meanwhile let us celebrate the good sense of Justice Kennedy and his four colleagues, and the constitutional democracy that made this possible.

(Originally published at the American Prospect and republished here with the author’s permission).

Manifest for a Mexico without crime

To the Mexican Government in all of its orders,

To the civil society and the Mexican people in general

1. The crime committed against more than 43 students of the Escuela Normal Rural Isidro Burgos, in Ayotzinapa, Guerrero, in the past month of September, was a crime against humanity (according to the definition given in Article 7 of the Rome Statute of the International Criminal Court, ratified by Mexico in 2005), committed, sponsored and facilitated by actions and omissions of public officials in the exercise of their capacities —whom were already acting against students from this school for quite some time. This crime unveiled a net of collusions that has prevailed in the state of Guerrero and, to a greater or lesser extent, in the rest of the country, a net in which criminal organizations, governmental authorities of practically all orders, politicians of different political parties, as well as private interests, take part to different degrees.

2. The outrage against such crime has motivated a social movement that is fully justified on all counts: morally, humanely, politically, and legally. Decisive support to this movement by all Mexicans who have a sense of responsibility for their homeland is to be expected. Even though this movement is fueled by a demand stating that this particular crime should be solved and that justice be properly served, it should not be misunderstood as a movement against a single crime but against a generalized state of moral, social, and political decay, capable of breeding crimes of this sort. This movement demands that adequate measures be taken to effectively deal with such generalized situation.

3. The federal government of Mexico and —in relation to their jurisdiction and legal obligations— the other orders of government as well, must assume their responsibility of serving justice and enforcing the law with regards to the crime committed, responsibility that has only been assumed in discourse but not in practice, as the federal government took 10 days in taking the investigations under its jurisdiction and the results after almost two months have been entirely unsatisfactory and even suspicious. Considering this, the government must not only reiterate in official declarations its commitment to the clarification of this crime but also adopt effective measures to solve it.

4. The Mexican government should also assume its responsibility with respect to this state of decomposition, capable of replicating crimes like this in any part of the country, like the more than 15 extrajudicial executions by members of the Mexican army in Tlatlaya, Estado de Mexico, in the past month of June, among many others, and take effective measures to preclude the reproduction of such crimes, as well as the repeated violation of human rights at the hands of public officials in the exercise of their capacities.

5. The Mexican government in its different orders must categorically respect the right to protest of the hundred of thousands of people partaking in the movement generated by the indignation against this crime; it should not repress this movement, as it has regrettably happened in many cases —the most recent one being the arbitrary detention of 11 students in the protests of November 20th in Mexico City. The government should not conflate the intention of these pacific manifestations with the putative intention of destabilizing the country. The distinction between the two is quite clear to identify, especially by the authorities that have as one of their functions the recollection of intelligence. Accordingly, to suggest (as President Peña Nieto did in his discourse of November 18th, after coming back from China) that at some point the two intentions might not be distinguishable, it is in practice a clear encouragement to repress this movement and an anticipated justification for the abuse to come at the hands of the police and military authorities against the population. Instead, the government must state publicly its rejection to all kind of aggressions against this movement, especially those coming from public power.

6. At the same time those who —with the authority that this social movement bestows upon them— organize and lead the protests in demand of justice, should require that their followers do not engage in acts of violence or behavior that could be understood as an invitation to incur in acts of violence, and should demarcate themselves from the violence that has taken place or may take place during such protests. No one desires for there to be violence in Mexico, except for those that do no cherish this country. The violence that breeds from above, either from the political or economical elite, should not be answered back with more violence. Citizens may succeed in their fight only if they assume a radically different stance from those that have horrified the world with their crimes. It is already clear that by harming the rights of others this movement may only let go of support it cannot afford to lose.

7. We propose that the movement concentrates its forces around the following concrete demands:

a) The full and detailed clarification of the crimes committed in Tlatlaya and Ayotzinapa, including and explanation regarding what allowed these atrocities to happen and, of course, the punishment of all the criminals involved directly or indirectly in all orders and modes of participation. Justice should be fully served.

b) Urgent measures should be taken to effectively deal with the social, political and moral decay that has given place to the reign of organized crime (in the broadest possible sense) in the country, measures that may effectively preclude the recurrence of such horrific crimes.

Among these measures we should expect: (i) the establishment of a citizenship-based supervising mechanism that may overlook the candidacies proposed by political parties; (ii) the prompt satisfaction of the recommendation that the UN Working Group on Enforced or Involuntary Disappearances addressed to the Mexican Government in 2011; (iii) the public exhibition, and citinzenship-based supervision, of the guidelines under which members of the police and the military are implicitly or explicitly taught and trained.

c) Urgent measures to fight back impunity, that spreading disease in the country that is the breeding grounds for new crimes. There must be clear signs that the more than 22, 000 cases of disappeared people in the country have priority under the government’s security policy.

d) The commitment from the government to categorically respect the right to protest of the Mexican citizenry, without promoting confusion and direct or indirect invitations to repression. This commitment must include the destitution of the authorities that partake, promote or tolerate unjustified acts of public force. In particular, we demand the immediate release of all the students and people arbitrarily detained in Mexico City during the ‘Global Action for Ayotzinapa’ of November 20th.

For a Mexico without crime —especially without crimes committed by those whose obligation is to protect the Mexican population.

(This manifesto was elaborated by a group of academics based at the Institute for Philosophical Research of UNAM. To suscribe the manifesto, please go to http://www.filosoficas.unam.mx/~sincrimen/).

How to squeeze the political parties, by NYT editorial board

Reince Priebus, the Republican Party chairman, was practically giddy on Wednesday imagining the riches he can squeeze from big private bank accounts as a result of the Supreme Court decision that knocked down yet another campaign finance limit. “We are grateful and we are excited,” he said, explaining that donors will now be able to “max out” in giving to more party committees, at far higher levels than previously allowed.

But actually, it is the big donors who will be squeezing the parties, not the other way around. They now have far more power to dictate terms to politicians, and will soon begin issuing demands to benefit their special interests.

Why? Donors will now have a wide array of choices in where to spend their political dollars, thanks to the Supreme Court. The 2010 Citizens United decision, combined with lower-court rulings, opened the door to giving unlimited amounts of money to “super PACs” and nonprofit political groups, money that was spent on electing and defeating specific candidates. The court’s McCutcheon decision on Wednesday allows donors to give as much as $3.6 million to joint fund-raising committees set up by the parties, which can be used to benefit individual candidates.

That makes the parties players in the big-money race for the first time, since an individual’s contributions to party committees had been limited to $74,600 per election cycle. But the parties will be competing with the super PACs for those six-figure checks, and the check writers know it. For that kind of money, donors expect something beyond a nice table at a fund-raiser and a photo with a party leader. And the parties, which are controlled by the top lawmakers, are in a position to provide it — tax benefits, special clauses in regulatory bills, spending that helps a particular industry.

Donors, of course, have differing needs and demands. Some, like the Koch brothers, seek broad ideological change, knowing that reducing the overall power of government will give their widely scattered industries more freedom and higher profits, unburdened by pesky environmental and financial regulations. Others, like Tom Steyer, a billionaire investor, are more narrowly focused on specific issues, like reducing man-made climate change.

Industries and their executives often have even more closely tailored demands of government, and are willing to pay to make those demands in person. A cable company wants approval of a merger. Wireless companies and broadcasters want pieces of the frequency spectrum. Banks and payday lenders want less regulation and oversight. Medical device makers want to get rid of a tax. All of them spend fortunes on lobbying, and now their executives can dangle the prospect of millions before the parties to get the access they need. (The companies themselves can’t write those checks, but they can give whatever they want to super PACs and nonprofits.)

A memo by Covington & Burling, a legal and lobbying firm, explains to its corporate clients how giving post-McCutcheon will work. “The difference here is that, unlike with super PACs, elected politicians are able to request the contributions directly from the high-net-worth donor,” the firm wrote. The decision will “allow power to collect around any member [of Congress] who can command a national or regional base of wealthy donors, such as a prominent Tea Party or environmental advocate.”

In other words, lawmakers who are the most responsive to special interests and ideologies will reel in the biggest donations to their parties, thereby gaining more power.
Chief Justice John Roberts Jr., showing insincere naïveté, doesn’t consider that purchase of access to be corruption, which he apparently detects only in bribery. But the donors know that American politics is now for sale, and they are ready to buy.

(Publicado originalmente en el New York Times el 3 de abril de 2014).

Supreme Court strikes down overall political donation cap, by Adam Liptak

The Supreme Court on Wednesday continued its abolition of limits on election spending, striking down a decades-old cap on the total amount any individual can contribute to federal candidates in a two-year election cycle.

The ruling, issued near the start of a campaign season, will very likely increase the role money plays in American politics.

The 5-to-4 decision, with the court’s more conservative members in the majority, echoed Citizens United, the 2010 decision that struck down limits on independent campaign spending by corporations and unions.

Wednesday’s decision seemed to alter campaign finance law in subtle but important ways, notably by limiting how the government can justify laws said to restrict the exercise of First Amendment rights in the form of campaign contributions.

The court’s 88-page decision reflected sharply different visions of the meaning of the First Amendment and the role of government in regulating elections, with the majority deeply skeptical of government efforts to control participation in politics, and the minority saying that such oversight was needed to ensure a functioning democracy.

Chief Justice John G. Roberts Jr., writing for four justices in the controlling opinion, said the overall limits could not survive First Amendment scrutiny. “There is no right in our democracy more basic,” he wrote, “than the right to participate in electing our political leaders.”
In a dissent from the bench, Justice Stephen G. Breyer called the majority opinion a disturbing development that raised the overall contribution ceiling to “the number infinity.”

“If the court in Citizens United opened a door,” he said, “today’s decision may well open a floodgate.”
Such oral dissents are rare, and they signal deep disagreements. But Chief Justice Roberts and Justice Breyer noted from the bench that the other side’s arguments were well presented.

Wednesday’s decision did not affect familiar base limits on contributions from individuals to candidates, currently $2,600 per candidate in primary and general elections. But it said that overall limits of $48,600 by individuals every two years for contributions to all federal candidates violated the First Amendment, as did separate aggregate limits on contributions to political party committees, currently $74,600.

In his written opinion, Justice Breyer said Wednesday’s decision would allow “a single individual to contribute millions of dollars to a political party or to a candidate’s campaign.” He was joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.

The ruling, which goes in effect in a matter of weeks, concerned only contributions from individuals. Federal law continues to ban direct contributions by corporations and unions, though they remain free to spend unlimited sums through “super PACs” and similar vehicles.

The case, McCutcheon v. Federal Election Commission, No. 12-536, was brought by Shaun McCutcheon, an Alabama businessman, and the Republican National Committee. Mr. McCutcheon, who had contributed a total of about $33,000 to 16 candidates for federal office in the 2012 election cycle, said he had wanted to give $1,776 each to 12 more but was stopped by the overall cap for individuals. The party committee said it wanted to receive contributions above the legal limit for political committees.

In an interview last fall, Mr. McCutcheon said his goal was to encourage the adoption of conservative principles. “To me,” he said, “being a conservative means smaller government and more freedom.”Chief Justice Roberts said the core purpose of the First Amendment was to protect political speech from government interference, even if many people might welcome it.

“They would be delighted to see fewer television commercials touting a candidate’s accomplishments or disparaging an opponent’s character,” he wrote. “Money in politics may at times seem repugnant to some, but so, too, does much of what the First Amendment vigorously protects. If the First Amendment protects flag burning, funeral protests and Nazi parades — despite the profound offense such spectacles cause — it surely protects political campaign speech despite popular opposition.”

The decision chipped away at the central distinction drawn in Buckley v. Valeo, the court’s seminal 1976 campaign finance decision. Independent spending, the court said in Buckley, is political speech protected by the First Amendment. But contributions may be capped, the court said then, in the name of preventing corruption. The court added in passing that aggregate contribution limits were a “quite modest restraint upon protected political activity” that “serves to prevent evasion” of the base limits.

Chief Justice Roberts said that brief passage on overall limits had to be reconsidered in light of regulatory developments and other factors. But he added that the Buckley decision’s general structure remained intact. “We see no need,” he said, “to revisit Buckley’s distinction between contributions and expenditures.”

The chief justice said that while the $2,600 base limits were also intact, the overall caps placed an unacceptable burden on “an individual’s right to participate in the public debate through political expression and political association.”

“The government may no more restrict how many candidates or causes a donor may support than it may tell a newspaper how many candidates it may endorse,” he wrote.

So is this going to make quid pro quo easier to prove or less so? It is already statistically proven by two top colleges that candidates are…
Leveling the playing field is not an acceptable interest for the government, Chief Justice Roberts said. Nor is “the possibility that an individual who spends large sums may garner ‘influence over or access to’ elected officials or political parties,” he added, quoting Citizens United.

The only acceptable justification, he said, was rooting out “quid pro quo corruption” or the appearance of it.
Justice Breyer said that analysis was too narrow. “The anticorruption interest that drives Congress to regulate campaign contributions is a far broader, more important interest than the plurality acknowledges,” he wrote. “It is an interest in maintaining the integrity of our public governmental institutions.”

“Where enough money calls the tune,” he wrote, “the general public will not be heard.”

The Roberts court has been consistently hostile to campaign finance limits. In a half-dozen earlier cases, the five more conservative justices have voted together, though Chief Justice Roberts and Justice Samuel A. Alito Jr. have sometimes taken a more incremental approach than the bolder one called for by Justices Anthony M. Kennedy, Antonin Scalia and Clarence Thomas.

Wednesday’s decision is likely to increase overall campaign spending, but it may also rechannel some of it away from super PACs and toward candidates and parties.

“The existing aggregate limits may in fact encourage the movement of money away from entities subject to disclosure,” Chief Justice Roberts wrote. “Because individuals’ direct contributions are limited, would-be donors may turn to other avenues for political speech.” He was joined by Justices Alito, Kennedy and Scalia. Justice Thomas wrote a concurring opinion.

The main opinions spent many pages arguing over the possibility that the basic limits could be circumvented without the overall caps. Justice Breyer gave detailed examples, which Chief Justice Roberts dismissed as speculative and highly implausible. The chief justice added that Congress could address some perceived loopholes through earmark requirements, transfer restrictions, segregated accounts and mandated disclosure, though he did not say that those efforts would pass constitutional muster.

Justice Breyer said there was little hope that regulators would vigorously enforce even the existing limits.

More broadly, he said the decision was one “that substitutes judges’ understandings of how the political process works for the understanding of Congress; that fails to recognize the difference between influence resting upon public opinion and influence bought by money alone; that overturns key precedent; that creates huge loopholes in the law; and that undermines, perhaps devastates, what remains of campaign finance reform.”

(Publicado originalmente en el New York Times el 2 de abril de 2014).

How to squeeze the political parties, por el equipo editorial del New York Times

Reince Priebus, the Republican Party chairman, was practically giddy on Wednesday imagining the riches he can squeeze from big private bank accounts as a result of the Supreme Court decision that knocked down yet another campaign finance limit. “We are grateful and we are excited,” he said, explaining that donors will now be able to “max out” in giving to more party committees, at far higher levels than previously allowed.

But actually, it is the big donors who will be squeezing the parties, not the other way around. They now have far more power to dictate terms to politicians, and will soon begin issuing demands to benefit their special interests.

Why? Donors will now have a wide array of choices in where to spend their political dollars, thanks to the Supreme Court. The 2010 Citizens United decision, combined with lower-court rulings, opened the door to giving unlimited amounts of money to “super PACs” and nonprofit political groups, money that was spent on electing and defeating specific candidates. The court’s McCutcheon decision on Wednesday allows donors to give as much as $3.6 million to joint fund-raising committees set up by the parties, which can be used to benefit individual candidates.

That makes the parties players in the big-money race for the first time, since an individual’s contributions to party committees had been limited to $74,600 per election cycle. But the parties will be competing with the super PACs for those six-figure checks, and the check writers know it. For that kind of money, donors expect something beyond a nice table at a fund-raiser and a photo with a party leader. And the parties, which are controlled by the top lawmakers, are in a position to provide it — tax benefits, special clauses in regulatory bills, spending that helps a particular industry.

Donors, of course, have differing needs and demands. Some, like the Koch brothers, seek broad ideological change, knowing that reducing the overall power of government will give their widely scattered industries more freedom and higher profits, unburdened by pesky environmental and financial regulations. Others, like Tom Steyer, a billionaire investor, are more narrowly focused on specific issues, like reducing man-made climate change.

Industries and their executives often have even more closely tailored demands of government, and are willing to pay to make those demands in person. A cable company wants approval of a merger. Wireless companies and broadcasters want pieces of the frequency spectrum. Banks and payday lenders want less regulation and oversight. Medical device makers want to get rid of a tax. All of them spend fortunes on lobbying, and now their executives can dangle the prospect of millions before the parties to get the access they need. (The companies themselves can’t write those checks, but they can give whatever they want to super PACs and nonprofits.)

A memo by Covington & Burling, a legal and lobbying firm, explains to its corporate clients how giving post-McCutcheon will work. “The difference here is that, unlike with super PACs, elected politicians are able to request the contributions directly from the high-net-worth donor,” the firm wrote. The decision will “allow power to collect around any member [of Congress] who can command a national or regional base of wealthy donors, such as a prominent Tea Party or environmental advocate.”

In other words, lawmakers who are the most responsive to special interests and ideologies will reel in the biggest donations to their parties, thereby gaining more power.

Chief Justice John Roberts Jr., showing insincere naïveté, doesn’t consider that purchase of access to be corruption, which he apparently detects only in bribery. But the donors know that American politics is now for sale, and they are ready to buy.

(Publicado originalmente en el New York Times el 3 de abril de 2014).

Supreme Court strikes down overall political donation cap, por Adam Liptak

The Supreme Court on Wednesday continued its abolition of limits on election spending, striking down a decades-old cap on the total amount any individual can contribute to federal candidates in a two-year election cycle.

The ruling, issued near the start of a campaign season, will very likely increase the role money plays in American politics.
The 5-to-4 decision, with the court’s more conservative members in the majority, echoed Citizens United, the 2010 decision that struck down limits on independent campaign spending by corporations and unions.

Wednesday’s decision seemed to alter campaign finance law in subtle but important ways, notably by limiting how the government can justify laws said to restrict the exercise of First Amendment rights in the form of campaign contributions.

The court’s 88-page decision reflected sharply different visions of the meaning of the First Amendment and the role of government in regulating elections, with the majority deeply skeptical of government efforts to control participation in politics, and the minority saying that such oversight was needed to ensure a functioning democracy.

Chief Justice John G. Roberts Jr., writing for four justices in the controlling opinion, said the overall limits could not survive First Amendment scrutiny. “There is no right in our democracy more basic,” he wrote, “than the right to participate in electing our political leaders.”
In a dissent from the bench, Justice Stephen G. Breyer called the majority opinion a disturbing development that raised the overall contribution ceiling to “the number infinity.”

“If the court in Citizens United opened a door,” he said, “today’s decision may well open a floodgate.”

Such oral dissents are rare, and they signal deep disagreements. But Chief Justice Roberts and Justice Breyer noted from the bench that the other side’s arguments were well presented.