A bifurcated tale of two immigration crises in the American media

Open any American newspaper in these last few weeks and one is struck by how immigration stories dominate the front page, but also how the stories are segregated not just by geographical region, but in their framing.  You'd think from the U.S. coverage that refugees are not part of U.S. immigration policy.  Here, according to the GOP hopefuls and the mirroring news coverage, our "immigration problem" is that we have to deal with those pesky. allegedly criminal Mexicans and anchor baby dropping Asians.  Political scientists have long known that the media can play an important role in setting the agenda and shaping public opinion, which is why it is particularly disconcerting that the U.S. media's recent coverage of immigration issues has been bi-modal, either European refugees, or Trump/GOP/undocumented. This, even though the U.S. has been historically and recently held the best record on resettlement of refugees among all nations.

European Union nations are being challenged by a major humanitarian crisis, the largest wave of refugees since World War II are on the move as tens of thousands of people flee the war torn Middle East, mainly exiting Syria, and trying to reach the wealthier European nations.  Each day, there is a new, more tragic report, and accompanying pictures of desperate people trying to get out of their unstable home countries.  This week, a picture of the body of drowned three-year old Aylan Kurdi, a Syrian boy found on a Turkish beach, may have done much to turn the tide of public opinion and jolted European nations into action. (The picture below is from The Guardian of a Turkish solider carrying away the boy's lifeless body.) After months of inertia, Germany has pledged to take in 800,00 refugees, and the UK's Cameron has signaled that his country will accept "thousands more" refugees.

Meanwhile, I could not even find one hard news story in the New York Times or Washington Post which discussed the U.S. government and the refugee crisis in Europe in the same article, in the last few months.  The most recent news article I found was dated April 17, 2015 in the New York Times on the UN's call for more western nations to take in additional Syrian refugees and the U.S. reluctance to do so due to security concerns.  Since that story, that crisis has dramatically escalated, but more stories on U.S. obligations toward refugees have not appeared in either the NYT or the Washington Post --except as op-eds.

Ironically, just 2 days ago on September 1, The Washington Post ran an article mocking Great Brittan for the minuscule number of Syrian refugees they have taken in, saying in the headline, "Brittan takes in so few refugees from Syria they would fit on a subway train."  At least the reporters also noted, "The United States, a country five times the size of Britain, has resettled about 1,500 Syrian refugees, with plans to accept more next year.", but that one sentence of coverage of the U.S. role (or the lack thereof) in the face of a massive international crisis was all that there was.

It seems that Trump and the other GOP contenders are dictating the coverage in the U.S. print media (at least in the WashPo and NYT) of the immigration content, with much of it in recent weeks being devoted to coverage of undocumented immigration, and not even to other aspects of our complex immigration system, such as legal immigration, and non-immigration visa categories.  While both papers have covered the European refugee crisis as well, the lack of content on the U.S. in those very same stories has several consequences.  First, it suggests that the current refugee crisis is a problem over there in Europe, and not our problem to deal with.  Our "immigration problem" is only Mexicans and Asians.  Second, the coverage elides the domestic politics (ably covered by the international press) that have led to the timid U.S. resettlement role. Third, the recent coverage at least ignores the role of the U.S. in precipitating the instability in the region that has led to the present mass exodus of people.

I found the most in depth coverage about the United States, including the fact that now 14 U.S. Senators are calling for the U.S. to resettle more Syrian refugees, in The Guardian which reported that Obama Administration's policy has long been limited to sending mostly financial humanitarian aid overseas and that his administration's view is that long term solution to these kinds of problems "is not resettlement of refugees in the U.S. or else where."  Of particular interest to U.S. readers, The Guardian article addressed explanations of why the U.S. has taken in so few Syrian refugees.  One has to wonder why American papers have not run a similar story even as they have run the same stories tracking the worsening crisis within Europe and among the EU member countries.

Deutche-Welle, a German international broadcaster, also has an excellent article dated August 27 investigating the domestic politics causes of the anemic U.S. role in the current refugee crisis.  The DW article states, "Barack Obama publicly lauded German Chancellor Angela Merkel's European leadership role in the Syrian refugee crisis. But the US president's praise also draws attention to his own country's meager record on the issue."  The article added that the main impediment to a more active U.S. resettlement was a fear that Syrian refugees were security threats to the U.S.

The poignant pictures of human suffering have moved public opinion, which in turn put pressure on European leaders to act.  Even citizens far from Europe have been motivated.  A Facebook page set up by an Icelandic writer has garnered much praise and attention for spurring debate and moving 12,000 Icelanders to offer Syrian refugees either a place to stay or at least messages of compassion or other material support.  As a BBC story reported, it may not sound like much, unless you consider that the total population of Iceland is "not much more than 300,000."  That generous response has also shamed many other nations and individuals. 

Every scholar of U.S. immigration law and policy knows a key component of this policy area includes refugee and asylum policy, but you'd never know that from observing the print media coverage in these two major newspapers in recent months.  Why is the tail wagging the dog?

As this blog post was going live, the NYT posted a story about the failure of the west in the refugee crisis which also detailed the role the U.S. played in causing this catastrophe.  This is exactly the kind of story that is a welcome corrective to the bifurcated coverage I am referring to.  The Washington Postalso has a story about why Europe's refugee problem is also America's problem.

PS: In case anyone wishes to sign, the International Rescue Committee, a well-known refugee relief organization, has set up a White House petition to urge resettlement of more Syrian refugees in the U.S.

GOP primary immigration "innovations" have all US borders covered as of 8/30/15

As I stated in a previous post, the United States has multiple borders, not just the southwestern border.  Thankfully, between the GOP hopefuls, they got this one, especially with the boomlet of end of the week policy innovations.

Donald Trump:  build a wall, repeal birthright citizenship, and mass deportation.  His 6 page plan is here.

Chris Christie (at a NH event):  "At any moment, FedEx can tell you where that package is.  It’s on the truck.  It’s at the station. It’s on the airplane.  Yet we let people come to this country with visas, and the minute they come in, we lose track of them.  We need to have a system that tracks you from the moment you come in. "  The New York Times said, "A FedEx spokeswoman declined to comment on Mr. Christie’s remarks."  I guess the only question is does Christie favor tattooing a bar-code on every immigrant upon arrival as @kalhan has (totally facetiously) suggested, or should we just microchip everyone like our pet dogs and cats?  Because neither of those suggestions could have Fourth Amendment, unreasonable search implications....

Scott Walker:  Since Trump already called dibs on the wall on the Southwestern border, and Christie is addressing the issues of visa overstays with this Fedex plan, Walker decided to deal with the last frontier, the Canadian border.  When asked by Meet the Press' Chuck Todd about the fixation on the southwestern border and the neglect of the northern border, Walker responded, "That is a legitimate issue of us to look at." North, south, and interior.  Check.  Check.  Check. 

Build a wall; they'll still come.

Among the many ill-advised components of Donald Trump's "immigration plan" is his instance on building a wall on the southwestern border with Mexico (Pg. 1-2 of his plan).  Never mind that much of the U.S. Mexico's 1,954 mile U.S.-Mexico border is already fortified and guarded, but pledging to beef up the border with either physical barriers,  more border patrol personnel, or newfangled technology and equipment is a favorite promise by both Democratic and Republican politicians running for public office. And now that Trump has called dibs on a wall on the southwestern border, Scott Walker is talking about a fence on the northern border.

I've beat this dead horse many times, but here I go again: The main reason building a wall is a waste of money  and will be ineffective in curbing undocumented immigration is that there is more than one way into the U.S.  Multiple sources, including the nonpartisan Migration Policy Institute, agree that at least 40% of the undocumented population currently in the U.S. did not enter by surreptitiously crossing the southwestern border,  but instead they arrived on a valid temporary non-immigrant visa (think of tourist,  student, and temporary work visas), overstayed, and didn't go home.  When their visas expired; these people (known as "visa overstays")  became part of the 11 million undocumented population. 

Therefore, fortifying or building a wall and amassing border patrol agents, drones, cameras, and what have you on the southwestern border is tantamount to you (before leaving for work each morning) dutifully double deadbolt locking your front door, securing your back door with a twisty tie from the supermarket, and leaving the roof off of your house. 

The "build a wall" proposal makes no good sense, yet neither Trump nor the dozens of politicians before him who have gone down this well tread path are fools.  As Peter Andreas explained in Border Games--Policing the U.S- Mexico Divide public policies don't actually have to work to have political utility to the proposer.  The move allows the proposer to look tough on undocumented immigration without actually doing much about it.

LGBTQ v Religious Rights?: The 2015 Kurz Chair public event

As the Herbert Kurz Chair in Constitutional Rights at Brooklyn College, I have the opportunity to create public programming for the College community and general public about the possibilities and limits of using the U.S. Constitution to protect politically vulnerable minority groups.  In past years, I have taken on the topics of Stop and Frisk, school desegregation, and last year, immigration reform.  Consistent with past practice, I bring in an outside expert and also tap Brooklyn College's own talented faculty.  This year, I take on the issue of LGBTQ versus religious rights.

LGBTQ vs. Religious rights?

The media casts these rights as in opposition, but is this the only way these issues can be framed?

Having overcome anti-sodomy laws, overturned the military’s Don’t-Ask-Don’t-Tell policy, and achieved marriage equality, the LGBTQ movement is at a crossroads.  Despite the Supreme Court’s recent landmark ruling in Obergefell v Hodges (2015), the marriage equality case, sexual orientation as a category, unlike race, sex, and gender, has not been elevated to a protected class. The consequence is that LGBTQ citizens may still be open to discrimination in employment, housing, adoption, and other areas of public and private life.

At the same time, the United States has a long and proud history of respecting the free exercise of religion.  Are we as a nation prepared to force religious persons to act against their sincere and deeply held religious beliefs and conscience? How do we balance LGBTQ claims to equal treatment against those claiming religious freedom? Are these two sets of claims mutually exclusive?  Is there any way to reconcile them that would be fair or acceptable to both? 

WHO:  Helping us sort through these questions are one visitor and one of Brooklyn College's own.

Steve Sanders of the Indiana University's School of Law, a nationally recognized expert on constitutional law and the legal issues of same sex couples and their families, conflict of laws, federalism, and academic freedom.  He has also argued a case before the Supreme Court.

Paisley Currah, a political scientist and pioneer in the field ofsexuality and gender studies and founding co-editor of TSQ: Transgender Studies Quarterly.  His areas of expertise are in LGBT studies, queer legal theory, public policy, and political theory.  

WHEN:   Monday, October 26, 2015, from 11am -12:30PM  

WHERE:  Woody Tanger Auditorium, inside the Brooklyn College Library (Bldg #13 on the map)

Trump tangles with Jorge Ramos, the Walter Cronkite of Latinos

Yesterday, Trump had Jorge Ramos, the well known anchor of Univision, thrown out of his news conference in Iowa for asking a question out of turn, before letting him back in.  There was probably no better way to further infuriate the Latino population.  Ramos is described by Matthew Dowd, a campaign adviser to George W. Bush, as "not only a journalist",  but "the voice of the Latino constituency.” Dowd asked, "Remember what L.B.J. said, ‘When you lose Walter Cronkite, you’ve lost the war’?”; he believes Ramos has that same influence among Latino viewers.  

You can watch Ramos and Trumps' very testy exchange after Ramos is allowed back in the room.  In the questioning, the two cover three elements of Trump's immigration plan.  I provide 2 sentence summaries here but you should watch the video to hear it in their own words.

1) Birthright citizenship:  Trump believes the birthright citizenship provision can be repealed statutorily through Congress and he is prepared to test that move in Court. He claims great constitutional scholars agree with him.

2) Building a wall on the southwestern border:  Ramos expresses skepticism that a wall can be built.  Trump says it's harder to build a 95 story building and he's been able to do that, so why not a wall.

3) Mass deportation:  Ramos says there is no way Trump can deport 11 million people.  Trump says he will do it "humanely" and shoots back "I have more heart than you do."  He says while "government" would be ineffective and not up to such a monumental task, "management"  which he is adept, could pull it off.

The Hill reports that apparently Ramos got one last question in at the end and Trump signed off by saying.

“Do you know how many Hispanics work for me? Thousands. You know how many Hispanics have worked for me over the years? Tens of thousands.”

Trump ended the Q & A session by telling Ramos, "We’re going to be talking a lot over the years."

A Gallup poll just released this Monday shows Trumps' approval rating among Hispanics now stands at -51 .  By contrast, Hillary Clinton's approval rating is +40.  This recent dust up with Ramos probably didn't help, but then again, Trump is clearly not worried about garnering the support of this constituency.


Jeb! on anchor babies: The Asians are the problem

Jeb! weighed in on the birthright citizenship debate on August 24 by affirming his support for the provision and saying he is against Trump and others' efforts to repeal it.  However, he believes it is unfortunate that Asians are coming to abuse the system.  Hear what he had to say in his own words.

Jeb! was referring to  "birth tourism", an industry which is real, but by no means is it limited to Asians. Why he gratuitously singled out Asians as abusing the system is a gift to the Democratic Party head scratcher.

On August 24th, Pat Egan of NYU was explaining  in the Washington Post that Trump's stand on immigration was hurting the GOP. He wrote that while Obama "trounced Romney" among Latino voters, "The gap was even larger (73-26 percent) among Asian-Americans, who were 3 percent of the electorate. Since most recent immigrants hail overwhelmingly from either Asia or Latin America, campaign weeks like this make it less likely that Republicans will make gains with either group in 2016."

Political Scientists Kuo, Malhotra, and Mo explain that while much has been written about Obama's commanding share of the Latino vote over Romney, his even larger share of the Asian American vote can be explained in part by the solidarity that Asian-Americans felt with Latinos on the immigration issue.  The authors advise:

What can the GOP do to win them [Asian-Americans] back? As long as Republicans appear scornful of minorities, our findings suggest, they will not get Asian Americans’ electoral support. This applies not only to rhetoric, but also to policy issues such as immigration reform. The Republican Party could try to capitalize on divisions between Asian Americans and other minorities, emphasizing how Democratic policies benefit other groups at their expense. But doing that successfully would require a level of political dexterity that Republicans haven’t shown much of late.

It does appear that Jeb! has that political dexterity either. All the pundits keep talking about the damage that is being done to the GOP brand by the Trump anti-immigration talk; it looks the GOP has more than one group to worry about.

What U.S. v Wong Kim Ark actually said about birthright citzenship

There has been a lot of debate about the birthright citizenship clause of the Fourteenth Amendment which reads, "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."  The Supreme Court case U.S. v Wong Kim Ark (1898) is often cited to make the point that the birthright citizenship clause has been applied to non-African American immigrants. But some conservatives dispute whether the case is applicable to the children born to undocumented immigrants.  That argument is a non-starter and there is evidence in Wong Kim Ark and other case law to cast serious doubt upon it. (h/t Professor Kunal Parker)

By no means do all conservatives agree with Trumps' desire to repeal the  birthright citizenship clause. Indeed, one of the most eloquent critics of the repeal of birthright citizenship is Republican and Federalist Society member Margaret Stock, an expert on the subject and the rest of U.S. immigration law.  However, others have taken the tack that Wong Kim Ark was about immigrants legally residing in the U.S. albeit ineligible for citizenship (due to the provisions in the Chinese Exclusion Act) and therefore the Supreme Court has never actually rendered a judgement on whether the birthright citizenship clause covers the children born to undocumented immigrants.  The second related strategy is to question the words "subject to the jurisdiction of" actually applies to undocumented immigrants to argue  since the U.S. never authorized their entry in the first place.  John Eastman, Henry Salvatori Professor of Law and Community Service, at Chapman University’s Fowler School of Law, puts forth such a view in today's New York Times:  

“Subject to the jurisdiction” means more than simply being present in the United States. When the 14th Amendment was being debated in the Senate, Senator Lyman Trumbull, a key figure in its drafting and adoption, stated that “subject to the jurisdiction” of the United States meant not “owing allegiance to anybody else.”

The Supreme Court has never held otherwise. Some advocates for illegal immigrants point to the 1898 case of United States v. Wong Kim Ark, but that case merely held that a child born on U.S. soil to parents who were lawful, permanent (legally, "domiciled") residents was a citizen.

One need only turn to the actual text of Wong Kim Ark to see that Eastman is wrong. The case was about Wong Kim Ark, a U.S. born man of Chinese descent whose parents were legally working and residing in the U.S. but who were also rendered racially ineligible for citizenship under the terms of the Chinese Exclusion Act. Mr. Wong as an adult traveled to China and was returning to the U.S. and denied entry based on the Chinese Exclusion Act.  Wong sued saying he was admissible as a citizen by birth on U.S. soil, the Court agreed.

That Court considered the meaning and legislative history not just of the Fourteenth Amendment, but also of the Civil Rights Act of 1866 that worked in tandem to give newly freed African Americans full citizenship.  The Wong Kim Ark Court stipulated only three exceptions to "subject to the jurisdiction of" and they are:  "with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes." (@693)  The Court was laying out a geographic conceptualization of citizenship in which anyone born within the territorial lines of the nation was to be granted citizenship, barring the already stated exceptions. To erase any confusion, the Court wrote emphatically:

The [Fourteenth] Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States.

There is no exception for the children born to undocumented immigrants.  Full stop.

In fact, the Court went out of it's way in that case to express concern for the fate of the children born to European immigrants if birthright citizenship were not conferred broadly.  It stated:

To hold that the Fourteenth Amendment of the Constitution excludes from citizenship the children, born in the United States, of citizens or subjects of other countries would be to deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage who have always been considered and treated as citizens of the United States.

The irony was the Court's concern in 1898 was for the precarious status of the children of white ethnics.

Even if one is still not convinced of this reading of Wong Kim Ark v U.S., the arrival on the scene of Plyler v Doe (1982) greatly complicates the line of argument that Eastman and his ilk are advancing. Recall that Plyler was the case about the right of undocumented children to access public education in Texas.

As part of the justification for granting these children that right, the Court majority referred to the entirety of the undocumented population in the U.S. as a "permanent caste of undocumented residents" and to undocumented children, the plaintiffs in the case, as " special members of this underclass." (@218-219)

What makes them special, the majority explained was the lack of agency of an undocumented child versus an undocumented adult. The majority stated, "But the children of those illegal entrants are not comparably situated. Their parents have the ability to conform their conduct to societal norms, and presumably the ability to remove themselves from the State's jurisdiction; but the children who are plaintiffs in these cases can affect neither their parents' conduct nor their own status. Even if the State found it expedient to control the conduct of adults by acting against their children, legislation directing the onus of a parent's misconduct against his children does not comport with fundamental conceptions of justice." (@220) Given the Plyler majority's awareness of the limited options of children brought into the country by undocumented parents, it would not be a stretch for members of the Court to show similar concern for mere infants born in the U.S. to undocumented parents.

Setting aside all these inside-baseball doctrinal debates, perhaps the most salient point is that repealing birthright citizenship simply will not curb immigration as I have recently argued in the Washington Post.

Donald Trump doubles down on immigration

A little knowledge is a dangerous thing, but that is exactly what Trump has on immigration.  He may have been shooting from the hip in demonizing Mexicans when he started his campaign, but it is clear that he senses an opportunity and wants to capitalize on the issue.  And as the front runner for now, it means that the other GOP candidates must react to Trump's position. Today, August 16, Trump was on Meet the Press and boldly went well beyond Romney's suggestion of self-deportation, stating that he wishes to repeal Obama's DACA order and deport undocumented immigrants.  He said:

We're going to keep the families together, but they have to go.

What is extraordinary about this quote is that he seems to be suggesting we also deport US citizens since so many immigrant families are of "mixed status" or consisting of US citizens, undocumented, and lawful permanent residents ("greencard" holders) all within the same family. Or perhaps he  perfectly that concept and is going for a "twofer" in practicing what my colleague Corey Robin has termed "Family Values Fascism" in calling for the deportation of the undocumented while insisting on keeping their families intact.

Not to be outdone by his Senate opponents (mainly aiming at Rubio) who previously championed comprehensive immigration reform, Trump today also put out his own  6 page immigration plan. On Twitter, Frank Sharry, a well known immigration activist, called it "Pure Jeff Session-Steve King Ugliness." No doubt Sharry is correct, but it before immigrant advocates tune Trump out, they would be wise to analyze his proposal carefully.  The man, or at least some half-competent advisers, have been at least nominally reading up on immigration.  The whole thing reads of a cynical ploy to shameless appeal to racist, nationalist, populism. 

What makes Trump's proposals dangerous is that there is quite a bit of ignorance of the complicated U.S. immigration system and there is a long tradition of scapegoating immigrants for the nation's ills, especially in times of economic uncertainly.  Trump, with these proposals, has done the usual mixing of fiction with a sprinkling of half truths.  Take for his example his exhortation to build a wall on the southwestern border; it wins for dramatic flair and symbolic effect even though the efficacy is dubious.  But he is not unaware of the 40 percent of visa overstays who contribute to the undocumented population as he is the first candidate, of any party, to explicitly call for an escalation of interior enforcement in addition to building a wall.  (See his proposal to "Triple the number of ICE officers".)

Still, he can't resist returning to the canard that immigrants are predisposed to criminal activity and that argument has some resonance because around the time he made his racist remarks about Mexicans, the Kathryn Steinle murder happened.  Instead of citing more recent and credible evidence, Trump cited a 2011 GAO report enumerating arrests of undocumented immigrants in which not all those data points represented violent crimes.  Meanwhile, Trump, cherry picking his data, ignored a major report exploring the relationship on immigration and criminal activity that showed immigrants are less likely to commit violent crimes and end up behind bars than the native born.  But the Steinle murder and the use of the soundbite of "sanctuary cities" as alleged havens for violent immigrant criminals has meant political pay-dirt for Trump playing to a segment of the population that feels dispossessed not only by a shaky economic recovery, but by a culturally and racially evolving America wrought by immigration.

Looking to divide and conquer, Trump is if nothing, an opportunist.  Perhaps observing Bernie Sanders' stumbles and confrontations with the Black Lives Matters activists, sprinkled throughout Trump's immigration proposal is a new found, purported concern for black Americans and Hispanics and the economic harm that undocumented immigration causes them.  Indeed, the report makes racial and ethnic references to "black Americans", "black teenagers", "Hispanic teenagers", "Hispanic immigrants,", in addition to several references to "middle class Americans"--all of these presumably the "real Americans" he is seeking to protect from the invading hoards of Mexican "drug dealers and rapists"?

Is "Sanctuary Cities" the Willie Horton of 2016 and other observations from last night's GOP debate

Last night, the top 10 polling GOP candidates entered into their first live debate on Fox News.  Thanks in part to Donald Trump, the subject of immigration garnered over 1,400 questions from Facebook and Twitter users in advance of the debate. For those that missed it, the transcript of the debate is here.  Several trends were apparent.

1.    "Sanctuary Cities" in the role of Willie Horton for 2016.  It is clear that Kathryn Steinle's murder will continue to be politicized and put Democrats on the defense.  Republicans have repeatedly invoked the specter of "sanctuary cities" at every opportunity as Jeb! did last night when he said:

We need to be much more strategic on how we deal with border enforcement, border security. We need to eliminate the sanctuary cities in this country. It is ridiculous and tragic…(APPLAUSE)— that people are dying because of the fact that — that local governments are not following the federal law.

The Democrats need to more effectively counter the GOP use of "sanctuary cities" as a soundbite.  The term itself has no legal meaning and is purely political.  But the public has no way of knowing that cities and localities cannot actually "refuse to follow federal law."  The beauty of the "sanctuary cities" soundbite is that it does double duty in eliding major complexities within immigration federalism while tapping into nativist and xenophobic fears of immigrants as criminals, a tired but persistent trope that won't go away despite countervailing evidence.  It is also being deployed at a time when many white ethnics are insecure not just about the economy, but about the cultural and racial changes wrought by immigration--indeed this is the sentiment Donald Trump's inartful rants about Mexicans is channeling. The issue is as complex as this recent explainer shows. Still, Democrats have to come up with a way to more succinctly convey that information to the public because even some liberals are confused about the sanctuary cities bullshit.

2. Assiduous avoidance of what to do with the 11 million. Consistent with the discussion on the "happy hour" debate held at 5pm earlier,  the candidates each pledged their support for securing the border and more enforcement.  Wishing to avoid a Romney "self-deportation" self-inflicted wound, noticeably absent was any discussion of what to do with the 11 million undocumented persons already here in the country.  The only hint is that the candidates have said that benefits would not roll out until the "border is secure", which is akin to saying "I won't marry you until you rectify every flaw in yourself", that is to say, to set out an impossible standard. 

3.  Jeb!'s big flip-flop from "path to citizenship" to "earned legal status".  Many of the candidates have changed their positions on immigration over time like Scott Walker who used to support comprehensive immigration reform but now is all about enforcement, but the whopper flopper award goes to Jeb Bush who in 2012 on the Charlie Rose show said the following: 

You have to deal with this issue. You can’t ignore it. And so, either a path to citizenship, which I would support and that does put me probably out of the mainstream of most conservatives; Or a path to legalization, a path to residency of some kind.

By 2013, in the publication of his book on immigration, Jeb! had again changed his mind and now wants a path to "earned legal status", which means he believes the undocumented should be able to apply for a status that would allow them to become documented, but would in no way put them on a path to citizenship, what political theorist Elizabeth Cohen has referred to as a state of "semi-citizenship".

Any way you cut it, immigration will remain a central issue in the 2016 presidential contest and all the candidates would be wise to staff up on immigration specialists. 

Cheat sheet on 2016 GOP candidate positions on immigration

From last night's CSPAN event which occurred ahead of Thursday's first GOP primary debate, we learned the immigration position of 14 of the 17 contenders for the GOP nomination, and there is some variation, although not a lot.  Even though no one mentioned Donald Trump in the 2 hour long event, it was clear his remarks had an effect in making the candidates skew right on the immigration issue since no one wanted to cede ground to The Donald's tough stance.  (Trump was not present at the event.) While several candidates had previously backed comprehensive immigration reform, now all said that the border must be secured before there could be any talk about what to do about the roughly 11 million undocumented.  Of note:  not one candidate said that the 11 million should be deported or self-deport a la Mitt Romney. Here are some highlights:

Rick Perry:  Quelle surprise.  Wants to focus on enforcement before anything else.  "Until we get that border secure, it's not going to stop... It's like a serious wound, you want to staunch the flow and that's not what's happening in this country now." With regard to visa overstays, "You go find 'em, you pick 'em up and you send 'em back where they're from."

Jeb Bush:  Who formerly supported comprehensive immigration reform now says that the number of legal immigration should also be limited to those coming to join family in the U.S. rather than open to immigrants bringing a variety of relatives. He is worried about chain migration. His major policy shift is that he supports "a rigorous path to earned legal status" for the undocumented, which is distinct from his past support for a path to citizenship.

Marco Rubio:  Has a very similar version of Jeb's policy which advocates limiting legal immigration to people who have ties to relatives already living here and also people who have job skills.  "We admit one million people a year legally to the United States, but we do so primarily on the basis of whether or not they have a relative living here....We cannot afford to do it that way anymore.  In the 21st century, legal immigration must be based on merit, on what you can contribute economically, basically whether you are coming to be an American as opposed to simply live in America." Rubio who formerly supported comprehensive immigration reform, now says that the border must be secure before any talk of relief for the undocumented is to be had.

Rick Santorum:  Wanted a 25% reduction to the number of low skilled immigrants allowed into the country.  "Everyone else is dancing around it. I'm going to stand for the American worker."

John Kaisch:  Called for an expansion in temporary guest worker programs and those undocumented who obeyed the rules, should be allowed to stay.  "Law-abiding, God-fearing" immigrants should be allowed to stay. Those who break the law, "have to be deported or put in prison."

2014 Herbert Kurz Chair Roundtable: The Politics of Immigration and Citizenship--Past as Prologue

As the Herbert Kurz Chair in Constituional Rights, each year I have the pleasure of putting together public programing around the theme of constitutional rights.  In 2012, we took on NYPD's controversial Stop and Frisk policy.  Last year, to commemorate the 60th anniversary of Brown v Board of Education, we tackled school desegregation.  This year, we investigate the politics of immigration, a subject that has been described as the "new third rail of American politics."

Individuals and groups as diverse as the NAACP, Mark Zuckerberg, Al Sharpton, MALDEF, SEIU, the Chamber of Commerce, and many others including leading CEOS in the Silicon Valley have loudly called for comprehensive immigration reform.  Zuckerberg has said that immigration is the civil rights issue of our time.  All feel that the system is profoundly broken and is harming individuals and families, and also puts U.S. businesses in an uncompetitive position.  In the summer of 2013, the U.S. Senate passed a comprehensive and bipartisan immigration bill.  The initial elation quickly evaporated when the House failed to follow suit and openly stymied the process.  The immigration reform effort was declared officially dead in the summer of 2014.  Was immigration reform always mission impossible?

To address that question and related ones, I am convening a round-table of prominent immigration scholars who study immigration in historical context.  Common to all the participants is that they believe why something happens in American politics is often explained by when it happens.  These scholars are adept at drawing insight from our immigrant past to explain our present. 

WHAT:      Round-table on the politics of immigration and citizenship

WHEN:     Thursday, October 16, 4:30-6pm, with informal reception to follow

WHERE:  CUNY Graduate Center,  365 Fifth Avenue (@ 34th St.), Sociology Lounge (Room 6112)

WHO:  The participants are prominent immigration history, law, and public policy scholars.

Cybelle Fox, Assistant Professor of Sociology, UC Berkely, author of  Three Worlds of Relief that won 6 book awards.

Rebecca Hamlin, Assistant Professor of Political Science, Grinnel College, author of the recent Let Me Be a Refugee.

Rogers Smith, Christopher H. Browne Distinguished Professor of Political Science, U. of Pennsylvania, and author of Civic Ideals, a finalist for the 1998 Pulitzer Prize in History.

Dan Tichenor, Philip H. Knight Professor of Social Science, U. of Oregon, and author of Dividing Lines, winner of the Gladys Kammerer Award.

As moderator, I have asked the participants to take 3-5 minutes to address what aspect of our immigrant past best illuminates our current situation, and then we will immediately open the floor to audience questions.

You can run like Rand, but you can't hide--the GOP's immigration dilemma

The New Republic has already mocked Rand Paul's (R-KY) inelegant dine-and-dash mid-bite of his burger in Iowa recently with a reference to Monty Python.  In watching the painful footage of Steve King (R-IA) being confronted by two very articulate and educated DREAMERS, an Arizona State graduate and another law student, both brought by their parents to this country when they were young and are undocumented, you see the crux of the GOP's immigration dilemma.

First, here's the footage of the now famous Rand Paul profile in courage.  You need to see for yourself King's words.

ith regard to Rand Paul's quick exit--he really had no choice--that old Flock of Seagulls song comes to mind.

But King comments, as he alternates between complimenting Ms. Andiola repeatedly on her command of the English language and asks her if she is a drug smuggler (because that's allegedly the only kind of undocumented immigrant he's opposed to) encapsulates the GOP's bigger problems with immigration.  The party will be repeatedly challenged by a growing generation of DREAMERs like the two in the video, educated in the U.S., articulated, and bold.  And unfortunately for King and Running Rand, the Latino community see King and his ilk as emblematic of the entire party's stance on immigration rather than an outliers of the party.

Analysis of Obama's $3.7 billion request for immigration control

Today the Obama Administration announced it's 3.7 billion dollar request to stem the tide of unaccompanied minors children at our nation's borders.  In recent months, the U.S. has witnessed a sharp increase of children arriving from Mexico and Central American countries.  The breakdown of that mammoth request is driven by political concerns rather than actually an attempt to solve the problem.

Every immigration decision is two pronged; some factors are pushing the migrant to leave their home country, and other considerations are drawing them to the United States, as opposed to another nation as a final destination.  In recent days, there has been media coverage of the changes in immigration law that have led to this current crisis of so many children traveling alone and risking their lives to reach the U.S.  That may explain while unprecedented numbers are trying to get to the U.S.  But according to a recent report, the minors are leaving their home country because of the desperate poverty, widespread violence, and a desire to reunite with other family members.

The breakdown of the $3.7 billion dollar request does not seem to reflect the reality of the migration calculus.  It is as follows (h/t Phil Wolgin):

-$1.8 million to the Department of Health and Human Services for the care of the migrants.

-$1.1 billion to the Department of Homeland Security for the detention, prosecution, apprehension, and removal of the migrants.

-$433 million to Customs and Border Protection for apprehension of migrants.

-$300 million to the Department of State, of which $295 million is to help governments of the sending countries be aware of and to address the problems that cause people to leave.

-$64 million to the Department of Justice for more staff to process the deportations and some funds for the legal representation of some of the minors.

The bottom line is this, most of the $3.7 billion is going to enforcement and repatriation, some of it is going to the care of the immigrants while they are in the U.S., and less than 10% of the funds is going to address push factors in the sending countries.  If one wants to address the root causes of this phenomenon, it would appear that the breakdown of the spending will not actually do that and this  itemization is a political response to what should be treated as a humanitarian crisis.

Are immigrants a captured constituency of the Democratic Party?

It's not been a good year for immigrants and their supporters.  Last summer, the Senate passed a bipartisan comprehensive immigration bill, but elation soon gave way to frustration as the House refused to move on the bill and even a piecemeal approach died.  Then Eric Cantor (R-VA) was unceremoniously shown the door and many saw that development as the death blow for any hopes of immigration reform this year because he was replaced by an opponent that campaigned explicitly on an anti-amnesty stance. 

Last week, a memo declassified by the Clinton Library showed Rahm Emanuel advising then President Clinton in 1996 to out-Nixon even Nixon on law and order issues and specifically to deport "a record number" of immigrants.  Finally, two days ago, Obama announced a new emergency effort to streamline the deportation process to make it easier to return persons showing up on our southwestern border including unaccompanied minors.  Particularly egregious is that the Administration's new request for funding and change of policy is being made while the White House is also simultaneously referring to  the large number of child arrivals as a "humanitarian crisis", which would suggest a non-punitive response.  Are immigrants and their supporters a captured constituency of the Democratic Party?

Political Scientist, Paul Frymer argued in Uneasy Alliances Race and Party Competition in America that the two party system in the U.S. allows the Democratic Party to blow off the concerns of African Americans who are a numerical minority in order to appeal to moderate white voters who will help them win elections.  Frymer used the term "electoral capture" by which he meant:

[T]hose circumstances when the group has no choice but to remain in the party.  The opposing party does not want the group's vote, so the group cannot threaten it's party leaders with defection.  The party leadership, then, can take the group for granted because it recognizes that short of abstention or an independent (and usually electoral suicide) third party, the group has no where else to go.

Given that the Democratic Party seems to be trying to outdo the Republicans on toughness against immigrants, do immigrants and their supporters really have any good options except to stick with the Democratic Party and its schizophrenic immigration policies?   On the one hand, Obama has removed/deported a record numbers of immigrants and now is seeking to further streamline return/removal requirements.  On the other hand, Obama also created a program that Deferred Action for Childhood Arrivals, giving certain immigrants reprieve from enforcement. 

On balance though, it would not be accurate to consider immigrants a captured Democratic constituency, for now.  One reason is that many of the GOP leadership and even the rank and file  of the party do not oppose immigration reform--but a vocal and vociferous Tea Party wing does.  Indeed most Republicans realize that given the electoral calculus, moving on immigration policy has to happen at some point so the party does not continue to hemorrhage Latino voters and lose national elections repeatedly.  So it's not out of the question that the Republican Party would support immigration reform.  And, it also cannot be said that the Republican Party does not want the immigrant vote, quite the opposite.  BUT...while the GOP figures out how to deal with its Tea Party wing, the immigrants are temporarily captured by the Democratic Party.

Even if immigrants are not permanently electorally caputred yet, the two party system is one of the main culprits in enabling the continued lack of much needed immigration reform, and, indeed a lack of any bold legislation, to drag on now for several more years.  The structural incentives are such that both parties' main goal is to appeal to the median/moderate voters first to get themselves reelected before being responsive to a minority constituency on a controversial topic.

McCullen v Coakley, When a qualified right trumped a fundamental right

Yesterday the Supreme Court issued its opinion in McCullen v Coakley, about a Massachusetts law that creates a 35 foot buffer zone around abortion clinics.  The Court unanimously struck down that law as an impermissible violation of one's speech rights.  Apparently in yesterday's decision, the Court left intact their finding in Hill v CO that Colorados's law that persons cannot "knowingly approach" a person without that person's consent within 100 feet of an abortion clinic to talk to the person, hand them a leaflet, display a sign, or engage in conversation or protest.  The issue seems to be the manner in which the MA law restricted speech.  The Court apparently believed that the persons whose free speech rights were being infringed upon were not "protesters" (who are allowed outside buffer zones) but, persons who are sidewalk "counselors" who  "seek to engage in personal, caring, consensual conversations with women about alternatives."  Egregiously the Court has privileged the zealots speech rights over one's fundamental right to privacy.

How is the Massachusetts law a restriction of speech?  It just restricts the place that speech can take place. There is no unqualified, unrestricted right to speech.  Through many cases, except this one, the Court has said that one's free speech rights is relational to the public welfare and public safety also.  Speech never was an absolute right.  The Court noted there was not enough evidence for the MA law. Huh?  Indeed, Massachusetts had passed the law to address not just the harassment and intimidation women face upon entering the clinics, but also outright violence as evidence by the shooting rampage at two clinics in 1994.  So the Massachusetts law restricts speech within a space roughly half the distance from a pitcher's mound and home plate, and only in that space.

This case is not about free speech being balanced against the autonomy of women.  What happened to a women's right to privacy, which the Court has said is a fundamental right?  I don't mean the privacy that underwrites the Roe v Wade case that grants a right to an abortion.  I mean more practical immediate privacy.  Planned Parenthood and other women's health clinics typically provide not just abortion services but mammograms and pap smears.  Does every women have to explain herself to the sidewalk "counselors" as she enters a clinic about what actual health services she is about to receive?  Or more likely, are the "counselors" simply going to assume that any and every woman walking into a clinic is going to get an abortion and therefore bestow their "counseling" on all entering women anyway.  What happened to the privacy rights of women granted in Griswold v CT of a woman to choose to discuss her health concerns only with her doctor and medical staff? Or to paraphrase former Justice Louis Brandeis, the right to be left the fuck alone?

The opinion really raises more questions than it answers.  When does "quiet conversation" cross the line into intimidation and harassment?  I don't have to raise my voice or swear to be intimidating.  Questioning/badgering/asking for moral justification of someone about their private life choices, even in the most "polite" way, can be intimidating and harassing.  Why does some religious zealot with no actual psychological or social work counseling get elevated to "counselor" who is entitled to offer their uninformed and unwanted ideological opinion to women?  And are such laws really neutral in application? How many "counselors" outside of these clinics are abortion supporters affirming the woman's right to choice?

So much for one's fundamental right to privacy.

With Friends Like These...Rahm Emanuel's Advice to then President Clinton on Immigration

It's apparently been 12 years since the Clinton White House and some of the presidential documents are now being unsealed.  (h/t Corey Robin) This memo was in that trove, an internal memo by Rahm Emanuel, then Clinton's adviser now Mayor of Chicago, advising Clinton on immigration and other issues.  (The immigration discussion begins on the bottom of page 3 of the memo.) The tone is the cut and dried matter-of -factness of any policy memo, and Machiavellian.  The overall advice is to be like Nixon(!), be tough on crime, a perennial weakness of Democratic candidates, by coopting some GOP language and strategies.

Some historical context:  by the time President Clinton read this memo, the Anti-Terrorism and Death Penalty Act (AEDPA) had passed and so had the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA).  AEDPA was passed on the one year anniversary of the Oklahoma City bombing, and it is worth reminding everyone that terror attack was carried out by a home grown terrorist.  But both AEDPA and IIRIRA had profound immigration consequences.  It worked to eliminate waivers to deportation (usually granted based on close ties to U.S. citizen and Lawful Permanent Resident Family members) ,and strip federal court review for immigrants convicted of serious crimes.  (Side note:  anyone who read my book knows why federal court review is often the last line of defense against administrative errors.) It also created mandatory detention for all, including persons seeking political asylum. 

The laws also greatly expanded the kinds of crimes considered "serious", which depended on state law definitions of crime, which of course vary across states.  In short, AEDPA and IIRIRA made it much easier for the government to deport people. Immigrant advocates decried the legislation as unnecessarily punitive.  The list of horribles is enumerated here.  No immigration attorney or anyone who cares about due process likes these two bills.  Thousands of mix status families (some immigrant, some U.S. citizen in the same family) have been torn apart due to these laws.

Now, reading Emanuel's Nov. 1996 memo to Clinton, we know that Emanuel didn't think they went far enough with AEDPA and IIRIRA. 1)  He counsels Clinton to expand a hearing program that will result in "record deportation of criminal aliens".  2) Taking a page out of the McCarthy Era described in Patrick Weil's book, he advises that Clinton should call a one month moratorium on naturalizations to review cases for "criminal misconduct" so Clinton can look tough on crime. 3)  He advises that Clinton force the INS to expand an employment verification procedure so that Clinton can claim certain industries are now "free of illegal immigration", even though that procedure is flawed.  4) He counsels what every other Democratic and Republican president does, which is to announce periodically resources to be thrown at the southwestern border, whether it is efficacious  or not, but for the sake of political theater.  5)  He suggests enlisting the Coast Guard to help police immigration which "avoids the charge of militarizing the border."

Notably, all Emanuel's suggestions are about enforcement on immigrants instead of providing relief of any kind.  Moreover, his advice does not include cracking down on U.S. employers who hire immigrants and therefore also break immigration law, by deploying more resources to interior and worksite enforcement and strengthening sanctions and financial penalties against those who hire the undocumented.  Without turning off the magnet attracting undocumented immigration, Emanuel's suggestions just further hurt immigrant families while letting exploitative U.S. employers off the hook

It's reasonable to assume that Emanuel passed along his electoral policy suggestions to Obama as well, but Obama's huge deportation rates are now coming back to bite him and his party with Latino constituents.  And the worst thing is Clinton and Obama seemed to have followed Emanuel's suggestion to deport "a record number" of people, but they have not targeted criminal aliens and instead bagged many persons who happened to be in the wrong place at the wrong time and who were indeed in violation of immigration laws and minor crimes, but were not hardened criminals.

Dude,  with "liberal" presidents "friends" like Bill Clinton and Rahm Emanuel who are trying to out-law-and-order the GOP, who needs enemies?

Why Eric Cantor's Loss is not a rejection of immigration reform

Pundits are likely to claim that House Majority Leader Eric Cantor's (R-VA) loss to his Tea Party backed challenger David Brat was a resounding rejection of amnesty.  It is no such thing.  It is true that Brat conflated Cantor's acquiesce to piecemeal immigration reform  (much of it different versions of enforcement) into support for amnesty.  But Cantor's loss should not be read as a referendum on immigration.

Mainly, Cantor's loss should be attributed to an anti-establishment mentality among the electorate.  (h/t Lina Newton who noted Cantor's win follows the pattern of other Tea Party wins i.e. longtime incumbent TKO'd by unknown, under-funded challenger.)  One VA voter said:  "There are some very angry people upset with the status quo, and Eric became part of that,” said former Representative Thomas M. Davis III, a Virginia Republican. “He was the only conduit they have to express their anger right now."

More evidence that the immigration issue alone did not cause Cantor's loss is Lindsay Graham's (R-SC) comfortable primary win.  Graham has unabashedly and unswervingly backed comprehensive immigration reform as one of the bipartisan Gang of 8 Senators that managed to pass the Senate immigration bill last summer.  He supports immigration reform in part because he does not believe the GOP's long term prospects are sustainable without it.

Who would have imagined that the immigration community would be ambivalent about Cantor's loss because it throws any immigration reform this year into serious doubt, with some already pronouncing the subject matter dead on arrival?  I, for one, am more upset at what the Cantor loss says about the state of the polity.  When someone like Eric Cantor can be considered an "establishment Republican" and not conservative enough, we're in for a rough ride.

Summary 2014 Kurz Panel: Are we More Equal? 60 years after Brown v Board

As part of my duties as Kurz Chair in Constitutional Law and Civil Liberties, I am charged with producing public programing relating to civil liberties and civil rights.  In commemoration of the 60th anniversary of the landmark Supreme Court desegregation decision, Brown v Board of Education, I brought together three experts in education policy and history for the 2014 Kurz Panel.  The panel discussion took place at Brooklyn College on April 7, 2014 and was attended by about 50 faculty members and students of the college.  I had asked the panelists to assess how far we as a nation had come since Brown v Board and how much further we need to go.

David Bloomfield of Brooklyn College started off the discussion.  Having served as a former General Counsel to the New York City Board of Education and adviser to Manhattan borough president, Bloomfield is an expert in educational policy and law generally, but also on the situation in NY in particular. He noted that while the Presidential order by President Carter was issued many decades ago, we are no closer to eliminating school desegregation.  Moreover, there are persistent problems beyond just physical and racial segregation of schools.  There is still an achievement gap between white and minority students.  He reported some of the findings of a recent UCLA study issued by Gary Orfield, the leading school segregation researcher, that noted NYC is home to the nation's most racially segregated school districts. Among some of the negative effects of this racial segregation:  schools that contain predominantly black and Latino students have less experienced teachers, less resources, and students of these groups face more suspensions out of proportion of their numbers in the school population.

Bloomfield especially hammered home the point that in NYC, "geography is destiny" for your education opportunities in the sense that where you live dictates the quality of your schools if you cannot afford to attend private schools.  Much of the effect of racial segregation in NYC schools results from income inequality, housing patterns, and its overlap with race.  He notes the many school districts that are predominantly minority could not afford to run a gifted and talented programs because allegedly, too few students qualified for them.  On the flip side, the number of black and Latino students admitted to NYC's specialized high schools was abysmal.  He quoted the statistic that Stuyvesant High School admitted all of 7 African American students this year.

Chris Bonastia, a Sociologist from CUNY Lehman and the Grad Center, then presented some historical context for the struggle for desegregation.  Bonastia has written a book about Prince Edward County in Virginia which closed down its public school system from 1959-1963 in order to halt the integration demanded by Brown and repeated federal court orders.  Prince Edward County was in fact one of the counties included in the second Brown compliance case.  Bonastia noted the problems with court decrees that lacked specific enforcement and compliance mechanisms.  There was quite a bit of resistance not just from Prince Edward County, but among many counties in both the North and South, due to the lack of clarity about what actually constituted compliance with the Brown decision.  Nevertheless, compared to other counties and states, what made Prince Edward County stand out was the duration and concertedness of the resistance to integration.

Bonastia recounted what happened in Prince Edward County after the closure of the public school system in 1959.  Essentially private schools popped up to coincide with the closing of the public schools and most of the white students went to those private schools.  Meanwhile, 3/4 of the black students from that county missed 5 years of education.  In 1964, when the federal courts ordered the public schools to reopen, the county simply starved them for funding.  Bonastia further noted that the problem with segregated schools was mainly a resource issue; minority schools were simply not funded with comparable resources to white schools.

Karolyn Tyson, a Sociologist from UNC Chapel Hill gave the last presentation.  Tyson has authored a book calling attention not to the racial segregation across schools, but within schools.  She started by saying there is no question we as a nation have come a long way since Brown, but persistent racial inequality within schools continues to undermine the many gains made since Brown.  Her research is about the problems of racial inequality that persist within integrated schools within the tracking system.  White students dominate AP and Honors track classes while black and Latino students dominate lower track classes.  The problem with this tracking system that correlates with race is that lower track classes regularly suffer more disruptive classrooms, are less challenging, have fewer experienced teachers, and fewer resources than higher track classes.

She also conducted ethnographic research among high performing black high school students to see how they were making sense of the racial segregation within schools.  The results are devastating.  When these black students see in all their Honors and AP classes that they are among less than 3 black students in those classes, they start drawing negative conclusions.  One student said, "It [the pattern] looks like black people aren't that smart and black people can't cut it."  Or from another student, "Black people just don't take Honors/AP classes".  Tyson said these tortured comments result from the constant messages we all are sent that your educational quality and result are a result of merit alone, not the structural racism that she had documented.

The three presentations together painted a sobering picture of persistent racial segregation patterns 60 years after Brown.  Although de jure segregation has been eliminated, the effects of property values, income patterns, and their correlation with race conspire to ensure that de facto segregation persists in areas like NYC.  In addition, one cannot look just for segregation across schools when there are racial disparities within integrated schools.  Finally, as Bonastia cautioned, given the shameful legacy of how private schools were used in Prince Edward County to avoid integration, one must be vigilant against siren song of privatization of schools as the magic bullet that will solve problems.  Some charter schools, as Bloomfield noted, are contributing to the racial segregation problem in NYC.

At the conclusion of the presentations, the panelists took questions for about 20 minutes.  The audiences was very engaged and asked a variety of questions including, "Who is to be held responsible for the mess that is NYC public school?" and "Is culture a factor in different student groups' academic success.?" Some of my students who attended the panel told me the information they learned was "eye opening". 

McCutcheon: Speak Loudly by Carrying a Huge Wad of Cash

Judicial modesty is on life support.  Restrictions on campaign spending are starting to look positively quaint.  An activist Court has struck again.  The conservative turn taken by the federal courts in about 1980s was viewed as a reaction to the liberal Warren Court.  But as Tom Keck has argued in his outstanding book, The Most Activist Supreme Court in History, observers had expected a return to judicial restraint.  Instead, the Rehnquist Court and now the Roberts Court, while upholding most of the Warren Court rulings, also created their own brand of "conservative activism" by overturning long settled law in several areas including and not limited to campaign finance.  In so doing, one of the Roberts Court's distinction is unleashing an unprecedented flow of cash into campaigns and elections.

The opening salvo in dismantling limits on campaign contributions put in place for decades by Buckley v Valeo  (1976) began with Citizens United in 2008.  Buckley v Valeo had created dollar amount limits that an individual could contribute to a candidate, political party, and political action committee. The decision upheld laws passed in the aftermath of the Watergate scandal that had the intent to restrict cash flowing into the electoral system because of the unscrupulous practices that may result.  Moreover, in the per curiam decision the majority noted that Congress was right to guard against not just actual unscrupulous behavior, but even "the appearance of impropriety".  424 U.S. 1 @ 30.   (Buckley also  held that a wealthy individual could spend unlimited amounts of his/her own money in an effort to get themselves elected to public office).  

Citizens United did not address these individual limits but instead took up the question how much corporate entities and unions could spend in campaigns and elections and whether these entities had to disclose their spending which is now equated with "political speech".  These entities did so by challenging The Bipartisan Campaign Reform Act (BCRA).  In that case, the Roberts Court returned a sweeping decision which granted corporate entities the same status as individual persons saying that if individuals had protection for free speech, so did corporations and unions.  Further, this speech right of corporations cannot be limited to a dollar amount, although the spending of corporations cannot be done in active concert and affiliation with a party or candidate.  That decision has been roundly criticized, not the least by conservatives like Judge Richard Posner of the 7th circuit.  Posner writes:

The Supreme Court allows donations to political campaigns to be regulated (and limited) because of fear that donations unlimited in amount corrupt the political process, because the candidate recipient knows that a donor of a large amount of money expects something in return, usually favorable consideration of a policy that would benefit the donor, and hence a large donation is likely to be a tacit bribe. But the Court, rather naively as it seems to most observers, reasoned in the Citizens United case that the risk of corruption would be slight if the donor was not contributing to a candidate or a political party, but merely expressing his political preferences through an independent organization such as a super PAC—an organization neither controlled by nor even coordinating with a candidate or political party.

Posner's goes on to question the ability of anyone to police the "coordination", or collusion between corporations and campaigns/candidates and he absolutely rejects the idea that more cash poured into campaigns equals a more informed citizenry since most of the ads don't aim to smear the opponent instead of actually educating in a positive way.

I disagree with Posner that the Citizens United majority was naive.  The conservative majority knew full well what would result.  The Roberts Court in Citizens United and McCutcheon seem to be thinking one thing:  payback.  Now that the conservatives have the majority on the Court, they will unabashedly reshape society through laws into their preferred view.  The Warren Court had mollycoddled the poor, minorities, and criminal defendants enough--it's time now for the moneyed interests to get some love.  They have accomplished this task by creating the legal fiction of corporations having speech rights like persons and in equating spending to speech.

Thanks to Citizens United, corporate interests can now not only spend unlimited amounts on campaigns, but also hid behind bland labels like Restore Our Future and FreedomWorks for America.  How this move and those in McCutcheon avoid the appearance of impropriety is a mystery.

Now comes McCutcheon v FEC to follow up on easing limits on individual donors.  Although McCutcheon is a less sweeping decision than Citizens United, it does the following as described by Lyle Denniston at SCOTUSblog:

The per-donation limits now in effect that the Court did not disturb are $2,600 per election to a candidate (with primary and general elections treated separately), $32,400 per year to a national party committee, $10,000 per year to a state or local party committee, and $5,000 per year to a regular political action committee (but that cap does not apply to the new “Super PACs” that only spend independently and do not give money to candidates).

What the Court struck down were these two-year ceilings that would have been operating during 2013 and 2014: $48,600 to federal candidates, and $74,600 to political committees.  Of that $74,600, no more than $48,600 can be donated to state and local party committees and PACs.

The majority in McCutcheon believes that by leaving the individual spending limits to each candidate, party, and regular PACs in place, these restrictions will be enough to prevent corruption which in Citizens United they had defined as preventing "quid pro quo corruption". (pg. 3 of the District Court opinion).  Donors are now free to send unlimited amounts not on one candidate, but on many, say to fund 500 Republican candidates instead of spending it all on 5. 

Of my many objections to McCutcheon, I will point out one that many other analysts have already indicated, and that is the cramped definition of "corruption" as only of the quid pro quo variety.  When a donor, whether a corporation or an individual gives a candidate a large sum of money, few hand over the cash without expectations, even if those expectations are not explicitly stated.  The burden of the obligation felt by the candidate to the large donor may be unspoken but no less weighty on the recipient. 

Lawrence Lessig has objected to the overly-narrow and ahistorical conception of "corruption" being used in Citizens United and now McCutcheon.   He notes that the framers, whom Scalia and Thomas allegedly hold up as authorities, had a far more expansive definition of "corruption":

What was absolutely clear from that research was that by “corruption,” the Framers certainly did not mean quid pro quo corruption alone. That exclusive usage is completely modern. And while there were cases where by “corruption” the Framers plainly meant quid pro quo corruption, these cases were the exception. The much more common usage was “corruption” as in improper dependence. Parliament, for example, was “corrupt,” according to the Framers, because it had developed an improper dependence on the King. That impropriety had nothing to do with any quid pro quo. It had everything to do with the wrong incentives being allowed into the system because of that improper dependence.

When I read the miserly definition of "corruption" as only encompassing quid pro quo malfeasance, it brought to mind then Assistant Attorney General John Yoo's definition of torture as: “The victim must experience intense pain or suffering of the kind that is equivalent to the pain that would be associated with serious physical injury so severe that death, organ failure or permanent damage resulting in a loss of significant body functions will likely result.”  By so narrowly defining "corruption" Citizens United and McCutcheon leave as possible many permutations of undue influence that would fall short of, but be no less damaging to our democracy than quid pro quo corruption.

The success of the NAACP to dismantle the wall of racial segregation took more than half a century.  Copying the tactics of the NAACP, conservatives will likely bring down attempts to hold back the undue influence of the rich on the electoral process much sooner by taking brick by brick out of the wall that guards against undue financial influence in elections.  As one of my former students who is a fundraiser for the DNC notes, the immediate effect of flooding the electoral system with money is that we get people running for public office who are not necessarily the best leaders or statespersons--just the best fundraisers.  The long term effect of these decisions remain to be seen.