Winners Take All: The November Election Is Absolutely Huge

Clyde DeWitt's Legalese column originally ran in the March 2016 issue of AVN magazine. Click here to see the digital edition. Wherever it is in the United States that you may live, on November 8 you will have the opportunity to vote for the office of President of the United States; for a member of the House of Representatives from your district; in many states, for a senator; and in many places, for state, and local officials. This is a very important election. Below explains why, including a refresher on some principles of American government. This stuff is really important. Your livelihood—and maybe your freedom—depends upon it.The United States Supreme CourtJustices of the Supreme Court, of course, are not elected, thankfully. Rather, they are appointed by the president with the “advice and consent of the Senate.” So why talk about the Court in connection with the election candidates? And why talk about it first? Read on. The “advice” part of the latter-quoted phrase does not mean much, but the “consent” part looms large. When a president nominates someone to be a Supreme Court justice, the nominee must undergo hearings in the Senate. If, after the hearings, a majority does not vote to confirm the nominee, the president is required to start over. The Supreme Court normally has nine justices: a chief justice and eight associate justices. Of the current eight remaining after Justice Scalia’s death, two are very extreme conservatives: Justices Thomas and Alito. A third, appointed by George W. Bush, Chief Justice Roberts, has strongly conservative leanings. The ultra-conservative two plainly would vote to overrule Roe v. Wade, the Court’s 1973 abortion-rights case if given the chance. They also consistently vote to trample free-speech rights unless Big Corporate America is doing the talking. Four liberal-leaning justices—Breyer and Ginsburg, appointed by President Clinton, along with Justices Kagan and Sotomayor, appointed by President Obama—largely support free speech rights. The swing justice on issues important to this industry is Justice Anthony Kennedy. In 1987, after the Senate blocked President Reagan’s nomination of ultra-conservative, out-of-the-box Robert Bork, Anthony Kennedy was something of a surprise choice. He has been a disappointment to conservatives. Because he is a Catholic, they were counting on him to vote to overrule Roe v. Wade. He has done the opposite. How likely is it that the winner in November will affect the makeup of the court? If the next president serves two terms, three justices will be well into their 80s or more before he or she leaves office: Justice Ginsburg, who will be 91 at the end of that eight-year run, as well as Justice Kennedy, who will be 88, and Justice Breyer, who will be 86; and it’s a good bet that President Obama will not have the political muscle to replace the recently deceased Justice Scalia.  If the Senate majority is of the president’s party, the nominees to fill any of these slots will have easier sailing through confirmation hearings. If the replacements come from the Republican Party, you can be certain that Roe v. Wade will be overruled as will probably marriage equality; and many of the principles that keep this industry alive are sure to be severely eroded. To illustrate how determined the Republicans have been to kill Roe v. Wade, consider the following: • During his re-election campaign in 1984, President Reagan aggressively sought support from evangelicals, as has every Republican presidential candidate since then. The centerpiece of that effort consistently has been a promise to nominate to the Supreme Court conservative justices who would vote to overrule Roe v. Wade. • All five of the currently sitting justices appointed by Republican presidents are members of the Roman Catholic Church, which vehemently opposes abortion. (The sixth Catholic on the Court is Justice Sotomayor.) Oddly, the other three justices are Jewish, leaving no Protestant on the Court.) • Ever since President Reagan embraced the evangelicals during his 1984 reelection campaign, materially every major Republican candidate has pushed Roe v. Wade as a campaign centerpiece. The justice that most Republicans like best was the late Antonin Scalia, who complained in his dissent in the 2003 Lawrence v. Texas decision, the case striking down laws against consensual, homosexual activity: “State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers’ validation of laws based on moral choices. Every single one of these laws is called into question by today’s decision.” Worse, Donald Trump of late stated his preference for Justice Clarence Thomas, who usually agrees with Scalia but in many senses is worse. The Roe v. Wade issue is important because justices typically are as aligned on free-speech issues as they are on abortion. In fact, they are typically similarly aligned on most individual liberties issues, save two: gun rights and corporate speech, the latter being a bombshell, as explained below.The Citizens United CaseIn the 2010 Citizens United v. Federal Election Commission decision, the Supreme Court dealt the biggest blow to individual rights in its history. The case involved the McCain–Feingold 2002 Bipartisan Campaign Reform Act, which placed severe limits on campaign spending. The Court gutted the law on First Amendment grounds, in a 5-4 decision. And the majority justices consisted of the five Republican appointees on the Court. And—you guessed it—the dissent consisted of the four Democratic appointees. The net result of Citizens United is that individuals and corporations now can contribute all the money that they want to support or oppose a political candidate for any office, federal state or local. Cash is king! The disparity between the very wealthy and the rest of us is the greatest since the post-Civil-War Industrial Revolution days, when the likes of Vanderbilt, Rockefeller and Carnegie monopolized the core industries of the day, and workers were paid slave wages to suffer outrageous working conditions—a condition that the Republicans are doing what they can to reinstate.The President’s Other AppointmentsBy now, hopefully you have come to understand the importance of the Supreme Court and of the importance of the President’s appointment power. That power, by the way, also applies to lower federal court judges that are in the trenches and decide the lion’s share of cases. The president also appoints the heads of his many departments—the Cabinet—importantly including the attorney general, who heads the Department of Justice. The Department of Justice lawyers are the national prosecutors, with discretion to determine which federal laws should attract the most law enforcement attention. The FBI is a part of the Department of Justice. Since 1985, when President Reagan was sworn in for his second term, every Republican administration has supported and enforced the federal record-keeping and labeling law, 18 U.S.C. §2257, and has brought obscenity prosecutions; and no Democratic administration since then has done so. That, folks, impacts your business and your freedom. The United States is divided into nearly 100 federal districts, each of which has between a handful and a couple of dozen district judges. There are 13 courts of appeals, each of which has a comparable number of judges, often called “circuit judges.” Each court of appeals handles appellate matters from a handful of states, with two exceptions: the Federal Circuit, which primarily handles patent cases, and District of Columbia Circuit. District judges and circuit judges, like Supreme Court justices, are appointed for life by the president “with the advice and consent of the Senate.” Many judges of the district courts eventually are elevated to a court of appeals, although that elevation process requires presidential appointment and Senate approval, just as in the first instance. Thus, it is the lower federal judges who are in the trenches and who usually have the final say on the interpretation of the law.The United States Senate Not all of you will have the opportunity to vote for a Senate seat because, as you remember from civics, the two senators from each state serve six-year terms. As a result, your state will not have a Senate seat on the ballot every third general election. However, if you do have a Senate vote this time, understand how important that is. In 2016, the Senate definitely will be in play—and the conservatives are pouring money into it like no tomorrow. The Senate is a curious body. Each state, of course, has two senators, regardless of population. In the political environment that has existed since the beginning of the growing chasm between the two major parties in the 1960s, Republicans have started with a huge leg up because, for example, sparsely populated Republican states such as Wyoming and Montana each have the same representation in the Senate as hugely populated Democratic states like California and New York. There are two important things to know about the Senate: Thing One is that a 60-40 majority has the power to filibuster—to bring Senate action on a given topic to a grinding halt. Thing Two is that a two-thirds supermajority can override a presidential veto if the House does the same thing. The Republicans now have a simple majority, with no hope of obtaining the two-thirds majority needed for veto power, but they are pouring freightloads of Citizens United money into increasing their majority to 60-40, affording the capability to stop a Democratic filibuster. In short, with a 60-40 Republican Senate, coupled with a Republican White House and an almost certain Republican House of Representatives, the Republicans will have the ability to ram through pretty much any legislation that they want—and sadly, some Democrats cannot always be counted upon to oppose bad legislation. The Democrats, on the other hand, do have a fighting chance of winning back the Senate. To hope that they can garner a 60-40 majority probably is unrealistic against Citizens United money—lots of Citizens United money!U.S. House of Representatives and State/Local ElectionsThe entire United States House of Representatives, of course, is up for election every two years. And the Republicans have won it every time since 1994 except 2006 and 2008, when the American public was so fed up with the Republicans—after tricking the country into two hopeless wars—that the electorate finally said, “Enough!” For decades, the Democrats enjoyed control of the House. Then, something happened in the 1990s. The Republicans figured out that they could purchase the body. That was before the McCain-Feingold campaign limits and the ensuing Citizens-United case that threw it out. You will have the opportunity to vote in a race for your House district. It is very unlikely that the Democrats will re-take the House in this coming general election. But in swing districts, this can be a start. The Republican strategy that took back the House—that is, essentially purchased it—in all but two elections after 1992 worked because Democratic House candidates have a tough time raising money. The Democratic base is less affluent and their candidate is competing for money with candidates for governor and president. It works even better for state legislatures. Republicans figured—correctly—that they had a fighting chance to gain control of state legislatures by throwing money at the elections. State legislatures redraw district lines in every year that is divisible by 10. That includes state districts and U.S. House districts. In 2000, and worse in 2010, the Republicans bought redistricting in materially all Republican-leaning states; and also did so in a tangible number of Democratic-leading states. That is one significant reason why the House now has such a strong Republican majority. Parenthetically, sick and tired of the politics of redistricting—pejoratively called gerrymandering—several states have created by referendum a politically neutral redistricting commission. The Republican-controlled Arizona legislature wanted nothing to do with neutrality in redistricting and filed suit, claiming that the U.S. Constitution’s provision that the manner of elections, including districting, shall be “prescribed in each State by the Legislature thereof.” The Supreme Court said in 2015 that Arizona’s independent commission was close enough. Expect that trend to spread. However, it won’t spread that far by 2020. The state legislators you elect will, in many cases, be involved in redistricting. Accordingly, who is elected may have ramifications for well over a decade. It could give the Democrats a fighting chance to take back the House—or not. Finally on this topic, the conservatives have taken the same throw-money-at-it approach to local politics. That has the impact of electing conservative, local politicians who do things like enact ordinances calculated to prohibit and/or eliminate adult businesses.The Moral of the StoryDemocratic-leaning voters have a tendency to be apathetic, to their own detriment. They also often have a tougher time voting; Republicans have made sure of that. Republican states have enacted, amongst other things, voter-ID laws and constrained voting hours so that working stiffs need to take off work to vote, the functional equivalent of a poll tax. Nevada, as an example, had a Democratic secretary of state until the 2014 Republican landslide. It was difficult to imagine an easier place to vote: Many polling places; easy early voting; easy registration; and so on. Now that it has a Republican in that office, it will be interesting to see how this coming election will work. One can only picture the cry of state poverty to justify fewer polling places, long lines, elimination of early voting, and so on. “But what difference can one vote make?” you ask. Maybe not much.  But say you get involved in a registration drive and a get-out-to-vote campaign.  Say you are able to get fifty Democrat-leaning voters to the polls. That’s probably forty net Democratic votes, at the least. And say you have twenty-five friends in your precinct that will do the same thing. That’s one thousand such votes in your precinct. If the same things happens in all of the precincts in your state legislative district, that easily could sway the outcome of the election. Democrats can win back the government if they just vote, because there are more of them than there are Republicans. To do otherwise increases the chokehold that the 1 percent has on the other 99 percent of us. Get to work! Vote—and bring your friends. Clyde DeWitt is a Las Vegas and Los Angeles attorney, whose practice has been focused on adult entertainment since 1980. He can be reached at ClydeDeWitt@earthlink.net. More information can be found at ClydeDeWitt.com. This column is not a substitute for personal legal advice. Rather, it is to alert readers to legal issues warranting advice from your personal attorney.