After initial arguments yesterday, the Supreme Court today slogged headlong into the meat of the arguments for and against the Affordable Care Act mandate (transcript and full audio via NPR).

Nothing new here but specific presentation, and maybe the political optics outside the court.  Politico has a recap of the 7 key points, including the "Brocolli Argument":

SCALIA: “Could you define the market — everybody has to buy food sooner or later, so you define the market as food, therefore, everybody is in the market; therefore, you can make people buy broccoli.”

VERRILLI: “No, that's quite different. That's quite different. The food market, while it shares that trait that everybody's in it, it is not a market in which your participation is often unpredictable and often involuntary. It is not a market in which you often don't know before you go in what you need, and it is not a market in which, if you go in and — and seek to obtain a product or service, you will get it even if you can't pay for it.”

Challengers are already cheering the demise of the mandate, and SCOTUSblog's Lyle Denniston confirms this is going to be Justice Kennedy's case to call.  But where Kennedy is may be up in the air (emphasis mine):

“So,” Breyer said, “I thought the issue here is not whether it’s a violation of some basic right or something to make people buy things they don’t want, bujt simply whether those decisons of that groujp of 40 milliion people substantially affect the interstate commerce that has been set up in part” through a variety of government-sponsored health care delivery systems.  That, Breyer told Carvin, ”the part of your argument I’m not hearing.”

Carvin, of course, disputed the premise, saying that Congress in adopting the mandate as a method to leverage health care coverage for all of the uninsured across the nation.  Kennedy interrupted to that that he agreed “that’s what’s happening here.”  But then he went on, and suggested that he had seen what Breyer had been talking about.   “I think it is true that, if most questions in life are matters of degree,” it could be that in the markets for health insurance and for the health care for which insurance was the method of payment “the young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries.  That’s my concern in the case.”

More interesting, was yesterday a setup? As David Dayden has pointed out: yesterday every Justice agreeing a mandate was not a tax under Anti-Injunction, today Obama's SG arguing it's just like a tax to Congress.

And the politics around of it all.  Roll Call has 5 races where health care will matter either way, and why Democrats will make this about RyanCare. Senate Republicans are squealing tires in reverse, hoping everyone forgets "Replace" is a word. For Obama, it could be win-win.  Mandate struck down, Republicans lose a major rallying point for the general election, Democrats may gain one (Activist judges!).  Robert Reich sees Obama positioned well for Medicare for All if the Affordable Care Act unravels.  And somewhere, Lil' Ricky and the Newt are firing up the attack ads on Romney.

Tomorrow's arguments: Mandate "what-ifs" and the Medicaid expansion. 

Can't find an average putting Romney at less than +6% over Gingrich, some have him at +12% so it looks like this one is down to how big/little the lead.  Big lead, Romney might have leverage to at least get the headlines about him more than his oppenents with nothing to lose, at least ask nicely for them to step aside.  Smaller lead, we still have a game here at least as far as headline chasers are concerned.  Either way Gingrich and Santorum have little reason not to drag this out, but their credibility in doing so may evaporate tonight.  What's amazing is how much it's costing "Mr. Most Electable" (?) and SuperPAC friends, how much energy the campaign is having to expend just to stay ahead of Newt Gingrich.  Newt.  Gingrich.  Romney's not connecting. 

While you're waiting for polls to close:

Gallup sizes up 6 months polling and finds swing state registered voters evenly split in an Obama/Romney matchup.

Also: Ron Paul.

FiveThirtyEight: Romney still vulnerable.

Historic partisan love/hate for Obama.

Romney the chameleon may be what's holding back the Newt.  He's the closest candidate GOP voters have to "generic Republican" in a suit and tie.

Finally, not a poll, just cool: Physicists publish The Theory of F#@!ing Everything.

BooMan points to Jonathan Chait in New York magazine, Jim Worth in the Huffington Post and the continued viability of the Newt Gingrich for President train-wreck and concludes Republicans are rethinking their elation over the Citizens United ruling:

Republicans and Democrats hate the Citizens United ruling for different reasons, but it's important that they both hate it. It means there might be some hope of doing something about it. Now, the easiest way to change the law is to replace one of the five conservative Supreme Court Justicies (Alito, Kennedy, Roberts, Scalia, or Thomas) with a Justice who thinks they ruled incorrectly. If the president gets a second term in office, there is a decent actuarial chance that he'll get that opportunity. However, as long as the ruling remains the law of the land, the only way to change it is to pass a constitutional amendment. Organizations like Public Citizen and Common Cause are already organizing events to build support for an amendment-drive. Democracy for America has collected over 100,000 signatures in support of overturning Citizens United through a constitutional amendment. DFA's members are in the process of delivering these signatures to their U.S Senators in the coming weeks. These efforts paint a clear picture. The ruling is unpopular with the public. It has created a system that the candidates don't like. If, say, Newt Gingrich wins the GOP nomination and then loses the election very badly, the Republican Establishment may become amenable to the idea that Citizens United was wrongly decided.

It's undeniable Gingrich would be out were it not for a single large donor and SuperPAC support, and that has Republicans seeing a problem with SuperPAC money, what with him being Newt and all.  But public disapproval or not I don't see Republicans joining in any effort to curtail the speeding train of money the Supremes set in motion with the ruling.  The potential payoff for them is just too sweet.  Their efforts to avoid a "Newt" problem in the future will be focused on dissolving the already weak divisions between candidates and their SuperPACs.  Newbie Utah Senator Mike Lee's request for his own SuperPAC met with hysterical laughter at the FEC hearing, but it's not the last we'll about it.  Lee's own lawyer in that FEC case, Dan Backer, seems to be making a career out of similar court challenges.  They will exploit every vaguery and loophole before they'll sign onto any amendment or legislative shackle of the ruling.

Countering Citzens United is going to require massive public education, post facto, on the election we're about to see play out.  2012 will be the first highly visible test of SuperPAC influence and money.  And public approval/disapproval of the ruling may shift.  The money being spent is influencing voters, which might translate into voters feeling more informed (stranger things have happened). More likely, the barrage of SuperPAC messaging will be digested with skepticism, even irritation, giving Democrats enough leverage to move a vote or two in a second attempt at the DISCLOSE Act.

About midway through the 2012 Sundance Film Festival here in Park City, UT, and I wanted to highlight a few panels and documentary films showcased for those interested in the point where independent film and political activism meet.  Many of the documentaries selected to screen this year and related panel discussions coalesce around a common theme of activism and change.  Links to specific films to watch for below, but first video of two panels streamed live at Sundance.org this week:

Prof. Drew Westen, Sen. Barbara Boxer, and author Magaret Atwood discuss the importance of activists telling a story in the fight against income inequality (highlights only), and The Power of Story: How Docs Changed Change (full session) moderated by CNN's Soledad O’Brien with panelists Robert Redford (Sundance Founder); Sheila Nevins (HBO Documentary Films); and Nick Fraser, (editor of BBC’s Storyville) comparing the art of doc filmmaking with the strategy of successful political activism.  Watch:

Some of the documentary films screening at the festival that reflect the theme of story telling and change:

• - A Fierce Green Fire ("connected" activism)
• - West of Memphis (West Memphis Three)
• - Chasing Ice (climate change)
• - Detropia (Detroit's decline)
• - Finding North (poverty in North America)
• - The House I Live In (humanitarian costs of the War on Drugs)
• - The Invisible War (rape epidemic in the armed forces)
• - We're Not Broke (deficits and corporate taxes)
• - Big Boys Gone Bananas (corporate astroturfing and legal gamesmanship)
• - The Law in These Parts (Israel's legal system and Palestinian justice)
• - Payback (Margaret Atwood/social inequality)
• - 1/2 Revolution (activist footage from Cairo, January 2011) (Raw video I uploaded from the filmmaker Q&A on this one in three parts here.  Amazing story.).

Just a handful of the films and discussions taking place I wanted to share (see the full line up here).  I have been seeing docs at the festival for the past 17 years, and this is the most concentrated and cogent I've seen the category and panel discussions get in relation to not just the stories the filmmakers are trying to tell, but the relationship between those stories and grassroots activism. To say the overall themes of Occupy Wall Street, revolution, reclamation, and income disparity are present at the 2012 festival would be both obvious and an understatement. 

Watch for them to see a larger theatrical or cable tv release later this year.

AlterNet's Steven Rosenfeld (h/t Election Law Blog):

“There’s a lot of movement at the White House,” said Craig Holman, government affairs lobbyist for Public Citizen. “I just had a meeting at the White House counsel’s office, trying to encourage them to move forward with the executive order. They have the perfect window of opportunity to get the executive order done.”

“It’s simple—any company that is paid with taxpayer dollars should be required to disclose political contributions,” said Rep. Anna Eshoo, D-Calif., who has pushed for the White House to issue the order. “With public dollars come public responsibilities, and I hope President Obama will issue his executive order right away.”

The order, if issued, would likely be the only campaign finance initiative to emerge from Washington this year as nothing is expected from Congress.

Expect to hear a lot of squawking about this from Republicans and U.S. Chamber of Commerce, arguably one of the biggest benefactors of undisclosed corporate donations.

"Many of the government contractors that would be captured under the executive order probably are the big contributors to the Chamber of Commerce, so as a result, the chamber is pursuing their battle against this with extreme vigilance," said Craig Holman, lobbyist for the consumer advocacy group Public Citizen, one of 30 organizations that sent Obama a letter last week urging him to sign the order.

Nonprofit 501(c) groups, as the third-party groups are legally known, plowed at least $134 million from secret donors into the last election — $119 million of which was spent by GOP allies, according to an analysis by the nonpartisan Center for Responsive Politics.

The order would require disclosure of any contribution over $5,000, and has the signature support of 62 House Democrats.  Worth noting in advance of the pearl clutching over corporate free-speech, the information is mostly available already.  The order would simply centralize the info in one public database, and clarify penalties for non-compliance.

A look back at 2011 in polls with Gallup's Year in Review.  Some highlights:

January -

The majority of Americans begin the new year with the expectation that 2011will be better than 2010.

With the GOP Republican field undetermined, Mike Huckabee is the best liked and Sarah Palin is the most recognized of the potential contenders.

May -

For the first time in Gallup history, a majority of Americans (53%) support legal gay marriage.

June -

Minnesota Rep. Michele Bachmann enters the Republican race tied with Herman Cain for the highest Positive Intensity Score of any GOP candidate Gallup tracks.

Americans express historically low confidence in most U.S. institutions.

August -

Americans' satisfaction with the way things are going in the U.S. falls back to 11%, the lowest level since December 2008.

Three in 10 U.S. workers fear being laid off, nearing the high seen in 2009.

October -

Gallup's employment tracking reveals that 30% of 18- to 29-year-olds in the U.S. are underemployed.

An increasing number of Egyptians say they are "finding it very difficult" to get by on their current income.

Nate Silver lines up FiveThirtyEight's hit's and misses of the year. 

At the Crystal Ball, Sabato takes to the YouTube for 2012 and Abramowitz reminds everyone that no, again, just like every other year, 2012 won't see and anti-incumbent wave.  So what are voters thinking then?  "Meh"  and "Go Packers!"

And finally, per tradition, polling on the first GOP candidates in Iowa is all over the place, but Mark Blumenthal says there's one last "one to watch" of 2011:

On New Year's Eve exactly four years ago, the Des Moines Register released its final poll of Iowa caucus-goers and turned the political world upside down.

While the newspaper's final Iowa Caucus poll of 2011, set to be published Saturday night at 7 p.m. Central Time (8 p.m. Eastern Time), may not confound the conventional wisdom this time, it is among the most eagerly anticipated political polls of the season for good reason. The Register has a hard-earned reputation for accuracy grounded in the fundamentals of survey research: Assume as little as possible about the likely caucus-goers, and let the voters speak for themselves.

Happy New Year.

Nick Hanauer, venture capitalist, 1%-er: I'm not a job creator, raise my taxes!

Since 1980, the share of the nation’s income for fat cats like me in the top 0.1 percent has increased a shocking 400 percent, while the share for the bottom 50 percent of Americans has declined 33 percent. At the same time, effective tax rates on the superwealthy fell to 16.6 percent in 2007, from 42 percent at the peak of U.S. productivity in the early 1960s, and about 30 percent during the expansion of the 1990s. In my case, that means that this year, I paid an 11 percent rate on an eight-figure income.

One reason this policy is so wrong-headed is that there can never be enough superrich Americans to power a great economy. The annual earnings of people like me are hundreds, if not thousands, of times greater than those of the average American, but we don’t buy hundreds or thousands of times more stuff. My family owns three cars, not 3,000. I buy a few pairs of pants and a few shirts a year, just like most American men. Like everyone else, I go out to eat with friends and family only occasionally.

It’s true that we do spend a lot more than the average family. Yet the one truly expensive line item in our budget is our airplane (which, by the way, was manufactured in France by Dassault Aviation SA (AM)), and those annual costs are mostly for fuel (from the Middle East). It’s just crazy to believe that any of this is more beneficial to our economy than hiring more teachers or police officers or investing in our infrastructure.

Crazy enough that Frank Luntz has hit the panic button.

The Florida Independent's Luke Johnson:

Ending Spending is one of four “super PACs” registered since late September to Nancy Watkins, a CPA at Robert Watkins and Co., at 610 South Blvd. in Tampa, an address well known in Florida political circles. Collectively, groups registered to that address have spent close to $2.9 million in races across the country, all within the last five weeks of the election. Because many of the groups formed after the October quarterly filing date, they won’t have to disclose the names of their donors till after the election.

[...] Thirty-two PACs are registered to the Watkins firm through the Florida Division of Elections and 24 committees are registered through the FEC. Fifty-eight 527s have registered there with the IRS since 2001. The groups range from campaign committees to groups with banal-sounding names, such as the “Common Sense Committee” or the “Alliance for a Strong Economy,” which takes donations from interests such as the U.S. Chamber of Commerce Legal Institute and U.S. Sugar and transfers them to the Republican Party of Florida.

The FEC fined Watkins $99,000 in February 2009 for failing to file contribution notices and exceeding contribution limits in her work as the treasurer of the Mel Martinez Senate campaign.

Watkins would only answer “technical” questions about the groups registered in her name when reached by phone Friday. “I provide a service to them. We are a CPA firm,” she said. She added that she provides a service just like a “shoe factory makes shoes.”

Mutli-million dollar shoes meant to tap dance across elections throughout the country, that is. 

Johnson details how this is all possible and legal and reminds readers that the ads this concentrated funnel of money go to have often been less concerned with accuracy than heavy rotation.  Some great reporting here from TFI's mothership The American Independent on an indepth analysis of Florida's "independent" spending by FollowtheMoney.org, which ultimately concludes:

Independent spending rose from $31.5 million in 2006 to $48.2 million in 2010, an increase of nearly 53 percent. This type of increase indicates that electioneering communication organizations are no longer an obscure type of political committee, but becoming a major feature of gubernatorial campaigns, as well as being used by both Republican and Democratic legislative leaders in the state house and senate.

The seemingly prosaic names of ECOs—Florida’s Working Families, Coalition to Protect the American Dream, People for a Better Florida—obscure the corporations and, in many cases, the politicians who actually control them. This confusion is further underscored by the nature of electioneering communications themselves, which, because they cannot simply say vote for or against particular candidates, tend to engage in vague, negative, and in some cases, false, attacks.⁴⁷

Florida is typically one of the largest and most important electoral battlegrounds in the nation, but it lacks a comprehensive campaign finance disclosure system. Absent one, the public’s ability to understand their government will invariably suffer. Its elections will continue to be influenced by a shadowy network of ECOs that obscure the connections between wealthy campaign donors and the public’s elected representatives.

ECO's controlled by a handful of people like Nancy Watkins, CPA.  And no rules prohibit their direct involvement with candidates or campaigns, because their just "providing a service."

This laundering scheme created in one flawed Supreme Court decision has rendered even aggressive campaign finance statutes meant to protect voters into mere excuses to go underground with SuperPac's and hyper-concentrated spending hubs.  In states with weak reporting laws, 2012 is spending is going to be a free-for-all at the mercy of a few, legally sanctioned and tied only to the flimsiest of disclosure rules.

What could go wrong?

Ackerman says it's a big deal the troops are coming home, but America's military efforts in Iraq are anything but over:

They are instead entering a new phase. On January 1, 2012, the State Department will command a hired army of about 5,500 security contractors, all to protect the largest U.S. diplomatic presence anywhere overseas.

The State Department’s Bureau of Diplomatic Security does not have a promising record when it comes to managing its mercenaries. The 2007 Nisour Square shootings by State’s security contractors, in which 17 Iraqi civilians were killed, marked one of the low points of the war. Now, State will be commanding a much larger security presence, the equivalent of a heavy combat brigade. In July, Danger Room exclusively reported that the Department blocked the Congressionally-appointed watchdog for Iraq from acquiring basic information about contractor security operations, such as the contractors’ rules of engagement.

That means no one outside the State Department knows how its contractors will behave as they ferry over 10,000 U.S. State Department employees throughout Iraq — which, in case anyone has forgotten, is still a war zone. Since Iraq wouldn’t grant legal immunity to U.S. troops, it is unlikely to grant it to U.S. contractors, particularly in the heat and anger of an accident resulting in the loss of Iraqi life.

It’s a situation with the potential for diplomatic disaster.

And the cost of the transition may again be hidden in public accounting.

Via Stoller on Twitter, a blog hoping to elicit a constructive dialog on the Occupy protests and the future of the movement.  In response to George Lakoff's How to Frame Yourself advice to Occupiers at Common Dreams, one post in particular stands out:

1) Lakoff’s insistence that the movement focus on getting candidates with “its moral focus elected in 2012.” I couldn’t agree less. If OWS turns into a get out the vote drive for the Democratic Party, it would be a betrayal of it’s raison d’etre and its resonance with people who are thoroughly disillusioned with the political process, particularly after 2008, when Obama managed to sway a lot of people with his soaring rhetoric and promise of renewal. Election season is already well underway; the Republican candidate will be decided by January and Democrats will try to convince liberals and progressives to fall into line behind Obama. The possibility of OWS running its own candidates in this short period and with existing campaign finance laws in place, or supporting politicians from the existing bipartisan pool who share its ‘moral values,’ are slim to none outside of a few local races.

Agree that any appearance co-option by the party would dissolve what momentum is possible quickly, but I'm also reminded of watching the tea party in 2010 with their litmus tests and the "other" kind of influence they had on the elections (Sharon Angle, O'Donnell come to mind).  Anti-establishment and in the spotlight only gets you so far.  The tea party's influence on 2010 wasn't so much the candidates they ran and it definitely wasn't their independent fundraising as a "movement," but the exponential effect they had on disappointment with the Democratic Party.  They got out the vote.  Much more could be said about the decline of tea party popularity since.  Was it always going to fade, or are they paying the price for a hard line approach that a majority of voters now blame for gridlocked government? 

So you can't run your own candidates in 2012, but you can find issues or even specific legislation to rally behind.  Does a candidate have to be right on every issue to get some support, or can a candidate be right on the most important issues and draw the crowd?  And what about influencing members of congress throughout the campaigns?  You're not getting the ear of a single Republican, no question. 

I'm not sure the right answers for the movement.  Questions of where things could go and the role of Occupy in 2012 seem almost two separate dilemna's, yet in the end they'll be tied together.

Without a tangible influence of some kind in 2012, we won't be hearing much about Occupy after the elections.  Unfortunate reality, sure, but still the case.  Anyway, go speak your mind.