ACA ruling proves Roberts #SCOTUS most politicized in history

Published at thePhoenix.com

The Roberts Court is — it can now be said most confidently — the most political in American history. Today’s surprising — to almost everyone — upholding of the Affordable Care Act is proof that it’s even more politicized than we thought.

If the decision had gone the way most people expected — with Chief Justice John Roberts Jr. siding with the majority to overturn large portions of ACA (or the whole thing entirely), Democrats and Republicans would have (rightly) viewed the Roberts Court as an arm of the Republican Party’s ultra-conservative wing.

The Court’s standing in public opinion, and the respect for the institution across America, would have collapsed. Its impotence might have echoed the darkest days of the Marshall Court, when President Andrew Jackson apocryphally said of the 1832 Worcester v Georgia decision, “John Marshall has made his decision; now let him enforce it.” (That’s not actually what Jackson said, but it’s close.)

Roberts is a scholar of Court history, and knows well the perilous ground on which he treads. So in a startling move that landed him far to the political left of Justice Anthony Kennedy (who uncharacteristically took up an absolutist right-wing opinion), Roberts moved to save his Court — and his reputation — from certain denigration with the epithet “politicized.”

Unfortunately, the nature of his decision — because it was based not on Constitutional scholarship nor case law nor even the arguments in the case before the Court — was political, and most cravenly so. He ruled on a major issue of law and principle for reasons of reputational and political ends.

So in seeking to protect the Court from allegations that it was overly political, Roberts has in fact confirmed what he sought to disprove.

Press Releases: Back to the polls

Published in the Portland Phoenix

The debate about how to phrase the same-sex marriage question on November's ballot has just begun, with Maine Secretary of State Charlie Summers proposing a very simple option: "Do you want to allow same-sex couples to marry?"

Of course opponents have objected, saying those words don't say anything about the societal catastrophe they are sure will follow its passage. But more oddly — and, it turns out, potentially against their self-interest — supporters of same-sex marriage also want the question revised. Specifically, according to Mainers United for Marriage leader Matt McTighe, they want it to ask: "Do you favor a law allowing marriage licenses for same-sex couples that protects religious freedom by ensuring no religion or clergy be required to perform such a marriage in violation of their religious beliefs?"

The polling to date suggests Summers's version of the question is (perhaps unintentionally, given his open opposition) better for marriage proponents. In March, Public Policy Polling asked, "In general, do you think same-sex marriage should be legal or illegal?" Results were 54 percent in favor, 41 opposed, and 5 percent unsure (with a 2.8-percent margin of error). In April the Maine People's Resource Center asked people's opinion on "allowing same-sex couples to be legally married in Maine" and found 58 percent for, and 40 percent against (with an error margin of 3.1 percent).

The March PPP poll also asked the question McTighe's way, and found less support (as well as less opposition and more undecideds): 47 percent for, 32 percent against, and 21 percent not sure. The WBUR poll earlier this month also asked McTighe's question, and also found support weaker than Summers's more straightforward version: 55 percent in favor, 36 opposed, and 9 percent declining to answer (with a margin of error there of 4.4 percent).

So advocates appear, at the moment, to be requesting a ballot wording that gives them less support, in hopes that the lower opposition and greater undecided pool will allow them to prevail over the religious opposition. Maine media, so far, have treated the two questions — in poll terms, at least — as functionally the same. They're not. McTighe knows it, Summers knows it, and most importantly, the people facing the questions know it — that's why they answered differently to the different questions. Sadly, it's journalists who appear last to find out.

Maine political writers are also overlooking a major flaw in the WBUR poll (which has gotten criticism for other reasons, but not this one): Andrew Ian Dodge isn't one of the options. In a different question, pollsters asked: in the Senate election, "if the candidates were Independent Angus King, Republican Charlie Summers, or Democrat Cynthia Dill, for whom would you vote?"

The name order was rotated in the actual questioning. But Dodge should have been there. He's the Tea Party-backed candidate who dropped out of the Republican Party to run as an independent, and was first into the race, setting up to challenge Olympia Snowe before she announced her retirement.

While he's widely believed to have little chance of winning, the Tea Party vote is least likely to migrate to any of the other three, and shows an element of the Maine electorate that — whether you agree with it or not — holds sway in some areas.

By the way, the WBUR poll also neglected two other independents: Steve Woods, who has already capitulated to King, and Danny Dalton, only recently located for an interview with the Associated Press — his official address on file with the Maine Secretary of State's office is a Mail It 4U store in Bath.

Their absence was technically incorrect — their names will appear on the November ballot — but had negligible effect on the survey, as they will in the election itself.

Human Relations: Encounter with a racist

Published in the Portland Phoenix

I've never really liked racists. Today, I see a little value in them after all.

Last week, Shay Stewart-Bouley wrote a column called "Let Them Talk," which began, "I have often joked as a Black woman that I kind of like white racists. Well, perhaps it's more that I appreciate white people who are open and honest about racist views they harbor. I don't want to hang out with them, but I want to know about them. When someone is openly racist and drops racist epithets, it saves me the time of wondering what is really on their mind when they deal with me."

When I first read that, it made some sense to me — as a sort of "truth in advertising" concept. I got a chance to explore that idea further this afternoon, when an extremely upset woman called the office, starting right out of the gate by complaining about that latest column.

In a breathless, near-hysterics tirade, this woman — who refused to give her name, so I'll call her Blanche — claimed to have deep roots in Maine and to have never seen "those people" unless she "went out of state." She would not say the words "black" or "African American" for nearly the entire call — saying only vague terms like "they" or "them." I kept pressing her on whom she was referring to with those vague terms, even going so far as to ask if she meant black people or African Americans (or Asian Americans or Hispanic Americans, I wondered). Blanche assured me I "wouldn't like it" if she said who she meant. (At one point she did spell out "b-l-a-c-k," though.)

She spouted several old canards used by racists, including complaining that "those people" have access to housing, health care, and food, when so many "real Americans" are poor, hungry, and homeless. She complained that "they keep having them" — exactly the sort of vagueness that characterized her sustained outburst. A clarifying question from me got the answer "pickaninnies." (If you're lucky enough not to know that word, it's an offensively derogatory term for African American children.)

I clarified a couple of times with Blanche that she was calling to complain about a column discussing the existence of overt, unapologetic racism. And then I told her I believed she was in fact living confirmation of this very point.

In fact, I called her a racist several times during the conversation, and not once did she dispute my assertion. Rather, much as the column that inspired the outburst suggested, it prompted further disclosure of Blanche's prejudices, as she inveighed against treating "those people" like the human beings they are: "It's not right — you know it isn't right."

Blanche asked why Stewart-Bouley "had to write about" racism and discrimination; I explained that the column is about diversity, and she's free to write on any angle of that broad topic, whether positive or negative.

She also attempted to attack Stewart-Bouley personally, saying she "isn't from here. We don't have those people here. We never had those people here." She asked why Stewart-Bouley would live here and choose to raise a child here, as if Blanche's prejudice was not only justifiable but also should somehow act as a black-person repellent.

When Blanche complained about things not being "right," she has a point, though what's wrong is not on Stewart-Bouley's end of things. After spending 18 minutes getting increasingly apoplectic, the rant came to a head with this line: "You tell that woman to get her black ass back to Africa." I told her: "Get your white ass the fuck out of the Dark Ages." I'm not sure how much of that she heard, though, because she hung up on me. Perhaps I should have said what Stewart-Bouley might have in a more philosophical moment: "Thanks for being a senseless relic — and an example of how far Maine still must progress before joining this millennium."

What killed the Jetport’s summer series?

Published at thePhoenix.com

In the wake of near-immediate outcry objecting to the terms of a proposed musical series at the Portland International Jetport, the summer-long program was canceled the day after it was announced. The proposal — and the backlash — brought complaints from many corners of the city’s music scene, and may suggest a possible growth area for the Portland Music Foundation, a non-profit established in 2007 to help musicians improve their business and promotional skills.

But first, a brief run-down of the events. On Thursday, a call went out online and over social media for musicians interested in playing at the Jetport over the course of the summer, with terms laid out on the website of event sponsor Dispatch Magazine, including the compensation: “free parking” and in-airport meal vouchers. Performers could sell their CDs and any other merchandise, but would have to pay 30 percent of the revenue to the jetport’s concessions company, Paradies Shops.

The lack of pay for performance, as well as the high commission rate on sales, quickly attracted objections online. Brian D. Graham, saxophonist of Sly-Chi and the Fogcutters, has two Facebook threads on the topic, each with more than 50 comments; pianist Kelly Muse authored an open letter that was signed by 17 other local musicians. Amid efforts to change the deal to be better for musicians, the jetport “pulled the plug,” Frank Copsidas said Friday afternoon, going on to blame the complainers for the event’s cancellation. (Jetport director Paul Bradbury says there wasn’t time to resolve the “miscommunication issues” before the series’s June 28 start date.)

Graham says he actually liked the idea, until he learned about the compensation terms from the website. And there was some misunderstanding about what the terms actually were.

Portland Music Foundation president Pat May said his group agreed to help publicize the call for artists with the understanding that performers would have their CDs sold in the jetport gift shop all summer long, and “there is some type of stipend.”

Frank Copsidas, the owner of Dispatch Magazine, who also serves on the PMF board, said those were good ideas but became impossible. “We were trying to get a sponsor to give stipends. Nobody will come to the table,” he said Friday, before the event was canceled outright. And CDs could only be placed in the gift shop for a few artists, he said, due to lack of space and the fact that the bar codes for local artists’ CDs were not in the store’s existing database.

Bradbury, at the jetport, says when Copsidas came to him with the idea, the jetport saw it as a way to provide musicians free advertising, while entertaining passengers waiting for their flights. He says musicians didn’t have to sell anything, but if they did, Paradies’s commission would apply.

But there remained the question of whether the musicians would be compensated for their performance. Oddly, nobody had thought to ask if players could put out a hat for donations until after the series was announced. (Bradbury says he’d have to seek legal advice, in part because the performers would be in a secure area of the jetport.)

In any case, Copsidas’s view was that the merchandise sales should be enough. “If they can’t really sell 20 CDs to 1000 people there over the three hours, that’s pretty bad,” he said. “Two percent should be the lowest that you sell.”

He said he was planning to spend about $5000 on a stage, sound system, and a person to run the audio, and was unwilling to spend more to pay the musicians. May said paying each of the projected 28 performers even $100 would use up most of the PMF’s bank account.

And in the wake of the cancellation, Copsidas, obviously upset, took to Graham’s Facebook page, beginning a series of posts with this line: “Brian, you single handedly set back the Portland music scene about a year in getting any kind of corporate support so that shows like these can pay.”

(In an interview with the Phoenix, Copsidas was similarly blunt: “Is it the best opportunity? No. You should be paid” but blamed the lack of funds on local businesses and musicians themselves: “No business in this town is willing to put money behind the artists. That’s a problem the artists have created for themselves in this town.” In a Monday website posting, he suggested applying to the Maine Arts Commission to underwrite such a program.)

May, for his part, wrote a letter of explanation and apology, posted Sunday to the PMF website, admitting that the group didn’t do a good job explaining what the situation was, nor why group organizers thought it would be a good idea. He called it “a case study in how poor communication can wreck a good idea.”

Bradbury says the jetport is very interested in having something like this happen in the future, so perhaps it’s not completely wrecked.

In fact, it presents an opportunity for the PMF that May intends to capitalize on, writing that he wants members’ feedback on how to make future efforts more successful.

Given Copsidas’s statement that “This was meant for younger artists trying to establish themselves. There was no budget for anything else,” and his claim that as many as 25 musicians expressed interest, it seems clear there’s plenty to do.

Graham says those younger artists need to know how to evaluate proposals like this: “The up and coming people are the most important people to be educating. They need to know that if you’re going to perform you need to be compensated. You can’t just give it away.” People who perform for free lower the ability — and rates — for others to get paid, and in the end undercut their own hopes of earning money in the future, he says: “You’re ruining your career.”

But PMF seminars on the topic may not be well attended, given the organization’s history. Some recent sessions have had small audiences, even for opportunities to talk with big names in the music business.

Copsidas says “nobody goes to them. (Musicians) don’t want to hear they have to work.” He went on to say local musicians are "lazy" about taking advantage of money-earning opportunities. He added that negativity can hurt: complaints about "opportunities" like this are "exactly why sponsors won't come on board; because they're afraid (people will) bitch about the sponsors."

Then again, if musicians were getting paid for their performances — and not just for their merchandise — it’s hard to see what the bitching would be about. “People would never think to ask a plumber to work for free. . . . That’s the mindset we need to break,” Graham says.

Summer in the City: In post-drinking death, is anyone responsible?

published in the Portland Phoenix; co-written with Chelsea Cook

Conflicting reports about why exactly Nathan Bihlmaier was asked to leave RiRa on the night of May 19 — whether he was drunk, whether he was behaving inappropriately toward another patron, or whether he stumbled over some musical equipment — leave questions about responsibility on nights out in the Old Port.

Bihlmaier, 31, was due to graduate from Harvard Business School just days after his celebratory evening out with friends; instead he was found dead in the water near Custom House Wharf, leaving behind his pregnant wife.

The police account has Bihlmaier, 31, being asked to leave because he was visibly intoxicated, a condition that under state law requires ejection from a bar. Bihlmaier's two friends did not accompany him when he left.

RiRa security manager Scott St. Ours has claimed Bihlmaier wasn't drunk, but rather was asked to leave after he tripped over some band gear (another early account also alleged Bihlmaier was bothering another customer). Despite the claim of sobriety, St. Ours says he walked "a block and a half" with Bihlmaier and twice attempted to get him a cab. (Sauschuck says security video shows St. Ours and Bihlmaier leaving together, and St. Ours returning to the bar within 30 seconds.)

According to the law, Bihlmaier was responsible for himself. But an inebriated person — particularly if determined to be so by a trained staff member of a bar — by definition has impaired judgment. Leaving an impaired person to their own devices could be construed as negligence. And courts have held that bars that sell alcohol to people who are already obviously intoxicated — are at least partially responsible for any negative aftermath. (Sauschuck has said he does not believe RiRa staff did anything illegal, and has said RiRa employees are assisting with the investigation.)

"It's a shared responsibility, between the person and the bar," says Doug Fuss, owner of Bull Feeney's and president of the board of directors for Portland's Downtown District (PDD). Fuss is also a former chair of the Nightlife Oversight Committee (NLOC), which has been instrumental in making rules for both bar owners and patrons.

The guidelines were established in 2008 based on the feedback of bar owners and security personnel, and include specific regulations, one of which is that management must designate floor staff to look for and interact with visibly intoxicated customers. Maine law says, "No licensee [of liquor] shall permit or allow visibly intoxicated persons to remain on the licensed premises," but isn't helpful about explaining how to eject someone in a way that doesn't incur liability if something bad happens afterward.

Fuss says NLOC, the PDD, and the police have been meeting recently to devise solutions for handling visibly intoxicated patrons. Fuss advocated personal responsibility and the "buddy system," as well as using a cab, while recognizing the complications that could arise in either scenario, as happened with Bihlmaier.

Laurence Kelly, owner of Brian Boru, shared ideas as well, including a potential helpline or phone number that would act similarly to Homerunners, a designated-driver car service.

"Talking to and assessing the customer's state is the best way. If we see someone staggering or not responding, take them outside and stay with them," Kelly says. A more out-there idea apparently batted around was the laughable — and ugly — idea of putting a chain link fence around the harbor. Either way, it's time for patrons and bar owners to bridge the gap between law and common sense.