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Yesterday I got yet more campaign mail from State Senator Ida Ruben’s campaign. This one got my attention: it charged “Jamie Raskin: He’s not even a real Democrat.”

Ruben’s mailing said “Check the facts.” So I did. I don’t doubt that Raskin’s site already has or will have a rebuttal of its own, but here’s my independent one. As ever, full disclosure: I’m a Raskin supporter.

The “evidence” for the Ruben campaign’s allegation takes the form of three court cases Raskin has helped prepare or issue amicus curiae briefs for — Perot et al v. FEC et al (1996), National Committee of the Reform Party of the United States of America et al v. Democratic National Committee et al (1999), and Scheidler et al v. National Organization for Women et al (2003).*

In his capacity as an attorney, Raskin worked on behalf of Ross Perot, Perot’s “Reform” Party, and Scheidler, respectively. The first two cases center on a third party’s entitlement to equal treatment by the FEC — could Ross Perot expect to be included in presidential debates, and was his party entitled to damages for alleged major party misconduct — while the third deals with whether an anti-abortion group can be charged with racketeering for its protests near abortion clinics. While Raskin’s side lost the first two cases, his side won the Scheidler case with a decisive 8-1 Supreme Court majority.

While the specifics of each case are interesting, I think the main point here is that Raskin was doing an important job for democracy in each case: asserting the legal and Constitutional rights of a client in federal court. If that’s beyond the pale for a “Democrat”, the party ought to change its name to something else — perhaps “Equal Rights For Us But Not For Them Party.”

Of course nobody forced Raskin to involve himself in any of these cases. I think he did so because in each case, there were fundamental issues at stake that transcend partisan politics or legal tactics. There is nothing sacrosanct about the current two-party system — if there were, there’d be some mention of it in the Constitution. There is nothing sacrosanct about a business’s ability to conduct its affairs without interference of any kind — if there were, the Greensboro sit-ins couldn’t happen any more. Details on each case follow.

Perot et al v. FEC et al
Raskin was associated with Perot’s team here. Perot was arguing that the FEC “unlawfully delegated legislative authority to a private, non-profit corporation, in violation of Article I of the Constitution,” that corporation being the Commission on Presidential Debates (CPD). The occasion of the complaint was the CPD’s decision that “since no candidate other than President Clinton or Senator Dole had a realistic chance of being elected, and that, therefore, only those candidates and their vice-presidential running mates, would be invited to participate in the debates.”

An FEC synopsis of the case suggests to me that Raskin’s crusade against corporate contributions was already underway in this case, although the donations involved here were to the CPD. At any rate, that aspect of the case was no longer at issue in the decision Ruben cites.

Now of course there’s no getting around that Raskin was working on behalf of a third party here. My question is: so what? Some day, after all, it might be the Democratic Party on the outside looking in. (Hmm.) I should hope the Democratic Party is never reduced to having to block third party access to presidential debates. While I personally thought excluding Perot from the ‘96 debates was OK, I’m also quite sure I haven’t given it as much thought as Raskin has. At any rate, even as a fairly partisan Democrat I certainly don’t hold it against anyone that they would feel differently and argue the case.

Reform Party et al v. Democratic National Committee et al
“Et al” can conceal a lot of stuff. In this case, what the second one conceals is

REPUBLICAN OPINION NATIONAL COMMITTEE; DOLE FOR PRESIDENT, INC.; STATE CENTRAL COMMITTEE OF THE CALIFORNIA DEMOCRATIC PARTY; STATE CENTRAL COMMITTEE OF THE REPUBLICAN PARTY; FEDERAL ELECTION COMMISSION; DOLE/KEMP ‘96

I.e., this wasn’t a case against Democrats, it was one against Democrats and Republicans. As the court’s decision (against Raskin’s side) described it,

This action raises a number of challenges to the two principal federal campaign finance laws: the Federal Election Campaign Act of 1971 (”FECA”), 2 U.S.C. SS 431-55, which limits contributions to and spending on federal election campaigns, and the Presidential Election Campaign Fund Act (the “Fund Act”), 26 U.S.C. SS 9001-13, which funds presidential campaigns according to the percentage of the vote their parties received in the prior election.

Was Raskin’s side right or wrong on the merits? I don’t know; I guess they weren’t, since they lost, but finding that out is what the courts are for. Was he wrong to help bring the case? Of course not. Was he acting against the Democratic Party? I suppose you could say so — but then you ought to acknowledge that Republicans were defendants as well; this was work on behalf of a third party, pure and simple. If the two party system is part of the Democratic Party platform, this is the first I’ve heard of it.

There’s a related point of accuracy to be made here. While Raskin’s presumably not happy about it, his side lost both these cases — so Raskin has had nothing whatsoever to do with Democrats having “a hard time winning national elections lately,” as Ruben’s flier would have it.

Moreover, even had Perot et al or the Reform Party et al won these cases, Ruben can’t know that would have materially hurt the Democratic Party. Perot’s presence at the debates probably would have made little difference to Clinton’s handy victory in 1996. And both in 1996 and 2000, it’s not clear to me whether a boost to Perot would have helped or hurt Democrats. At any rate, that’s not a constitutional issue, and protecting the Constitution comes before calculations of partisan benefit.

Scheidler et al v. National Organization for Women et al
This one starts out a little touchier, but I think Raskin was right on the merits of the case. As the online court site” oyez.org” summarized it, the question was “Do abortion opponents, who protest at abortion clinics, commit extortion within the meaning of the Hobbs Act? May abortion supporters obtain injunctive relief in a civil action pursuant to the Racketeer Influenced and Corrupt Organizations Act?” [a.k.a. RICO -- ed.] From the “oyez.org” summary of the case:

In an 8-1 opinion delivered by Chief Justice William H. Rehnquist, the Court held that abortion opponents did not commit extortion because they did not “obtain” property from the abortion supporters as required by the Hobbs Act. The Court further held that is first holding renders insufficient the other bases or predicate acts of racketeering supporting the jury’s conclusion that the abortion opponents violated RICO.

(Emphasis added.) Unlike the first two cases (as far as I can tell), it’s possible to isolate particular arguments Raskin made in this one, which help show what his motivation might be for taking the case. While one may wish that abortion opponents were not as disruptive and harassing as they often are, I think that Raskin makes good points in his brief, for instance:

Even the most minimal intrusions upon property interests — those merely sufficient to give rise to a cognizable apprehension of loss of business — would become predicate acts of “extortion” sufficient to subject protestors to federal racketeering judgments, since such conduct would deprive the business of an intangible right to operate free of disruption. The federal courts should not read a federal statute this broadly without clear authority from Congress.

(”Predicate acts” is a legal term of art under RICO.) For purposes of arguing with the Ruben campaign, the point here is that clearly Raskin is not standing with pro-life groups particular methods (or their stance on the right to choose abortion). Rather, he was arguing that the “racketeering” remedy was too broad, endangering even less disruptive tactics by any group protesting against a given business.

No one was arguing that assault or trespass charges shouldn’t be brought when appropriate. But racketeering charges are a serious and — so the Supreme Court held — an inappropriate escalation of legal firepower against such tactics. I’ll bet J. Edgar Hoover would have loved to use RICO on the Greensboro sit-ins, or on civil rights activists “disrupting” businesses with their boycotts and marches.

Conclusion
Everyone can draw their own conclusions based on the facts about these cases, and on one’s own convictions about what it means to be a Democrat — and an American.

For my part, I think that far from being a blemish on Raskin’s record, his involvement in these cases tells me he’s just the kind of Democrat I want: someone who defends all Americans’ constitutional rights without fear or favor. I’d rather lose with that platform than win with its opposite. Maybe all’s fair in love, war, and politics, but this mailing by the Ruben campaign was not their finest hour.

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UPDATE, 8/10: Raskin campaign response, and separate explanation of Raskin’s views on each case. From the campaign response:

Ida Ruben owes an apology, not only to Jamie Raskin and his family, but to the many Democratic leaders and Democratic organizations that have endorsed Raskin’s surging and positive campaign. In fact, Ruben owes an apology to all Montgomery County voters for defiling the political process, dividing the Democratic Party in this way and insulting our intelligence. Montgomery County voters are not stupid, and we expect much, much better from our public servants.

Raskin on the Scheidler case:

There is a difference between misdemeanors and felonies, and that difference is crucial for political protest and labor picketing to survive in America. I was not about to let us turn non-violent picketers into mobsters even if it meant intervening in a case where anti-choice zealots, whose politics I abhor, were the parties. You don’t pick and choose which cases go to the Supreme Court and you have to stand up for the principle involved. I would gladly do it again and am proud that we won.

The writeups of the other cases are equally interesting, and should permanently put to rest any reasonable person’s concerns. The Raskin campaign is urging people to mark the fliers “Return to Sender/No Negative Politics Accepted” and put them back in the mail.