Fever Swamp: A Journey Through the Strange Neverland of the 2016 Presidential Race

by Richard North Patterson

  Take background checks. The current law exists to prevent felons, fugitives, domestic abusers, and the adjudicated mentally ill from purchasing weapons. This is no small matter: in 2013, for example, 61 percent of women killed with guns were killed by intimate partners; in 57 percent of mass shootings, one of the victims was the shooter’s partner or family member. Since taking effect in 1994, the law has blocked more than 2.4 million gun sales to dangerous people.

  Patently, this has nothing to do with taking guns from law-abiding citizens—it exists to protect them. But the law needs to be strengthened. Due to a gaping loophole that exempts gun shows and the Internet, roughly 40 percent of gun sales occur without a background check. That’s millions of guns every year—imagine what Republicans would say if the TSA failed to check 40 percent of airline passengers. And even the existing system is hampered by a process of record keeping that is badly underfunded.

  But Republicans have blocked absolutely all legislative efforts to strengthen the system, extend background checks, and close loopholes. Conspicuously, that includes Senators Rubio and Cruz. Just who are they protecting? No one but dangerous people who can’t pass a background check. Their rationale—that they are protecting gun rights from an oppressive government—is shamefully dishonest, the fig leaf of a political lapdog.

  And shamefully typical. Days after the terrorist attack in San Bernardino killed fourteen people, the House and Senate considered a bill to ban the sale of guns and explosives to people on the FBI’s terrorist watch list. After the NRA opposed the measure, the legislation was voted down by all 241 Republicans in the House, and 53 of 54 Republican senators—including Ted Cruz and Marco Rubio.

  At the time, President Obama asked, “What could possibly be the argument for allowing a terrorist suspect to buy a semi-automatic weapon?” Rubio’s answer? He was worried about “people that basically just have the same name as everybody else, who don’t belong on the no-fly list.” Incredibly, Rubio claims to be more concerned about bureaucratic error than allowing terrorists to buy weapons of mass murder.

  The GOP’s duplicity and hypocrisy is exposed by another favorite excuse—that the problem is not guns but mentally ill people with guns. “The country,” Rubio says, “should examine mental illness.”

  By this logic, the GOP would want to extend background checks on the mentally ill by closing the gun show loophole—which, of course, it opposes. But there is more. As part of a relatively modest gun safety measure, in 2013 Obama proposed to increase funding for mental health programs designed to identify and help people who are potentially dangerous. At the behest of the NRA, Republicans in the Senate killed it. Note here an ironic coda—two weeks ago, an Idaho pastor who appeared with Ted Cruz was gravely wounded by a shooter with a history of mental illness. But there is no incident, however personal, that causes Republican politicians to reflect on their obedience to the gun lobby.

  Indeed, another important part of the Republican cover-up is to help the NRA suppress research into the cost and causes of gun violence. This is critical to deceiving the American public—to the gun lobby, facts are more deadly than bullets.

  Thus for twenty years Republicans in Congress have banned the Centers for Disease Control and Prevention from conducting basic research into gun violence and its impact on public health. No other research topic is subject to a ban—which Republicans in Congress extended yet again in December 2015. The reason is simple: the NRA fears the research will refute its propaganda against gun safety laws and expose its bogus claims that measures like concealed carry laws save lives.

  Little wonder—a recent research project showed that, since 2007, 763 people were killed by shooters with concealed carry licenses, including 29 mass killings that took 139 lives; the murder of 17 police officers; and, ironically, 223 suicides. Only after he left Congress did the NRA’s point man, Republican congressman Jay Dickey, admit that “I wish we had started the proper research and kept it going all this time. I have regrets.” Adds Dickey, “If we had somehow gotten the research going, we could have somehow found a solution to the gun violence . . .” If the Republicans still in Congress feel any regret, they keep it to themselves.

  Indeed, at the insistence of the NRA, the GOP has enacted more, and more deadly, suppressions of potentially life-saving information regarding guns. A 2003 Republican-sponsored measure prohibits the ATF from releasing information to cities and states that would allow them to trace crime guns. This effectively prevents law enforcement agencies from examining patterns of gun trafficking to criminals or identifying crooked gun dealers linked to large numbers of gun crimes.

  Another GOP-backed provision frees dealers from submitting inventories to the ATF, allowing crooked dealers to supply guns to criminals and then claim they were “stolen.” Yet another provision requires the FBI to destroy within twenty-four hours all records of approved purchasers gained from background checks. This makes it very hard to retrieve guns issued to dangerous people by mistake—like Dylann Roof, the Charleston shooter—or from purchasers later shown to be criminals, mentally ill, or spousal abusers.

  A major cause of gun death is assault weapons. In 2004, Republicans in Congress voted to allow the federal assault weapons ban to expire. As the New York Times comments, “As a result, gun manufacturers have been allowed to sell all manner of war weaponry to civilians. Including the super destructive .50-caliber sniper rifle. . . . Why any civilian would need this weapon, designed to pierce concrete bunkers and armored personnel carriers, is a question that should be put to the gun makers who profit from them in the politicians who shamelessly do their bidding.”

  The Republicans’ only coherent answer is to cite the difficulty in defining an “assault weapon”—without, of course, entering into any effort to address the problem. Beyond that, they are reduced to insisting that Americans have the right to purchase any gun they want, up to and including military-style weapons designed for mass killing. But such guns are hardly necessary or even suitable for self-defense; as for hunting, their use on a deer would yield not a trophy, but ground venison.

  In truth, all that such weapons are good for is killing a lot of people quickly at close range. Which is why they were used by the shooters in the massacres at San Bernardino; Fort Hood; Sandy Hook Elementary School; Aurora, Colorado; Umpqua Community College in Oregon; and on and on. Offered a chance to rethink this after Sandy Hook, Republicans in Congress blocked an effort to renew the ban.

  As a result, gun companies are aggressively marketing military-style weapons to boost their profits. As the Times reports, their advertising says it all: “‘As Close as You Can Get Without Enlisting,’ reads one tagline under a photo of a poised shooter aiming the civilian version of a military rifle. An ad for a semi-automatic shotgun promises security whether in ‘Iraq, Afghanistan, Your Living-room.’ An ad for an armor-piercing handgun shows an embattled infantryman above the line: ‘Built for Them . . . Built for You.’”

  They will face no consequences for manufacturing unreasonably dangerous guns and selling them in ways that only enhance the dangers. Why? Because in 2004 a Republican majority in Congress passed one of the NRA’s top legislative priorities: a bill granting gun manufacturers and dealers—no matter how crooked—broad immunity from lawsuits in state or federal court.144

  Similarly, Republicans in Congress have blocked the Consumer Product Safety Administration from requiring that guns have even basic safety features. Cars and food and aspirin and kids’ toys must be made safer—only guns are sacrosanct.

  But there is seemingly no end to the NRA’s appetite, or the GOP’s servility. Recently, stymied by the Republicans in Congress, President Obama took modest administrative steps to try to strengthen background checks, expand access to mental health treatment, and improve gun safety technology. At once Ted Cruz rushed forward to claim that the president was proposing “taking away our guns.”

  But Marco Rubio equally captured the spineless servility of the GOP to the NRA’s dystop
ian demagoguery. President Obama, he claimed, “has waged war on the Constitution. He is obsessed with gun control.” He charged that Obama’s measures were “meant to further erode the Second Amendment.” But, of course, the ever-vigilant Rubio promised to protect us: “I believe that every single American has a constitutional—and therefore God-given—right to defend themselves and their families. . . . On my first day in office, behind a desk, don’t worry, those orders are gone.”

  For sheer fear-mongering and dishonesty, that is hard to beat.145 One wonders whether Rubio ever asks himself who will pay the price in blood for this kind of “leadership.” But if you want to define the word servility with pellucid clarity, you will not require a dictionary. Far better to contemplate Mitch McConnell.

  After President Obama nominated Merrick Garland to the Supreme Court, McConnell was asked if, as Majority Leader, he would permit a vote on Garland in the event that a Democrat won the presidency in November. McConnell flatly said that he would not. Here is his reason: “I can’t imagine that a Republican majority in the United States Senate would want to confirm, in a lame duck session, a nominee opposed by the National Rifle Association.”

  Truly, ineffably, servile.

  The annals of American politics are rife with self-serving hypocrisy. But the Republicans’ cowardly and contemptible servitude to the NRA stands alone in its cravenness and in its costs: the death and maiming of so many thousands of Americans, year after year, shattering families and inflicting the stain of violence on our country. And the GOP’s only answer is to promise us more.

  It is long past time for Americans to call them on it.146

  The Reckoning of 2016

  The Supreme Court and Reproductive Rights

  APRIL 5, 2016

  Whether you support Bernie or Hillary, how many of you want Republicans to abolish freedom of reproductive choice?147

  I thought so. But here’s the kicker—in much of the country, the GOP already has.

  For millions of American women, freedom of choice is writ on water. And if you abandon your party’s nominee, whoever that may be, millions more may suffer.

  By musing aloud about punishing women once the GOP completes its relentless drive to stamp out abortion rights, Donald Trump has reminded us yet again of the stakes in this election. On the issue of choice, as with so much else, our national reckoning is now at hand and cannot be wished away.

  Put simply, the president who selects Antonin Scalia’s successor will determine the future of reproductive rights. That is not hyperbole—it is already graven on the American landscape.

  Start with access to a safe and legal abortion. For the less privileged women in most American states, this right is close to extinction.148

  Across the country abortion clinics are closing at a record pace. A little over seven hundred remain—forty-three years after Roe v. Wade, 90 percent of American counties have no clinics at all. In a large swath of red states, 400,000 women of reproductive age live more than 150 miles from the nearest clinic. Five states—Mississippi, Missouri, North Dakota, South Dakota, and Wyoming—have just one.

  So how did this happen?

  A principal cause is GOP-sponsored state laws that shut down clinics by imposing unnecessary and onerous requirements. Some mandate prohibitively expensive renovations so that clinics resemble hospitals for no good reason—broader hallways, for example. Others demand that doctors performing abortions have admitting privileges at a nearby hospital—difficult at best, and impossible in areas where the hospital refuses.

  If these laws are upheld by the Supreme Court, the impact will not simply be to cement them, but to encourage the GOP to expand their reach into yet more states. And the obliteration of choice will proceed apace.

  The transparently bogus rationale for such laws is the tender concern of Republican legislators for women’s health. Yet abortion is one of the safest of all medical procedures, with a complication rate below 1/10 of 1 percent. By comparison, a routine colonoscopy is riskier. Oddly enough, there is no crusade within the GOP to stem the nightmare of colonoscopy.

  The real agenda, of course, is finding a palatable rationale for gutting Roe v. Wade. After the passage of one such law, the lieutenant governor of Texas tweeted a map of all the clinics that would have to close, capped with an exultant message: “We fought to pass S.B. 5 thru the Senate last night, & this is why!”

  Less exultant were the poor or rural women denied access to a safe abortion. In the name of women’s health, Republicans give these women three choices: bear unwanted children, travel sometimes prohibitive distances, or run the risk of an illegal abortion. One does not have to be a keen observer to fear for women when Republicans start protecting them.

  One very keen observer—a distinguished Republican federal judge—has sliced through the hypocrisy.

  Judge Richard Posner is a renowned conservative legal scholar.149 As a judge on the United States Court of Appeals, he was faced with a similar law from Wisconsin, requiring doctors at abortion clinics to obtain admitting privileges at hospitals within a thirty-mile radius—and to do so in three days. In an opinion striking down the law, Posner shredded the pretense that the Republican legislature was protecting women’s health:

  “Wisconsin,” Posner writes, “appears to be indifferent to complications of any other outpatient procedures, even when they are far more likely to produce complications than abortions are.” The alleged health concerns, he finds, are in fact “nonexistent.” In contrast the impediments to abortion are very real: “[M]ore than 50% of Wisconsin women seeking abortions have incomes below the federal poverty line. . . . For them a round trip to Chicago . . . may be prohibitively expensive. The state of Wisconsin is not offering to pick up the tab, or any part of it.”

  He then cuts to the quick. “A great many Americans are passionately opposed to abortion—as they are entitled to be. . . . Some of them proceed indirectly, seeking to discourage abortion by making it more difficult for women to obtain. They may do this in the name of protecting the health of women who have abortions, yet . . . the specific measures they support may do little or nothing for health but rather strew impediments to abortion.”

  Finally, Posner eviscerates the cynical pretense behind requiring admitting privileges—the usual method used to shut down clinics. This requirement, he writes, “cannot be taken seriously as a measure to improve women’s health because the transfer agreements that abortion clinics make with hospitals, plus the ability to summon an ambulance by phone call, assure the access of such women to a nearby hospital in the event of a medical emergency.”

  As a particularly egregious example of this legislative masquerade, Posner cites the Texas law praised by its lieutenant governor for its effectiveness in shutting down clinics. Which brings us back to the judicial stakes in this election—the constitutionality of that very law is now before the United States Supreme Court.

  The law reduced the number of clinics in Texas from forty to ten, all clustered in four metropolitan areas. No clinics are located west or south of San Antonio, an area larger than California. Yet despite—or perhaps because of—the fact that it places abortion out of reach for women in most of Texas, a conservative panel of federal appeals judges upheld the law. After all, the court said, women in West Texas could always travel to New Mexico.

  But the context for this law makes its impact even worse. Other Texas laws require most women to get a sonogram at least twenty-four hours prior to an abortion, from the same doctor, and require all abortions past sixteen weeks to be done in surgical centers—the nearest of which is in San Antonio. Ironically, the inevitable overcrowding of those clinics that remain has caused delays that, in some cases, mean that women seeking an abortion pass the sixteen-week deadline—a nasty Republican catch-22.

  The legal test for such laws is clear: whether they impose an “undue burden” on a woman’s right to an abortion under Roe v. Wade. Obviously, they do—as the Texas law exemplifies, their impact is not simp
ly “undue,” but draconian.

  Yet at the hearing before the Supreme Court, the justices appeared to be divided 4–4, with the four Republican justices—Roberts, Alito, Thomas, and Kennedy—in favor of upholding the law. Such a tie will leave Texas’s anti-choice scheme in place.150 And had Scalia lived, there is no doubt that the Court’s ruling would have protected such laws in every state that has passed them—including the Wisconsin law struck down by Judge Posner.151 As matters stand, freedom of choice for millions of American women hangs in the balance, awaiting the selection of the Court’s ninth justice.

  There could be no better illustration of how critical it is that a Democrat appoint Scalia’s successor. Yet this same term provides another example—a case that threatens to limit access to contraception under the Affordable Care Act (ACA).

  Under a prior ruling of the Roberts Court, an employer can claim a religious exemption to the ACA’s mandate to provide contraception as part of an employee’s health insurance plan. To opt out, all the employer need do is notify the Department of Health and Human Services that it will not subsidize a plan that offers contraception. At that point, the government can require the insurer to offer contraception using funds not derived from the employer who objects.

  One would think this would satisfy employers who object to contraception. Not so. Seven religiously affiliated employers brought suit challenging this compromise, claiming that being required to opt out of providing contraception in itself violates their religious freedom. Or, more starkly, that their concept of religious freedom entitles them to block the government and their insurance company from providing contraception to their employees.

  Remarkably, the Supreme Court hearing made it clear that the same four Republican justices agree. Their sole concern was Orwellian: that by requiring the employers to opt out of providing contraception, the ACA was making them complicit in the provision of contraception by others.152