Jamie Raskin and Marge Baker Unpack the McCutcheon Case

Two days after the Supreme Court issued its ruling in McCutcheon v. FEC, PFAW Senior Fellow Jamie Raskin and Executive Vice President Marge Baker held a telebriefing with PFAW members to discuss the case – and what Americans can do about it.

Jamie noted that with the fall of the overall, or "aggregate," contribution limits, we are now past the midpoint in right-wing efforts to dismantle our nation's campaign finance laws. We've seen the same five conservative Justices strike down efforts to promote viable public financing of campaigns and open the door to unlimited corporate expenditures to affect elections. Left untouched – so far – are base limits (the cap on the amount you can give to a particular candidate) and laws against coordinating certain political expenditures.

Jamie also criticized the Court's absurdly cramped reading of the First Amendment, such that campaign finance laws can only be justified if they are intended to prevent real or perceived "quid pro quo" corruption, which is essentially bribery. Perhaps the next question for the Roberts Court will be whether any campaign contribution limits can be upheld as long as there are bribery laws on the books.

Marge Baker was also on the call, fielding questions from PFAW members, several of whom had participated in the rallies nationwide that were held on Wednesday in response to the ruling. A couple of major themes kept coming up:

  • Efforts to mitigate these rulings by legislation or regulation and more comprehensive efforts to reverse them completely by constitutional amendment are complementary. As people organize to advocate for an amendment, they also create the political landscape needed to enact the remedial provisions.
  • When you vote for president and senator, you are casting a vote that will determine who sits on our nation's courts. McCutcheon may have been issued this week, but it was set in motion by the elections that allowed those five conservative justices to be nominated and confirmed.
  • The issue is much greater than whether campaign finance laws address "quid pro quo" corruption. The issue is the health of our democracy. When a tiny elite of powerful, super-wealthy individuals have an outsized role in selecting and influencing our elected officials, drowning out the interests of everyone else, this poses a grave danger to our democracy – a danger that Americans around the country are increasingly recognizing and doing something about.

Listen to call here:

Add your voice to the movement to get big money out of our elections here.

For more information on what you can do to help preserve our democracy, check out our Government By the People activist toolkit.



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PFAW

Postcard from Arizona to John Roberts: Money Corrupts

In a week in which the Supreme Court turned a blind eye to the reality of money corrupting politics, a story out of Arizona provides a clear example of the insidious influence of the private prison industry and its campaign contributions. 

Arizona has been at the forefront of bad prison policy and big profits for private prison companies. People For the American Way’s 2012 report, “Predatory Privatization: Exploiting Financial Hardship, Enriching the One Percent, Undermining Democracy,” explored how Arizona officials’ political and ideological commitment to prison privatization overrode good policy and common sense. Unbelievably, faced with evidence that privately run prisons were costing taxpayers more, not less, than state-run prisons, some legislators moved to stop the state from collecting the data.

This February, we wrote about Politico’s coverage of the private prison racket. “Companies that manage prisons on our behalf have abysmal records,” author Matt Stroud asked, “So why do we keep giving them our business?” One answer is that the industry spends a fortune on lobbying and campaign contributions.

This week’s story shows how those investments can pay off. According to the Arizona Republic, House Appropriations Committee Chairman John Kavanaugh tried to slip a last-minute $900,000 earmark for private prison giant GEO Group into the state budget. The company is already expected to get $45 million this year under contracts with the state that guarantee the company at least a 95 percent occupancy rate, “virtually ensuring the company a profit for operating its prisons in Arizona.” The state Department of Corrections said the extra money isn’t needed, but Kavanaugh heard otherwise from the company’s lobbyists. GEO executives gave Kavanaugh more than $2,500 in 2012.

The good news is that the Senate Appropriations Committee dropped the extra funding “following an uproar of criticism from Arizonans.”

PFAW

In McCutcheon Decision, Talk of Constituents Seems Out of Place

Chief Justice Roberts caps his opinion in McCutcheon v. FEC by waxing eloquently about the need to ensure that elected officials are responsive to the people. This and other cases have described campaign contributions as a way to promote such responsiveness. But considering that this case is about a non-constituent buying influence in elections across the country, the passage's repeated references to constituents seems strangely out of place:

For the past 40 years, our campaign finance jurisprudence has focused on the need to preserve authority for the Government to combat corruption, without at the same time compromising the political responsiveness at the heart of the democratic process, or allowing the Government to favor some participants in that process over others. As Edmund Burke explained in his famous speech to the electors of Bristol, a representative owes constituents the exercise of his "mature judgment," but judgment informed by "the strictest union, the closest correspondence, and the most unreserved communication with his constituents." Constituents have the right to support candidates who share their views and concerns. Representatives are not to follow constituent orders, but can be expected to be cognizant of and responsive to those concerns. Such responsiveness is key to the very concept of self-governance through elected officials.  (emphasis added, internal citations removed)

Shaun McCutcheon – whose contributions are at issue in this case – told the Court that he wanted to make contributions of $1,776 to each of more than two dozen different congressional candidates (as well as to various party committees) during the 2012 election cycle. It seems unlikely that he could have been a constituent of more than two dozen different members of Congress.

Obviously, people have a First Amendment right to participate in congressional races outside of where they live. But a stirring paragraph about political responsiveness to constituents hardly seems appropriate in a case that is all about political responsiveness to non-constituents.

PFAW Foundation

Supreme Court's McCutcheon Decision is Great News for Billionaires

The Supreme Court's McCutcheon opinion, released this morning, is another 5-4 body blow to our democracy. To justify striking down limits that cap aggregate campaign contributions during a single election cycle, the Roberts Court ignores the way the world really works and makes it far more difficult to justify much-needed protections against those who would purchase our elections and elected officials.

Americans are deeply concerned that control of our elections and our government is being usurped by a tiny sliver of extremely wealthy and powerful individuals (and the corporations they control). That is not the democracy that our Constitution established and protects. The enormous impact of money in politics can destroy a democracy, undermining its foundations by disconnecting elected officials from the people they are supposed to serve and eroding the trust of the people in their system of government.

But the Roberts Court today stressed that campaign contributions can be justified under the First Amendment only if they address "quid pro quo" corruption – i.e. bribery – despite contrary pre-Citizens United holdings with a broader and more realistic vision. A democratic system rotting at its core – a government of, by, and for the wealthy – is not corrupt in their eyes.

If a wealthy person gives millions of dollars to a party (distributed to the party's multiple candidates and PACs across the country), he clearly exercises enormous influence over the laws that get passed. What the voters want becomes far less relevant, because it's the billionaire whose money is vital to getting elected. A government where elected officials allow a few plutocrats to have enormous access and influence over their policies is not an indication of a healthy government of, by, and for the people.

As Justice Breyer write in his McCutcheon dissent:

Today a majority of the Court overrules this holding [Buckley's 1976 upholding of aggregate limits]. It is wrong to do so. Its conclusion rests upon its own, not a record-based, view of the facts. Its legal analysis is faulty: It misconstrues the nature of the competing constitutional interests at stake. It understates the importance of protecting the political integrity of our governmental institutions. It creates a loophole that will allow a single individual to contribute millions of dollars to a political party or to a candidate's campaign. Taken together with Citizens United v. Federal Election Comm'n, 558 U. S. 310 (2010), today's decision eviscerates our Nation's campaign finance laws, leaving a remnant incapable of dealing with the grave problems of democratic legitimacy that those laws were intended to resolve.

Americans are organizing around the country to restore our democracy in light of Citizens United and other dangerous court opinions. Today's McCutcheon opinion gives us another reason to rally.

Last year, People For the American Way Foundation released an analysis of McCutcheon within the context of the Supreme Court's past rulings on campaign finance.

PFAW Foundation

New Hampshire Campaign to Become 17th State to Call for Amendment to Overturn ‘Citizens United’ Stalls

Rising from her chair in the Senate chamber of the capitol building in Concord, New Hampshire – the country’s oldest chamber still in use, housing democratic debate since 1819 – State Senator Martha Fuller Clark (D-21) was unequivocal in her warning:

Citizens United is threatening our citizen-led legislature.”

Senator Clark’s words came yesterday afternoon as she spoke out in favor of SB 307, a bill that she introduced.  The legislation calls for a committee to examine the different constitutional amendments that are under consideration in the 113th Congress that would overturn Citizens United.  But in its most recent form, SB 307 needed a corrective amendment to realign the bill towards its original intent. The amendment would have declared that the committee would assume a constitutional amendment was necessary and discuss which proposal would be best, rather than to debate whether or not a constitutional amendment was needed in the first place.

By this point, the people of New Hampshire had already conveyed, through organizing, through polling, through walking across the state in the dead of winter, through the 48 town hall meetings that had just passed Citizens United amendment resolutions earlier in March, that the debate was long over: the country needs constitutional reform, and it needs it now.

Unfortunately, Senator Clark’s corrective measure failed on a 12-12 vote, with only one Republican, Senator Russell Prescott (R-23), crossing party lines to vote in favor. Russell stated on the Senate floor,

“I just can’t make the leap… that a corporation has the same First Amendment rights as people.” 

Notably, State Senator Jeanie Forrester (R-2) – whose district includes Bridgewater, Bristol, Dorchester, Groton, Piermont, Plymouth, and Tilton, towns that all had just voted in favor of an amendment – refused to support Senator Clark’s correction.

However not all hope is lost for New Hampshire to become the 17th state to call for a constitutional amendment this legislative session.  SB 307 passed with the incorrect intent of examining the need for an amendment.  It will most likely be paired with a much stronger version of the bill from the House in conference committee, which could result in the stronger measure coming back to the Senate.  So it’s important to keep the pressure up.  

In the face of such obstruction, a quote from Winston Churchill comes to mind:

“The truth is incontrovertible. Malice may attack it, ignorance may deride it, but in the end, there it is.” 

Senator Clark and the people of New Hampshire have brought the truth to Concord; it’s only a matter of time before the legislature acts on it.

PFAW

Sheldon Adelson Shops for Next GOP Candidate

The Washington Post reports today that Sheldon Adelson – the casino magnate who spent, with his wife, more than $92 million in the 2012 elections – is in the market for a 2016 GOP presidential candidate to support.

After throwing reams of money at losing candidate Newt Gingrich in the last election, Adelson is now looking for someone he believes will be seen as electable by a country with swiftly changing demographics. He is already being wooed by GOP presidential hopefuls:

The change in attitude comes amid early jockeying by a lengthy list of aspiring Republican presidential contenders to win the affections of the billionaire, who is in the beginning stages of assessing the field.

“The bar for support is going to be much higher,” said Andy Abboud, Adelson’s top political adviser and an executive at the Adelson-run Las Vegas Sands Corp. He added, “There’s going to be a lot more scrutiny.”

This strategy would favor more established 2016 hopefuls such as former Florida governor Jeb Bush, New Jersey Gov. Chris Christie, Wisconsin Gov. Scott Walker and Ohio Gov. John Kasich. All four will descend this week on Adelson’s luxury hotel in Las Vegas, the Venetian, for an important step in what some are calling the “Sheldon Primary.”

Funny, I don’t remember learning about the “Sheldon Primary” in my high school civics class. But in our Super PAC-filled, post-Citizens United world of unlimited election spending, this seems to be the reality of how candidates who have a real shot are chosen. As Harvard law professor and activist Lawrence Lessig puts it,

We have a general election, but only after the funders have had their way with the candidates who wish to run in that general election.

With Adelson essentially interviewing potential candidates, it begs the question: will our presidents be working for the people who elected them, or will they increasingly serve as the puppets of billionaire benefactors? 

When a tiny fraction of the country’s wealthiest people are able to hand-pick candidates, it’s doubtful that we’ll have a government that focuses on the priorities of everyday Americans. A democracy simply doesn’t work if the voices of those of us who aren’t having swanky private dinners with presidential hopefuls are drowned out by the few who are.

PFAW

How Money in Politics Undermines Diversity in Elected Office

During a speech to a packed audience at the University of Washington on Monday, Supreme Court Justice Sonia Sotomayor was asked by a student what problems need to be fixed in order to see more women and people of color in government. 

Sotomayor’s answer, as reported by The Seattle Times, was simple: “Money.”

“Money,” Sotomayor said to laughter. “No, seriously. Look at what’s happening in politics. What’s talking the loudest is money.” For more minorities and women to gain more of a foothold in government decisions, “we’re going to have to work the political system at the highest level,” she said.

Justice Sotomayor is right. Today our country is represented by leaders who, as a whole, look little like the electorate they are supposed to represent and serve. Women are a majority of the population, and yet only make up 20% of the Senate and 18% of the House, putting us 83rd in the world for women’s political representation. We have only one openly LGBTQ person and only a handful of people of color in the US Senate – in 2012 there were no African Americans. This picture is not only problematic in itself, but it also has broad implications for policy outcomes.

It’s true that we have also seen some promising developments in political representation in recent years. The 113th Congress is the most diverse in history, with a record number of women and minorities elected, as well as a number of firsts. As the policy director for the Young Elected Officials Network, I am heartened by the changing faces of leadership at all levels of government, and what this means for our country both symbolically and substantively. But, like Justice Sotomayor, I’m also concerned that our country’s money in politics problem is standing in the way of further progress.

Much has been said lately about the impact of money in politics on political representation. At The Atlantic’s Shriver Report summit on women and poverty in January, former Speaker Nancy Pelosi noted,

If you reduce the role of money in politics and increase the level of civility in debate, more women will run for office… We say to women, we want you to go raise 12 million dollars, and by the way, subject yourself to 10 million dollars in negative publicity.

The influence of money in politics not only fuels corruption and the elevation of special and powerful interests, but it exacerbates the imbalance of power as a whole in our country by creating barriers to political representation for communities who are already marginalized. It perpetuates a system where the country is led by people who don’t understand the daily lived and embodied experiences of their constituents.

On Capitol Hill, we see the effects of this imbalance play out each day. From thwarted gun violence prevention efforts to legislation attacking women’s reproductive health voted on by committees and panels made up entirely of men, we continue to have elected leaders who side against the demonstrated wishes of its voters and with the moneyed interests.

We must pursue reforms that transform our electoral processes, even the playing field for all candidates, and restore the power to the people by reducing the outsized influence of big money and protecting the rights of voters. All indications show that we get better results for everyone when there’s diversity in governing bodies.

It’s both common sense, and a matter of basic human rights.

PFAW Foundation

Over Thirty Towns in the Granite State Call for a Constitutional Amendment To Get Big Money Out of Politics

Over the past week in New Hampshire, in efforts supported by People For the American Way activists, 31 towns have passed resolutions calling for a constitutional amendment to overturn the Supreme Court’s decisions in Citizens United and related cases. In the coming week, at least 20 more towns will vote on their own resolutions. If this week’s victories are any indication, we will likely see a strong majority of the 20 succeed.

These votes demonstrate the strength of the nation’s growing movement to amend the Constitution and take back our democracy. So far 16 states and over 500 municipalities have called for an amendment. The movement is particularly strong in New Hampshire, where nearly 70% of people support a constitutional amendment that limits campaign contributions and spending.  This winter, over 100 residents marched across the state in support of campaign finance reform for the New Hampshire Rebellion campaign.

The Supreme Court’s decision in Citizens United v. FEC (2010) opened the floodgates to corporate and special interest spending in our elections.  Since Citizens United, activists and advocacy organizations have been mobilizing across the country calling for an amendment to overturn the decision, its progeny, and the cases that led to it.  To learn more about the campaign, visit wwww.UnitedForThePeople.org and People For the American Way’s amendment toolkit.

PFAW

Money Buys Political Access, New Study Confirms

We can file this under news that should shock no one: a new study has found that members of Congress and their top staffers are significantly more likely to meet with political donors than with other constituents. 

The study – carried out by researchers at Yale and UC Berkeley in partnership with CREDO Action – sought to answer the question, just how much do donations buy access to elected officials in our political system?

Matea Gold at the Washington Post explains the experiment:

Last summer, a group of CREDO fellows e-mailed congressional offices seeking meetings to discuss the measure, sending one of two different form letters.

The first e-mail had the subject line: “Meeting with local campaign donors about cosponsoring bill.” The body of the e-mail said that about a dozen CREDO members “who are active political donors” were interested in meeting with the member of Congress in his or her home district to discuss the legislation.

The second e-mail stripped out the donor references and instead said “local constituents” were looking to meet the member of Congress.

…The e-mails went out to 191 members of Congress – all members of the same political party – who had not already co-sponsored the bill….The results: Only 2.4 percent of the offices made the member of Congress or chief of staff available when they believed those attending were just constituents, but 12.5 percent did when they were told the attendees were political donors. [emphasis added]

Huffington Post’s Amanda Terkel notes that the study could have implications for court cases like the infamous Citizens United v. FEC, which paved the way for unlimited corporate political spending. In the majority Citizens United opinion, Justice Kennedy argued that “independent expenditures do not lead to, or create the appearance of, quid pro quo corruption. In fact, there is only scant evidence that independent expenditures even ingratiate.”

Terkel points out that the new study may debunk the claim that there isn’t evidence that “independent expenditures,” such as those made to a super PAC rather than directly to a candidate, can curry favor with elected officials:

In this experiment, the lawmakers knew nothing about the donors, such as whether they had donated to their campaign in particular, or how much they gave and when. In fact, they could simply have been a donor to a super PAC.

Even so, the Supreme Court’s too-narrow understanding of “corruption” as tit-for-tat exchanges (for example, political bribes) may limit the study’s implications for Citizens United and cases like it.  But it does throw into stark relief how problematic the Court’s frame for understanding political corruption continues to be. When money can buy access to elected officials, we have a serious democracy problem.
 

PFAW Foundation

Sen. Diane Feinstein Charges CIA Obstruction of Senate Investigation

Yesterday, Sen. Diane Feinstein made an extraordinary 40-minute speech on the Senate floor denouncing the Central Intelligence Agency for obstructing congressional oversight by withholding information, intimidating staff involved in a congressional investigation, and removing documents from computers being used by the Senate Intelligence Committee staff.  Feinstein, who chairs the Intelligence Committee, has been a long-term public advocate for the intelligence community. CIA Director John Brennan is disputing Feinstein’s charges.

At the center of the dispute with the CIA is a years-long investigation of the detention and interrogation programs carried out in the wake of the 9/11 terror attacks. But the core constitutional issue being raised by Sen. Feinstein is the ability of Congress, operating under rules agreed to by the CIA, to conduct an oversight investigation without being spied on and having its investigation obstructed by the agency.

Sen. Patrick Leahy said he could not think of any more important speech during his many years in Congress. Sen. Mark Udall, who is also a member of the Intelligence Committee, praised Feinstein for “setting the record straight today on the Senate floor about the CIA’s actions to subvert congressional oversight.”

People For the American Way President Michael Keegan released a statement:

“We applaud Sen. Feinstein for voicing publicly her serious concerns about the CIA’s alleged obstruction of congressional oversight. Congress’s ability to provide oversight for our nation’s intelligence gathering operations isn’t incidental to the work they do—it’s essential. If information was withheld and intimidation tactics were used to deter investigations, this would be a gross abuse of power.

“We depend on Congress’s ability to conduct these investigations in order to protect the separation of powers in our government as well as the fundamental civil liberties guaranteed by our Constitution. We commend Sen. Feinstein for speaking out and calling on the CIA to cooperate rather than obstruct congressional oversight."

PFAW