Add this to the good news/bad news mix from the Supreme Court's healthcare decision: Because of the good news (Chief Justice Roberts voted to uphold the constitutionality of the Affordable Care Act), we get the bad news that his standing among the nation's Democrats has significantly increased. This collective amnesia about who John Roberts is and what he has done is disturbing, especially since the direction of the Court is one of the most important issues upon which Democrats should be voting in November.
A new Gallup Poll shows wild fluctuations in Democrats and Republicans' assessment of Chief Justice John Roberts since their last poll in 2005, a change Gallup attributes to his role in upholding the Affordable Care Act. Roberts' approval rating among Republicans has plummeted 40 percentage points from 2005, falling from 67% to 27%. In contrast, his favorability among Democrats has risen from 35% to 54%. That the healthcare decision is a catalyst of this change is supported by a PEW Research Center poll last week showing that between April and July, approval of the Supreme Court dropped 18 points among Republicans and rose 12% among Democrats.
Yes, John Roberts upheld the ACA, but only as a tax. At the same time, he agreed with his four far right compatriots that it fell outside the authority granted Congress by the Commerce Clause, leaving many observers concerned that he has set traps designed to let the Court later strike down congressional legislation that should in no way be considered constitutionally suspect. He also joined the majority that restricted Congress's constitutional authority under the Spending Clause to define the contours of state programs financed with federal funds.
Just as importantly, Roberts's upholding the ACA does not erase the past seven years, during which he has repeatedly been part of thin conservative majority decisions bending the law beyond recognition in order to achieve a right wing political result. John Roberts cast the deciding vote in a number of disastrous decisions, including those that:
Oh, and then there's that little 5-4 Citizens United opinion that has upended our nation's electoral system and put our government up to sale to the highest bidder.
With a rap sheet like that – and this is hardly a complete a list – no one should be under the illusion that John Roberts is anything but a right-wing ideologue using the Supreme Court to cement his favorite right-wing policies into law.
Next term, Roberts is expected to lead the judicial front of the Republican Party's war against affirmative action and the Voting Rights Act. Whether he succeeds may depend on whether it is Mitt Romney or Barack Obama who fills the next vacancy on the Supreme Court.
The Republican National Committee filed an amicus brief in the 4th Circuit Court of Appeals today challenging the century-old federal ban on direct corporate contributions to candidates for office. If successful, the challenge would further weaken the clean elections laws that were decimated by the Supreme Court’s decision in Citizens United v. FEC. Citizens United struck down laws setting limits on the amount corporations could spend to influence elections via outside advocacy, but maintained the ban on direct corporate contributions.
It’s remarkable that the Republican Party is openly supporting a move that would amount to legalized pay-for-play by corporate donors. Under the weakened post-Citizens United rules, secretive groups that channel corporate money to influence elections have already gained enormous influence. Allowing corporations to contribute directly to campaigns would make the ties that bind wealthy corporations with elected officials even stronger.
January 21 will mark the second anniversary of the Supreme Court’s decision in Citizens United v. FEC, which opened the floodgates to unlimited corporate spending in elections, and the movement to overturn the decision is gaining steam.
As we approach the first post-Citizens United presidential election, we are already seeing the damage that unlimited and unaccountable money in politics can do. The 2010 midterm elections were dominated by secretive groups funneling corporate cash to political activities, and the Republican presidential primary has been greatly influenced by so-called Super PACs, which can spend millions supporting or opposing candidates.
In response to the growing outcry against Citizens United, People For the American Way has joined with a number of other advocacy groups to organize protests and organizing parties around the anniversary of the decision. People For’s Marge Baker writes more about the United For People movement in the Huffington Post today.
Marge will be discussing the anniversary activities and the push to overturn Citizens United with MSNBC host Dylan Ratigan this afternoon at 4:20 p.m. Eastern. Ratigan has a new op-ed out about the reasons to get money out of politics. Here’s an excerpt:
1) The Candidate With More Money Wins: From the 2008 elections: "In 93 percent of House of Representatives races and 94 percent of Senate races that had been decided by mid-day Nov. 5, 2008 the candidate who spent the most money ended up winning."
2) Congress's Main Job Is to Raise Money, Not Govern "Here is a general rule of thumb for US House incumbents. They need to raise roughly $10,000 a week started the day they are elected."
3) 48 Percent Say Most Members of Congress Are Corrupt "A new Rasmussen Reports national telephone survey shows that 48% of Likely U.S. Voters believe that most members of Congress are corrupt. Just 28% disagree, and another 24% are not sure."
4) Voters Think That Cash is King "A CNN/Opinion Research Corporation survey released Thursday indicates that 86 percent of the public thinks elected officials in the nation's capital are mostly influenced by the pressure they receive from campaign contributors."
5) No Trust in Elected Officials According to Pew Research less than 25% of people believe they can trust our government at all, particularly our elected officials.
Read the whole piece at the Huffington Post…and be sure to tune in this afternoon to hear Ratigan’s conversation with Marge Baker.
Late Friday, the Montana Supreme Court ended 2011 with a 5-2 opinion upholding the state's prohibition on corporate spending on independent expenditures to support or defeat a candidate. Although Citizens United struck down the federal law in that area, the Montana Supreme Court found that the state, by presenting a strong evidentiary record, had demonstrated that its law survives the strict scrutiny mandated by Citizens United.
As notable as this decision is, what is particularly striking is the dissent's scathing criticism of the Roberts Court's most notorious ruling to date. Judge James Nelson disagreed with the majority that Montana's law could be distinguished from Citizens United. However, he took the opportunity to discuss the severe flaws of the Citizens United decision and the damage it is doing to our country. Below are a couple of choice excerpts (with internal citations removed):
While, as a member of this Court, I am bound to follow Citizens United, I do not have to agree with the Supreme Court's decision. And, to be absolutely clear, I do not agree with it. For starters, the notion that corporations are disadvantaged in the political realm is unbelievable. Indeed, it has astounded most Americans. The truth is that corporations wield inordinate power in Congress and in state legislatures. It is hard to tell where government ends and corporate America begins; the transition is seamless and overlapping. In my view, Citizens United has turned the First Amendment's "open marketplace" of ideas into an auction house for [Milton] Friedmanian corporatists.
I am compelled to say something about corporate "personhood. " While I recognize that this doctrine is firmly entrenched in the law, I find the entire concept offensive. Corporations are artificial creatures of law. As such, they should enjoy only those powers—not constitutional rights, but legislatively-conferred powers—that are concomitant with their legitimate function, that being limited-liability investment vehicles for business. Corporations are not persons. Human beings are persons, and it is an affront to the inviolable dignity of our species that courts have created a legal fiction which forces people—human beings—to share fundamental, natural rights with soulless creations of government. Worse still, while corporations and human beings share many of the same rights under the law, they clearly are not bound equally to the same codes of good conduct, decency, and morality, and they are not held equally accountable for their sins. Indeed, it is truly ironic that the death penalty and hell are reserved only to natural persons.
That even the judges who enforce the Roberts Court’s dirty work are compelled to speak out against it shows how deeply unpopular and wrong Citizens United is.
On MSNBC this morning, Mitt Romney seemed to endorse doing away with all limits on direct contributions to political campaigns. The Washington Post’s Greg Sargent caught the quote:
“I think the Supreme Court’s decision was following their interpretation of the campaign finance laws that were written by Congress. My own view is now we tried a lot of efforts to try and restrict what can be given to campaigns, we’d be a lot wiser to say you can give what you’d like to a campaign. They must report it immediately. And the creation of these independent expenditure committees that have to be separate from the candidate, that’s just a bad idea.”
Clean elections advocates are, unsurprisingly, aghast:
“This is more radical than Citizens United,” David Donnelly of Public Campaign Action Fund told me when I asked for his reaction. “It means that if he is president he will appoint Supreme Court justices that will eviscerate any ability to regulate campaign finance.”
While Citizens United allowed corporations to spend unlimited amounts of money running ads for or against candidates for office, corporations are still banned from giving money directly to candidates (and limits on individuals' direct campaign contributions remain intact for now). Citizens United unleashed a flood of corporate money into politics. Romney’s plan wouldn’t fix that – instead it would make candidates even more beholden to corporate interests.
Incidentally, this is yet another issue where Romney has come full circle since running for Senate in 1994. At the time, Romney came out strongly for campaign contribution and spending limits, saying, “To get that kind of money, you’ve got to cozy up as an incumbent to all of the special interest groups who can go out and raise money for you from their members. And that kind of relationship has an influence on the way you’re going to vote….I don’t like the influence of money, whether it’s business, labor, I do not like that kind of influence":
Justin wrote earlier today about the trove of model legislation from the American Legislative Exchange Council (ALEC) that the Center for Media and Democracy released today. ALEC, which is funded largely by corporate interests, is a driving force behind a whole lot of state-level legislation that helps out big business at the expense of individual citizens – legislation that curtails workers’ rights, undercuts public education and other essential government services and, most importantly, and big tax breaks to corporations and the wealthy.
The agenda that ALEC helps to spread to state legislatures doesn’t just help give the group’s corporate funders a leg up – it also helps them keep American voters from wresting away any power they have in the electoral process.
The Nation’s John Nichols went through the ALEC legislation and found not only model Voter ID language – variations of which have been introduced in 33 states this year -- but various attempts to keep voters from imposing campaign finance limits:
Beyond barriers to voting, ALEC is also committed to building barriers to direct democracy. Horrified by the success of living-wage referendums and other projects that have allowed voters to enact protections for workers and regulations for businesses, ALEC’s corporate sponsors have pushed to toughen the rules for voter initiatives. “The legislative process should be the principal policy-making vehicle for developing state law,” declares one 2006 resolution, which specifically mentions concerns about state minimum wage laws, taxation and “the funding of other government programs and services.” ALEC’s Resolution to Reform the Ballot Initiatives Process recommends making it harder to qualify referendum language and suggests that proposals on fiscal issues should require supermajorities to become law.
ALEC is also determined to ensure that citizens do not have the final say on who is elected president, an agenda outlined in such documents as its Resolution in Support of the Electoral College and its ardent opposition to the National Popular Vote project (which it has warned would “nationalize elections and unravel Federalism”). A related resolution encourages state legislatures to formally complain that an interstate compact to defer to the popular will “would allow a candidate with a plurality—however small—to become President.” While ALEC worries about the candidate with the most votes winning, it has no problem with policies that increase the likelihood that the candidate with the most money and corporate support will prevail. Its 2009 Resolution Supporting Citizen Involvement in Elections bluntly “opposes all efforts to limit [citizen] involvement by limiting campaign contributions.” A resolution approved last year expresses support for the Supreme Court’s Citizens United ruling. ALEC even opposes moves to give shareholders a say in the expenditure of corporate funds on campaigning. At the same time, ALEC urges legislators to fight the “federal takeover” of state election procedures, objecting in particular to universal standards for voting procedures.
Far-right Senator Ron Johnson (R-WI) spent roughly $9 million of his own money last year to finance his senatorial campaign. Lucky for him, shortly after his campaign ended, he received $10 million in deferred compensation from the plastics company he used to run.
This alone would warrant some questions, but the details of the compensation package cast even more suspicion over the deal. According to the Milwaukee Journal-Sentinel:
Unlike most deferred package deals, however, it appears that the company had not set aside a specified amount annually that would be paid out when he left the firm. Instead, Johnson said the $10 million payment was "an agreed-upon amount" that was determined at the end of his tenure with the company.
Agreed upon with whom?
"That would be me," he said.
Is it just a coincidence that the amount Johnson spent on his campaign so closely matches the amount he received in compensation? Quite possibly, but it is also enough to provoke some legitimate questions. Long-standing campaign finance laws prohibit corporations from directly funding campaigns for federal office, and if it were to come out that Johnson was reimbursed for his expenditures it would be a major campaign finance violation. So how does Johnson respond to questions about his spending? Again, from the Journal-Sentinel:
The first-term Republican declined to say how his Oshkosh firm, Pacur, came up with a figure that so closely mirrored the amount he personally put into his campaign fund.
“You take a look in terms of what would be a reasonable compensation package, OK?” Johnson said this week. “It’s a private business. I’ve complied with all the disclosure laws, and I don’t have to explain it any further to someone like you.”
And who is this “someone like you” that Ron Johnson doesn’t have to explain himself to? A reporter asking a legitimate question.
H/t to Brian Beutler at TPM
GOP activist James Bopp Jr. has played a critical role in eviscerating campaign finance regulations throughout his career as a Republican attorney. He successfully argued in FEC v. Wisconsin Right to Life that Congress couldn’t prevent corporations from using money from their general treasuries on so-called “issue ads,” and he initially represented the right-wing group Citizens United in the landmark case that ushered in massive corporate involvement in politics (although he did not argue the case in Supreme Court).
After fighting for the power of corporations to increase their already-substantial role in public affairs, now Bopp is launching a pro-GOP political group that seeks to cash-in on the glut of corporate money. Stephanie Mencimer of Mother Jones reports that Bopp is one of the founders of the newly formed Republican Super PAC and is set to expand corporate involvement in politics to an even greater degree by having candidates participate in the fundraising for undisclosed corporate dollars:
"The different thing here with our PAC is that we are going to harness the political fundraising of candidates and parties," he says. He explains that the committee will allow candidates and parties to fundraise for their campaigns and party organs at the same time they solicit unlimited, anonymous contributions to the super PAC.
Here's how it works: Say House Speaker John Boehner (R-Ohio) approaches the CEO of Exxon for a contribution to his reelection campaign. Under federal law, the CEO can only give Boehner $2,500. In the past, that’s the end of the conversation. But Bopp's plan envisions Boehner and his campaign asking that same donor—and his company—to pony up more money, as much as he wants, for the Republican Super PAC. The donor can even specify that the money be spent supporting Boehner or attacking his opponent. Then Bopp's PAC can buy ads, send out mailings, canvass neighborhoods, and do all the other things a political campaign typically does on Boehner’s behalf.
The Republican Super PAC is the logical outgrowth of Citizens United and a series of other recent court decisions that have overturned long-standing restrictions on corporate campaign spending. Bopp says these rulings allow his new group to go into uncharted campaign finance terrain. "This is perfectly legal," Bopp insists.
Yesterday afternoon, Rep. Darrell Issa, the founder of the Transparency Caucus, dedicated a committee hearing to smearing transparency as the enemy of democracy. President Obama is reportedly drafting an executive order that would require businesses seeking government contracts to disclose their political spending. Since Issa's patrons in Big Business would rather cloak their machinations in secrecy, Issa called a hearing to try to reframe a provision that would protect democracy as a threat to democracy. Shortly before the hearing, People For the American Way President Michael Keegan wrote a Huffington Post piece about this.
Listening to Issa and his fellow Republicans, you'd never know that last year's Citizens United decision undermined a century's work of reforming our campaign finance system. You'd never know that from the congressional midterm election immediately before Citizens United and the one immediately after, spending from groups that don't disclose their donors skyrocketed from one percent of total spending by outside groups to an incredible 47 percent. You'd never know that corporate giants were anonymously flooding the airwaves with campaign ads and drowning out the voices of everyone else.
At the hearing, Issa and his fellow Republicans repeatedly framed the executive order as injecting political considerations into federal contracting decisions. They ignored the fact that both current federal law and the proposed executive order prevent that from happening. They ignored the testimony of an OMB official who described the effective appeals process bidders have whenever they suspect they were turned down for a contract for political reasons. They ignored the fact that, as Ranking Member Elijah Cummings pointed out, if the proposed disclosure requirements inject political considerations into procurement decisions, then so do existing disclosure requirements.
Issa and his allies kept repeating that the only reason to require disclosure would be to incorporate politics into contracting decisions. The OMB official pointed out other examples where contractors submit information that cannot be used by procurement officials but which the American public has a vital interest in – such as lobbying disclosures.
Disclosure of political spending is simply not a threat to political speech, as much as Issa and his wealthy patrons want to claim otherwise. In fact, eight of the nine Justices in Citizens United voted to uphold disclosure requirements and agreed that the federal government has an important interest in providing Americans information about the sources of election-related spending. It's not easy to get eight Justices to agree on much of anything these days, so that says a lot about just how far beyond the mainstream Issa and his corporate backers have gone.
The Obama administration is planning to issue an executive order that would require government contractors to disclose their political contributions. This will at least shed light on whether taxpayer dollars are used to influence elections now that, because of the Citizens United decision, corporations -- including government contractors -- are permitted to spend unlimited money from their general treasuries on elections.
Of course, massive corporations and the U.S. Chamber of Commerce would prefer that these political donations remain a secret in order to preserve their enormous advantage in our current pay-to-play system.
It’s no surprise that their staunch ally Darrell Issa, chairman of the House Oversight & Government Reform committee, is holding yet another politically-motivated hearing, with a stacked witness list, to find out if “President Obama’s proposal would curb free speech and hurt small businesses.”
A coalition of representatives from the American Independent Business Alliance, the American Small Business Council, the South Carolina Small Business Chamber of Commerce and small business owners find this suggestion laughable. In a press telebriefing held this morning, the panel described how it is in fact the exact opposite—the current scenario in which large corporations make political contributions without disclosure requirements – that is detrimental to small business.
Panelists expressed their dismay at how government contracts are awarded to large corporations, when small businesses can provide a better product at significantly lower cost. They wonder what they have to do to get the same sweetheart deals that the large companies with deep pockets and lobbying shops are getting. The problem is that we’ll never know unless these corporations are forced to disclose their political contributions. The fact that they won’t shows that they have something to hide—and Americans would surely demand better stewardship of their tax dollars if they knew that their money was ultimately being used for political purposes instead of on services to benefit the public interest. As Marybeth Gardam, owner of EarthStuff LLC summarized, “Transparency is a small business value.”
It is also an American value, and one that we should demand throughout our political system.
People For president Michael Keegan has more on the disclosure proposal in the Huffington Post.
While the Supreme Court’s decision in Citizens United overturned decades of precedent by granting corporations the right to spend money from their corporate treasuries to help elect or defeat candidates, many pro-corporate activists believe that the ruling didn’t go far enough and seek to eviscerate even more restrictions on corporate money in elections. Opponents of campaign finance reform are spearheading efforts to allow corporations to contribute directly to candidates for office, permit political groups to keep the identity of their donors a secret, and loosen restrictions on foreigners contributing to candidates. The Supreme Court is also set to consider a major case on the constitutionality of Arizona’s clean elections laws that provide public financing for qualifying candidates. Politico reports on the Right’s “sustained assault” on campaign laws:
Not satisfied by the 2010 Supreme Court ruling that opened the floodgates to corporate-sponsored election ads, conservative opponents of campaign finance regulations have opened up a series of new legal fronts in their effort to eliminate the remaining laws restricting the flow of money into politics.
They have taken to Congress, state legislatures and the lower courts to target almost every type of regulation on the books: disclosure requirements, bans on foreign and corporate contributions and – in a pair of cases the Supreme Court will consider this month – party spending limits and public financing of campaigns.
The sustained assault, combined with the Supreme Court’s rightward tilt on the issue, has some advocates for reducing the role of money in politics fretting about the possibility of an irreversible shift in the way campaigns are regulated and funded that would favor Republicans and corporate interests in the 2012 presidential race and beyond.
“Depending on its scope, an adverse ruling from the high court could undermine public financing systems across the country and increase still further the grossly disproportionate voice given to corporations and unions in our elections,” warns a memo by Gerry Hebert and Tara Malloy, lawyers at the pro-regulation Campaign Legal Center, which filed a brief defending the Arizona law.
“Just a year after the controversial decision in Citizens United v. FEC, the Court is once again poised to issue a ruling that could make it harder for ordinary citizens to compete with big money in our democracy,” their memo predicted.
Opponents of campaign rules argue that removing restrictions allows more voices to compete in the political marketplace. And they have a slew of other suits pending that could dramatically alter the political money landscape, including one challenging a rule that limited how much the Republican National Committee could spend supporting the unsuccessful 2010 reelection campaign of former Rep. Joseph Cao (R-La.).
The Supreme Court is set to decide on Friday whether to hear the case which is being handled by Jim Bopp, a Republican lawyer and leading opponent of campaign restrictions. The impact of the Cao case “could be real big,” if the court overturns the so-called coordination limits at issue, predicted Bopp, who has dozens of cases pending in courts around the country.
One seeks to advance the Citizens United ruling by challenging an Iowa law banning direct corporate contributions to state candidates, while a pair of others dispute whether non-profit groups called the Committee for Truth in Politics and The Real Truth About Obama that aired ads critical of then-candidate Barack Obama had to disclose their donors or activity.
After taking power in the House, the new Republican majority is preparing to eliminate one of the most significant efforts to ensure fair elections: the public finance system in presidential races. Instead of making the public finance system stronger, the GOP wants to do away with it altogether with little if any debate. Already, many House Republicans are pushing legislation that would allow corporations to make direct donations to candidates for public office even though “85% of voters say that corporations have too much influence over the political system today.” By eliminating the ability of campaigns to opt to receive public finances, candidates will become more, not less, dependent on the shadowy corporate dollars flowing into our elections.
Andy Kroll of Mother Jones reports on the GOP’s plan to scrap public financing of presidential campaigns:
On Wednesday, House Republicans plan to rush to the floor a bill that would eliminate the federal government's presidential financing system—in the process, violating recent pledges by the GOP's leadership of increased transparency and debate in Congress. Not one hearing has been held on the legislation, nor has a single committee debated its merits. If it passes, it will roll back more than 30 years of law born out of the Watergate scandal, eviscerating one of the few remaining protections stopping corporations from heavily influencing, if not outright buying, American elections, reform experts say.
Democratic lawmakers and campaign finance reformers blasted the bill, not only for seeking to kill public financing but for breaking the GOP's campaign promises on transparency and accountability. "This is a sneak attack on the system," says Rep. Chris Van Hollen (D-Md.). "It's a total break from their public pledge for transparency and openness." Fred Wertheimer, a longtime campaign finance reform advocate at Democracy 21, called the bill "a gross abuse of the legislative process."
Public financing of presidential campaigns provides matching tax dollars to the small donations received by candidates who agree to publicly finance their campaigns, instead of relying on private donations. The intent is to encourage small donations, and the burden on taxpayers isn't much: Americans can voluntarily contribute $3 to the fund on their federal tax filings. The public finance system was created in the aftermath of the Watergate scandal in the mid-1970s. After President Richard Nixon's re-election campaign was found to have illegally accepted hundreds of thousands of dollars from big corporations, Congress created a public financing system so that candidates wouldn't have to rely on corporations and deep-pocketed donors to finance their campaigns.
The way reformers see it, the presidential public financing system needs repair, not repeal. Meredith McGehee, policy director at the Campaign Legal Center, says the amount of public funds currently available to candidates is too small to be competitive in modern presidential races. She says lawmakers need to update the system to better emphasize small donations to candidates and raise the total amount of public funding available. "Imagine if you didn't make any changes to the tax code since 1976. Of course public financing is outdated. The issue, then, is not to get rid of, but how to fix."
Update: The House of Representatives voted 239-160 to end the Presidential Election Campaign Fund, although it's chances to pass the Senate are low.
While Republicans in Washington are celebrating the anniversary of Citizens United by threatening to scrap the public finance system for elections and allow corporations to donate directly to candidates, Senator Max Baucus of Montana is standing up with the vast majority of Americans who want to see Congress curb the enormous political clout of corporations and overturn Citizens United. Yesterday, Senator Baucus said he will reintroduce a Constitutional Amendment that would give elected officials the right to regulate corporate contributions to political organizations and reverse the Court’s sweeping ruling:
“The foundation of democracy is based on the ability of the people to elect a government that represents them - the people, not big business or foreign corporations. As Montanans, we learned our lesson almost a century ago when the copper kings used their corporate power to drown out the people and buy elections. Today, we have some of the toughest campaign finance laws in the land, and they work. Now we've got to fight to protect the voices on hard-working Montanans and keep elections in the hands of the people, and that's just what I intend to do,” Baucus said.
In the Citizen’s United case, the Supreme Court ruled that corporations, including foreign corporations, had the right to spend unlimited dollars from their general funds to make independent expenditures at any time during an election cycle - including directly calling for the election or defeat of a candidate.
As a result of the Supreme Court's ruling, Montana's century-old campaign finance laws limiting corporate spending are now also in jeopardy.
Baucus’ Constitutional amendment would restore the authority to regulate corporate political expenditure and protect states' right to regulate contributions in the way that works best for them. The amendment does not modify the First Amendment, and the language specifies that this does not affect freedom of the press in any way.
As Americans remember the one year anniversary of the Supreme Court’s ruling in Citizens United with calls for action to limit corporate influence in politics and reverse the Court’s reckless decision, pro-corporate activists and their Republican allies in Congress seek to further erode corporate accountability and transparency. As American University Constitutional law professor, Maryland State Senator, and People For Senior Fellow Jamie Raskin writes, Citizens United not only ushered an avalanche of corporate and secret money in elections but also paved the way for more attacks on restrictions on corporate power. Raskin asks:
Do you want to wipe out the ban on federal corporate contributions that has been in place since 1907? This should be a piece of cake. If a corporation is like any other group of citizens organized to participate in politics for the purpose of expenditures, why not contributions too?
Apparently, the answer is “yes.” While the majority decision in Citizens United said that corporations can use money from their general treasuries to finance outside groups, the ban on direct donations from corporations to candidates was left intact. But as profiled in People For’s report “Citizens Blindsided,” corporations have a number of mouthpieces, front groups, and political allies who want to create even more ways for Big Business to influence American politics.
NPR’s Peter Overby reports that pro-corporate activists from groups like Citizens United and the Center for Competitive Politics now want Republicans in Congress to further weaken already-diluted laws on transparency and fairness in elections:
Citizens United has helped to upend the debate over political money — so much so that when the American Future Fund ran a radio ad targeting Sen. Kent Conrad earlier this month for the 2012 Senate race, it was treated as just part of the political game. Conrad, a North Dakota Democrat, said this week that he won't seek re-election.
Michael Franz, a political scientist with the Wesleyan Media Project, tracks political ads.
"The effect of Citizens United in 2010 may not have been as huge, because what was going on had been set in motion earlier," he said. "But what the court did in Citizens United could suggest huge effects for other campaign finance laws down the road."
First of all, disclosure is under attack.
"Just because it may be constitutional to impose these disclosure rules, doesn't mean it makes for sound policy," said Michael Boos, counsel to the group Citizens United.
The federal ban on foreign donors faces a court challenge. House Republicans plan to vote next week to kill off public financing in presidential elections.
And the Center for Competitive Politics, an anti-regulation group, wants to undo the century-old ban on corporate contributions to federal candidates.
That was one of the first campaign finance laws on the books. The center says the corporate world now is far different from what it was in 1907, when Congress imposed the ban.
Supreme Court Justices Antonin Scalia and Clarence Thomas raised eyebrows and ethics questions late last year when they attended a conference sponsored by Charles and David Koch, the billionaire brothers who head Koch Industries. A comprehensive expose from The New Yorker reported on the Koch Brother’s immense financial and ideological ties to right-wing and pro-corporate groups, and the Koch-sponsored event that Scalia and Thomas attended was held “to review strategies for combating the multitude of public policies that threaten to destroy America as we know it.” The Koch Brothers have greatly benefited from the Supreme Court’s pro-corporate rulings, including the Citizens United decision which allowed corporations to use funds from their general treasuries to finance, sometimes secretly, political organizations. Tomorrow is the first anniversary of Citizens United, and Common Cause is requesting that the Justice Department look into whether Justices Scalia and Thomas should have recused themselves from the case:
The government reform advocacy group Common Cause today asked the Justice Department to investigate whether Supreme Court Justices Clarence Thomas and Antonin Scalia should have recused themselves from the landmark Citizens United vs. Federal Election Commission decision because they were involved with an array of conservative groups that stood to benefit from it.
In the case, the Supreme Court by a 5-4 margin struck down a provision of the McCain-Feingold campaign finance act that prevented corporations and unions from spending an unlimited amount of money on electioneering, such as campaign ads. Scalia and Thomas sided with the majority in the decision, which was made a year ago this week.
In a letter addressed to Attorney General Eric Holder, Common Cause President Bob Edgar said both justices should have been disqualified from hearing the case because of their ties to Charles and David Koch, wealthy brothers who fund an array of conservative causes.
The justices both attended “retreats” held by Koch Industries, Edgar said, that focused on championing conservative ideas including opposition to campaign finance laws.
Their attendance raises the question of whether the two judges were impartial in their decision, Edgar said. He also questioned Thomas's impartiality because his wife, Ginny, ran a nonprofit group that Edgar said benefited greatly from the Citizens United decision.
“Until these questions are resolved, public debate over the allegations of bias and conflicts of interest will serve to undermine the legitimacy of the Citizens United decision,” Edgar said.
Friday is the first anniversary of the Supreme Court’s 5-4 ruling in Citizens United v. FEC, which helped unleash massive corporate spending in the 2010 elections, and more voices have emerged to denounce the Court’s wrongheaded and extreme ruling. The decision’s impact on public policy debates became more apparent today as the House of Representatives prepares to vote to repeal the health care reform law after pro-corporate groups spent handsomely to discredit the law with bogus charges and attack Congressmen which supported reform.
Ben Cohen and Jerry Greenfield of Ben & Jerry’s ice cream, along with companies like Patagonia, Stonyfield Farms and Honest Tea, have launched Business for Democracy, “a coalition of like-minded businesses to protest a Supreme Court ruling that struck down limits on corporate campaign spending in candidate elections.” The Wall Street Journal reports that “members of ‘Business for Democracy’ believe ‘the decision is inconsistent with the basic ideal of ‘government of the people, by the people, for the people,’" and support a constitutional amendment to reverse the decision.
In today’s Washington Post, Katrina vanden Heuvel discussed how the vast corporate spending to influence the midterm elections was “just an experiment” compared to how corporations plan to sway the 2012 election. But despite the push by pro-corporate groups to keep spending by businesses in elections unchecked, the efforts for legislative remedies and the push for a constitutional amendment to overturn Citizens United persevere:
According to Bill de Blasio, New York City's public advocate, Citizens United spending - that is, spending that was only made possible by the court's ruling - accounted for 15 percent of the roughly $4 billion spent on the 2010 midterm elections. Eighty-five million dollars of Citizens United money was spent on U.S. Senate races alone. Worse, 30 percent of all spending by outside groups was funded by anonymous donations, an illegal action prior to the ruling. Forty million of the dollars spent on Senate races came from sources that might never be revealed.
But as striking as these consequences might be, the 2010 election was just an experiment, the first opportunity to test the new law. In future elections, corporations and shadowy organizations will have a clearer understanding of the boundaries they are operating within, a reality that is sure to translate into more undisclosed cash. And the savvier corporate players know that the mere threat of a corporate onslaught of funding for or against a candidate is enough to win legislative favor, in effect blunting prospects for sound regulation, consumer protection and fair tax policies. As former senator Russ Feingold (D-Wis.), himself a victim of Citizens United spending, said, "It is going to be worse in 2012 unless we do something - much worse."
Yet even as we lament this decision, we should recognize the opportunity it presents. Justice Roberts and his allies overreached so brazenly that they have created an opening for genuine reform.
The clearest and boldest counter to the court's ruling would be a constitutional amendment stating unequivocally that corporations are not people and do not have the right to buy elections. Rep. Donna Edwards (D-Md.) introduced such an amendment to counter Citizens United during the last session of Congress and views it as the only sure way to beat back the court. "Justice Brandeis got it right," she noted last February. " 'We can have democracy in this country, or we can have great wealth concentrated in the hands of a few, but we can't have both.' "
Campaigns for constitutional amendments demand a great deal of patience and tenacity. But as Jamie Raskin, a Democratic Maryland state senator and professor of constitutional law at American University, notes, "American citizens have repeatedly amended the Constitution to defend democracy when the Supreme Court acts in collusion with democracy's enemies." Not only is a push for an amendment a worthy act, it also provides a unique opportunity to educate the broader public, raise the profile of this important issue and force elected officials to go on record as to where they stand. The campaign could create enormous pressure on state legislatures and Congress, prompting changes to campaign finance even before an amendment is ratified.
Success will require a coalition that transcends party. In this case, there is promising news. An August 2010 Survey USA poll found that 77 percent of all voters - including 70 percent of Republicans and 73 percent of independents - view corporate spending in elections as akin to bribery. Broad majorities favor limiting corporate control over our political lives. A coordinated effort, executed right, could unite progressives, good-government reformers and conservative libertarians in a fight to restore democracy.
Last week, SCOTUSBlog had a podcast interview with legal scholar Erwin Chemerinsky, discussing his new book The Conservative Assault on the Constitution. The blog has asked Chemerinsky some follow-up questions, and his responses are worth reading.
For instance, he discusses the concept of a living Constitution and the hypocrisy behind the Right's claims of a consistent approach to judging cases.
Q. Within the context of the "conservative assault" you discuss in the book, can you please define the terms "living constitution" and "strict constructionist"?
- Everyone is a strict constructionist in that everyone believes that the text of the Constitution should be followed where it is clear. But the phrase "strict constructionist" was coined by Richard Nixon to refer to something more ideological: Justices who followed the conservative approach to interpreting constitutional provisions. Interestingly, conservatives are not strict constructionists in interpreting the Second Amendment. There conservatives read the Second Amendment as if it simply said "the right of the people to keep and bear arms shall not be infringed." They ignore the first half of the Amendment which speaks of the right existing for the purpose of having a well-regulated militia.
A belief in a "living Constitution" rejects the notion that the meaning of a constitutional provision is the same in 2011 as when it was adopted. A living Constitution says that in interpreting the Constitution, Justices and judges should consider history, tradition, precedent, and modern needs. There always has been a living Constitution and hopefully always will be. The opposite of a living Constitution is a dead Constitution and no society can be governed under that.
He also discusses how self-professed conservative "originalists" are selective in when they pay attention to original intent.
Q. You write in your book that "it is clear that conservatives often abandon the original-meaning approach when it does not serve their ideological purposes." Can you please elaborate - perhaps by providing an example or two?
- Affirmative action. I am skeptical that we can ever really know the original intent or meaning for a constitutional provision. But if ever it is clear, it is that the drafters of the equal protection clause of the Fourteenth Amendment intended to allow race-conscious programs of the sort that today we call affirmative action. The Congress that ratified the Fourteenth Amendment adopted many such programs. Yet originalist Justices, like Antonin Scalia and Clarence Thomas, pay no attention to this history in condemning affirmative action. Another example is campaign finance. There is absolutely no indication that the drafters of the First Amendment intended to protect the speech of corporations (that did not occur for the first time until 1978) or spending in election campaigns. But conservative Justices nonetheless find a First Amendment right for corporations to engage in unlimited expenditures in campaigns.
Of course, that is a reference to Citizens United, where the aggressively activist Roberts Court handed our elections over to powerful corporate interests. There is a direct line from that case to the new corporate-friendly gang that will be running the House of Representatives for the next two years.
Who sits on the Court has consequences for us all.