Citizens United v. FEC

Concerns that Citizens United May Impact Your Access to Birth Control

What does Citizens United have to do with women’s health care?  According to a decision last week from the Seventh Circuit Court of Appeals, perhaps more than you may think.

Just a week after the Tenth Circuit Court of Appeals rejected Hobby Lobby’s petition to prevent enforcement of the Affordable Care Act’s contraception coverage provision, the Seventh Circuit Court of Appeals made a ruling at odds with that decision.  Last Friday the panel granted a motion for an injunction pending appeal to plaintiffs Cyril and Jane Korte who run Korte & Luitjohan Contractors, a construction company.  The Kortes had argued that the contraception mandate of the ACA violated their right to religious freedom. 

In other words, the Seventh Circuit Court of Appeals decided that – at least temporarily – the company does not have to comply with the Obama Administration’s rules that most employer-provided health care plans must cover birth control.

ThinkProgress’s Ian Millhiser points out that the Appeals Court cited Citizens United in their reasoning, a move that he finds “ominous.” Millhiser highlights a line from the decision – “That the Kortes operate their business in the corporate form is not dispositive of their claim. See generally Citizens United v. Fed. Election Comm’n, 130 S. Ct. 876 (2010)” – before arguing that:

As a matter of current law, this decision is wrong. As the Supreme Court explained in United States v. Lee, “[w]hen followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.” Lee established — with no justice in dissent — that religious liberty does not allow an employer to “impose the employer’s religious faith on the employees,” such as by forcing employees to give up their own rights because of the employer’s objections to birth control.

Nevertheless, the Seventh Circuit’s citation to Citizens United is an ominous sign. Lee was decided at a time when the Court understood that corporations should not be allowed to buy and sell elections. That time has passed, and the precedents protecting against corporate election-buying were overruled in Citizens United. It is not difficult to imagine the same five justices who tossed out longstanding precedent in Citizens United doing the same in a case involving whether employers can impose their religious beliefs on their employees.


Circuit Judge Ilana Diamond Rovner also raised issues with the decision.  In her dissent, she addressed the corporation issue head-on.  She noted that:


...it is the corporation rather than the Kortes individually which will pay for the insurance coverage. The corporate form may not be dispositive of the claims raised in this litigation, but neither is it meaningless: it does separate the Kortes, in some real measure, from the actions of their company.


Similarly, our affiliate People For the American Way Foundation’s Paul Gordon noted last month in reference to the Hobby Lobby decision that the question of where to draw the line in terms of government regulation of religious institutions and individuals is a tricky one.  Still, he pointed out:


The requirement to provide certain health insurance for your employees – not for yourself, but for people you hire in a business you place in the public stream of commerce – seems a reasonable one.

 

PFAW

“Money Out, Voters In” Initiative Launches

Both Martin Luther King Jr. Day and the 3rd anniversary of Citizens United v. FEC will take place this year on the weekend of January 19, 2013, and activists are preparing to draw attention to the appropriate juxtaposition of two of the most pressing issues facing our country. Progressives understand that the dual threats of money in politics and voter suppression are interrelated and threaten the foundations of American democracy, and that taking on one of those issues means taking on both. That’s why people are rallying together under the banner of “Money Out, Voters In” on and around January 19th to raise awareness to these threats and jumpstart 2013 campaigns that will address them.

To launch these efforts, People For the American Way hosted a webcast with co-chair of the Progressive Caucus Representative Keith Ellison that was viewed by activists across the country who had assembled in organizing meetings to strategize for their January 19th action.

To join these efforts, please visit “Money Out, Voters In” or email amendment@pfaw.org.

PFAW

Pushing Back on Citizens United With Art

The results of a recent PFAW and unPAC produced art contest are in: a panel of experts (including such luminaries as Shepard Fairey, designer of the famous 2008 ‘Hope’ poster and Jesse Dylan, creator of the ‘Yes We Can’ music video) chose the piece ‘Monopolistic’ by 21-year old Tennessean Landon Wix as winner of a $3,000 prize.

Titled ‘Art > Money,’ the contest’s purpose was to find a piece of art to serve as an iconic image for the need to keep big money out of the American electoral process. Art can play an important role in such a campaign: as Shepard Fairey says, “It’s about using art to push back against the existing power structures in our society and inspiring real change.” In this instance, the American people agree: 80% oppose the infamous Citizens United decision and favor restrictions on the amount of money corporations can spend on elections.

PFAW alerted and encouraged our members to promote the winning image, and as a result of our and other’s efforts, Wix’s image was shared across the country and on the internet by thousands of activists as part of a larger effort to spread awareness about this important issue.

To see more of Wix’s work, visit http://www.landonwix.webs.com/

PFAW Foundation

A Critical Victory in Montana

The defender of Montana's campaign finance laws will now become that state's governor.
PFAW

New Analysis Shines a Light on 2012 Election Spending

U.S. PIRG and Demos issue an analysis of how much campaign money is being spent by a few individuals and corporations.
PFAW Foundation

What Kind of Justice Will We Vote for On Election Day?

President Obama's Supreme Court Justices respect the words and the values of the Constitution and deeply understand the law's impact on everyday Americans.
PFAW

Montana Campaign Finance Caps Can Stay For Now

The Court declines to wreck Montana's campaign finance system just two weeks before Election Day.
PFAW

Chamber of Commerce - Big Spenders in the 2012 Elections

*NOTE: If you happen to be in the D.C. area, consider joining us Friday, Oct. 19 from 11:15a.m.-12:00p.m. for a rally in front of the U.S. Chamber that will call on the organization to disclose the sources of its funding and to stop opposing disclosure reform. The rally will include grassroots organizations as well as small business leaders and will be held at Lafayette Square, NW Corner, across from the intersection of H and 17th Sts. NW, Washington, D.C.*
 
The 2012 election cycle is poised to be the most expensive on record: if reasonable estimates of its cost are accurate, spending as a percent of real GDP will be 5.4% higher than in 2008.
 
The reason for this is not difficult to ascertain: because of the infamous Citizens United decision in 2010, election spending by outside groups has quadrupled since 2006. The U.S. Chamber of Commerce—the largest lobbyist organization in the United States and the flag bearer for corporate interests—had a lot at stake over the decision and submitted an amicus curiae brief during the proceedings.
 
A common misperception is that the primary effect of Citizens United has been to allow wealthy individuals to commandeer elections via unlimited independent expenditures. While this is true to some extent, corporationsrepresented by trade and lobbying organizations like the Chamber—also have a pivotal role to play in such efforts. In fact, the Chamber spent more than any Super PAC during the 2010 election cycle, indicating that corporations have benefited just as much as individuals.
 
The Chamber has been the premier vehicle for funneling cash to key pro-corporate initiatives for decades. It is a national organization with 300,000 businesses as members and a further 3,000,000 businesses and individuals as associates via state and local Chambers. Though the national and state/local Chambers are affiliates, often coordinate their efforts, and ostensibly have the same goals, increasingly there is divergence between them. For example, the 2010 congressional midterms saw 40 state/local Chambers dissociate themselves from the national Chamber over the content of advertising during the election cycle.
 
Receiving donations from a variety of businesses and individuals (the organization doesn’t have to disclose donors due to its 501(c)6 non-profit status), the Chamber claims to segregate funds for several distinct purposes: thus far, it has donated $1.59 million to campaigns, parties, and associated PACs, spent a whopping $55 million on lobbying, and spent a further $22 million on ‘outside spending’ in 2012.
 
Though ‘outside spending’ constitutes an undue extension of corporate influence over elections, the Chamber still dedicates the bulk of its funds to lobbying. In each instance, its pernicious influence affects the debate by skewing discussion toward corporate-sponsored proposals. For example, the Chamber has worked hard to water down regulations on derivativesespecially the Volcker Rule, which bans proprietary trading (derivatives were at the heart of the Great Recession of 2007-09) and in 2010 the chamber sued the Environmental Protection Agency in order to challenge carbon emission regulations.
 
As an integral member of the American Legislative Exchange Council (ALEC) —a consistent supporter of regressive Republican candidates and an organization with hundreds of millions of dollars at its disposal—the Chamber’s activity evinces the fact that corporations are very active this election cycle and that the claims that the Citizens ruling has enhanced free speech are absurd.
PFAW Foundation

CitU Spending Overwhelmingly Benefits Romney

Since Labor Day, 70% of outside spending on the presidential race made possible by Citizens United has benefited Mitt Romney, according to a new analysis.
PFAW

PFAW joins the “Stop the Greed Bus Tour” in Colorado

 

 

The "Stop the Greed" bus tour rolled into Denver, Colorado today and helped boost support for an important state ballot question on corporate political donations. PFAW’s Colorado Coordinator Ellen Dumm joined Elena Nunez of Colorado Common Cause (pictured above) and Luis Toro of Ethics Watch in support of the bus tour and a ballot initiative to overturn Citizens United.

On Election Day, Colorado voters will have a chance to say “no” to the Supreme Court’s Citizens United decision, which allows unlimited corporate campaign donations, by voting for Amendment 65. The ballot measure calls for the Colorado congressional delegation to support a constitutional amendment to overturn Citizens United.

The Stop the Greed Bus Tour is traveling to states to get the word out about how the billionaire oilmen Koch brothers are pouring millions of dollars into the 2012 elections in an effort to bolster their extreme right-wing agenda.

The Koch brothers have also bankrolled the controversial conservative group True the Vote, which has been accused of challenging eligible voters at the polls and disrupting elections.

 

PFAW

Lobbyists now using super PACs to ‘twist the arms’ of lawmakers

The Citizens United decision brought about the rise of super PACs, and empowered 501(c)(4) public advocacy groups and 501(c)(6) trade associations to participate in (at times secretly-funded) electoral advocacy. The resulting influx of money into the election cycle has considerably altered the political landscape – and D.C. lobbyists have taken note.

As reported by Dave Levinthal at POLITICO, interest groups are utilizing super PACs to ‘twist arms.’

So for some issue interest groups, super PACs are a potentially major complement to — if not upgrade over — traditional, Capitol Hill lobbying in their ability to bring heat on lawmakers and twist their arms toward their agendas.

“If you’re a lobbyist, you’re talking with a legislator and mention you’re forming a super PAC, their ears are really going to perk up just because you said the words ‘super PAC,’” said Shana Glickfield, a partner at public affairs firm Beekeeper Group. “It’s such a big, scary thing — and can give you an extra edge of influence.”

One of the first powerful lobbying firms to create a super PAC for additional influence was the National Association of Realtors, which has since rewarded lawmakers friendly to their agenda with hundreds of thousands of dollars in advertisements and air cover. A host of other lobbying groups have done so as well.

As People For noted in our written testimony for the Senate Constitution Subcommittee hearing this past July on the need for constitutional remedies to overturn Citizens United, the power of super PACs is twofold. Not only can special interest groups now spend freely on elections to promote their policy agenda, they can threaten to spend freely, effectively achieving the same result.

Of course, to accomplish its goals, a corporation need not actually spend such sums in every race they are interested in. Far from it. Especially for offices or in areas where electoral races are generally not overwhelmingly expensive – in other words, for most state and local legislative and judicial elections throughout the United States – the implied threat to spend large expenditures against elected officials could easily be enough to “persuade” them to take the “right” position. Conversely, the promise of an enormous windfall in supportive corporate independent expenditures could have an equally persuasive effect.

Such corruption leaves no evidence: no paper trail, no recordings, no ads. But it poisons our nation’s democracy.

Do D.C. lobbyists really need more tools in their arsenal to effectively ‘twist arms’? Are Sacramento lobbyists, Albany lobbyists, Tallahassee lobbyists or any other state-based lobbyists in desperate need of influence?

The obvious answer is no. Yet in the post-Citizens United world, the game is rigged, and those with power only accrue more of it. The people, meanwhile, are left with less and less of a say in government. It’s no wonder the Democratic Party, President Obama, nearly 2,000 public officials, seven state legislatures and over 300 cities/towns, and 1.98 million Americans are in support of a constitutional amendment that would overturn the Citizens United decision.

PFAW

8th Circuit Rules Against Disclosure Law

A sharply divided court blocks Minnesota's campaign finance disclosure rules for organizations making independent expenditures in state elections.
PFAW

Trade Associations Funnel Secret Corporate Campaign Cash

“[T]he big winners” of Citizens United are trade associations and their corporate members that can now spend undisclosed, unlimited amounts of money to affect elections.
PFAW

Democratic Platform Open to a Constitutional Amendment

The Democratic platform recognizes that an amendment may be needed to restore our democracy after Citizens United.
PFAW

President Obama voices his support for a constitutional amendment

Two days ago, President Obama sat down for a live “Ask Me Anything” session on the popular social news website Reddit. Of the ten questions President Obama was asked, one pertained to money in the politics:

What are you going to do to end the corrupting influence of money in politics during your second term?

Although not specifically asked about the amendment strategy, President Obama raised the issue in his answer:

Money has always been a factor in politics, but we are seeing something new in the no-holds barred flow of seven and eight figure checks, most undisclosed, into super-PACs; they fundamentally threaten to overwhelm the political process over the long run and drown out the voices of ordinary citizens. We need to start with passing the Disclose Act that is already written and been sponsored in Congress - to at least force disclosure of who is giving to who. We should also pass legislation prohibiting the bundling of campaign contributions from lobbyists. Over the longer term, I think we need to seriously consider mobilizing a constitutional amendment process to overturn Citizens United (assuming the Supreme Court doesn't revisit it). Even if the amendment process falls short, it can shine a spotlight of the super-PAC phenomenon and help apply pressure for change. [Emphasis added]

President Obama already had, through spokespeople, acknowledged his support of constitutional remedies to overturn Citizens United; he had not however done so himself, until now. The very fact that the sitting U.S. President is speaking seriously about the use of constitutional remedies to overturn Citizens United shows how far the movement has come. The movement has clearly made its move to the mainstream.

To date, here is what PFAW and our allies have accomplished:

- 1,951 public officials are now in support of constitutional remedies

- 96 House Representatives; 29 Senators

- 14 amendment resolutions introduced in the 112th Congress

- Over 275 cities and towns have passed resolutions supporting an amendment

- 7 State Legislatures have passed resolutions (HI, NM, VT, MD, RI, CA, and MA)

PFAW

House Democrats Endorse the DARE Initiative

Yesterday, House Democrats held a press conference highlighting the need to clean up the election system through what they are calling the DARE initiative. (To note, this is the same initiative Minority Leader Nancy Pelosi presented and spoke about in length at PFAW’s 30th Anniversary celebration this past June.) The acronym stands for the following:

D – Disclose

A – Amend

R – Reform

E – Elect

In just a short period of time, the impact of the Supreme Court’s egregious ruling in Citizens United v. Federal Election Commission, which opened the floodgates to corporate and special interest spending in our elections, has been felt nationwide. In response, a growing chorus of activists and organizations are mobilizing to overturn the decision by amending (the A in DARE) the Constitution. As evidenced by the press conference, public officials are responding to this movement. Nearly 2,000 are already on record in support of amending the Constitution to overturn Citizens United, including 92 Representatives in the House.

In attendance of the press conference were Minority Leader Nancy Pelosi, House Democratic Caucus chairman Rep John B. Larson (D-CT.), U.S. Rep. Chris Van Hollen (D-MD), U.S. Rep. John Sarbanes (D-MD.), U.S. Rep. Adam Schiff (D-CA.), U.S. Rep. David Cicilline (D-RI), U.S. Rep. James Clyburn (),U.S. Rep Dennis Kucinich (D-OH), as well as Nick Nyhart, President and CEO of Public Campaign.

Nyhart outlined three critical steps needed to remedy this: full disclosure, small donor and citizen-led funding of elections, and the ability to limit donations from large corporate entities.

 

 

Recently Republicans and Democrats clashed on the Disclose Act, which would have required the disclosure of all major donors in the election process. Leader Pelosi expressed her concern that dark money is “suffocating the airwaves and suppressing the vote.”

 

 

Not so long ago, disclosure was a bi-partisan issue. Congressman Van Hollen made this clear, quoting Senate Minority Leader McConnell’s (R-KT) statement from 2000 endorsing such reforms: “Why would a little disclosure be better than a lot of disclosure?”

Expressing his passion about the issue, Congressman Dennis Kucinich, motioning toward the Capitol building, told reporters, “in post-production you might want to include a ‘For Sale’ sign in front of that.” Kucinich stated, “Let’s be candid, the system is for sale.” The outgoing congressman urged immediate action on removing the corrupting influence of dark money, lest we lose our republic to the influence of special interests. This government must remain in the hands of the people - or as Mr. Nyhart put it, remain “Of, by, and for the many… not the money.”

 

[Dylan Hewitt, Amelia Coffey, and Michael Jameson contributed to this post]

PFAW

The Influx of Dark Money Could (Technically) Stop Tomorrow

Two weeks ago, Senate Democrats filed cloture on the Republican-led filibuster of the DISCLOSE Act, and failed to achieve the necessary 60 votes to bring the bill to the floor. Thus the DISCLOSE Act died once again, as it did in 2010, at the hands of Republican Senators who prefer obstruction and dark money over functionality and transparency. And unless there is an abrupt, unexpected reversal of the tide in the Senate, those who wish to bring a higher level of accountability to our democracy will, in the short term, have to explore alternative routes to bring about such reforms.

Those alternative routes exist in the federal agencies that interpret laws passed by Congress, but that so far have done a poor job in doing so correctly.

For confirmation of this, one need only look at the significant dilution of the McCain-Feingold Act of 2002, which had strict provisions requiring outside groups – including 501(c)(6)’s & 501(c)(4)’s – who participate in electioneering communications (any communication about a clearly identified candidate on satellite, T.V., or radio within 30 days of a primary or 60 days of a general election to a relevant targeted audience) to disclose their donors. The Supreme Court’s Citizens United ruling upheld this part of the law, with eight of the nine justices in agreement.

However, transparency would take a back seat with the Federal Elections Commission’s interpretation of the law, in which a loophole to disclosure was written into their regulations. That FEC regulation only requires disclosure of donors for 501(c)(4)’s and 501(c)(6)’s if those donors specifically earmark their donations for the purpose of electioneering communications. Thus as long as a donor does not require specifics for an organization on how to use their donation, disclosure of the donor’s identity is not legally required. Yet the disclosure provisions of McCain Feingold were not written – and were never meant to be interpreted – this way.

On April 2, 2012 Congressman Chris Van Hollen of Maryland’s 8th District won a lawsuit he filed against the FEC challenging the agency’s interpretation of the law. D.C. District Court Judge Amy Jackson found that the FEC had severely watered down existing legal requirements to disclose donors in campaign-related ads, stating “…Congress did not delegate authority to the FEC to narrow the disclosure requirement through agency rulemaking.” While Judge Jackson’s ruling is supposed to restore the statutory requirement that requires greater disclosure of the donors who provide funding for electioneering communications, it remains unclear that it will be implemented. Paul Ryan, FEC program director and associate legal counsel at the nonpartisan Campaign Legal Center has assessed, “Unfortunately, it’s highly unlikely that this dysfunctional commission will heed the court’s order anytime soon.” Implementation will also be delayed further due to appeals from conservative groups.

Had Congress’ law had been implemented accurately, full disclosure would have been the reality of the 2010 congressional races, which instead were marred by over $135 million in undisclosed spending; and which continues to mar the current election cycle.

Another party at fault is the IRS, which has sat idly by as a number of overtly politically-based 501(c)(4)’s have engaged in an overabundance of election activity when they are supposed to be first and foremost social welfare organizations. It seems obvious to all that the primary activity of organizations like Crossroads GPS and American Action Network is to engage in political advocacy and spend hundreds of millions of dollars influencing elections. Due to IRS inaction on the issue, the donors of these organizations need not be publicly disclosed.

In June the IRS finally initiated steps to to investigate some of these organizations taking advantage of tax exempt status while at the same time being overly engaged in election processes, in particular Crossroads GPS. However it is unlikely that any actions or penalties will be taken or applied in the near future leaving these huge, undisclosed, tax-exempt pools of money to flood our electoral process for the foreseeable future.

Moreover, and perhaps more importantly, IRS regulations that implement Internal Revenue Code distort the intent of the law. As noted by Democracy 21 and the Campaign Legal Center in a letter to IRS commissioners:

The Internal Revenue Code provides that section 501(c)(4) groups must engage "exclusively" in social welfare activities. … The regulations implementing this provision state, however, that "social welfare" organizations must be "primarily engaged" in social welfare activities.

If, as Congress intended, 501(c)(4) groups could achieve their tax-exempt status only by “exclusively” engaging in social welfare activities, the Crossroad GPS’s of the world would instantly have their (c)(4) statuses revoked. Instead, as we’ve witnessed with the tax-exempt status of the American Legislative Exchange Council, the big money players are able to indirectly charge the American taxpayer for their lobbying and political activity by not paying their fair share, benefitting their entrenched interests and not the country as a whole.

We must not give up on transparency in our democracy, especially if our electoral process is to remain awash in unlimited spending under the Citizens United ruling. In the not so distant past this was the dream of Republicans and Democrats alike. In his 2002 memoir “Worth Fighting For,” John McCain, a former champion of transparency, wrote “By the time I became a leading advocate of campaign finance reform, I had come to appreciate that the public's suspicions were not always mistaken. Money does buy access in Washington, and access increases influence that often results in benefiting the few at the expense of the many.” We await a return to this sober analysis by the GOP, and by the agencies who implement the laws Congress passes; the foundations of our republic are dependent on it.

PFAW