Free Speech

Kudlow to Corporate-Backed Groups: Disclose Your Funding

Yesterday, Think Progress dropped a campaign finance bombshell when it reported that the US Chamber of Commerce, which is spending tens of millions of dollars this year to run ads supporting GOP candidates in federal elections, is collecting hundreds of thousands of dollars from foreign owned businesses, including companies owned by foreign governments.

Reliable clean elections proponents, like Minnesota senator Al Franken, spoke out immediately for the FEC to investigate the Chamber’s finances. But the voices in support of campaign finance disclosure haven’t been coming only from the left.

CNBC host Larry Kudlow, a columnist for the conservative National Review, said today that groups like the Chamber and Karl Rove’s shadowy group Crossroads GPS should put their funding and spending records out in the open. According to fact sheet from House Speaker Nancy Pelosi’s office, Kudlow said:

“Why not have the media posting of the contribution information on the Internet? That's all. And let everybody decide… Who, what, when, how, where, who got it? Put it up on the net and let free speech and free politics take its work… American Crossroads and Karl Rove and all them should post also.” [10/6/10]

We reported last week on several groups, including the Chamber of Commerce and Crossroads GPS, that are spending buckets of money to back pro-corporate candidates in this year’s elections, while under no obligation to disclose where their money is coming from. This spending is no small change—the Associated Press reported last week that right-wing, pro-corporate groups have outspent progressive groups 6-1 on television ads this year.

Kudlow’s call for disclosure from these big-spending groups should come as no surprise. Disclosure of campaign spending is a principle embraced by many prominent conservatives, including Justice Antonin Scalia. And when the Supreme Court’s conservative majority ruled in Citizens United v. FEC to allow corporations to spend unlimited amounts of money to influence elections, they did so with an important side note: they were in favor of “prompt disclosure” of the campaign spending.

Up against the reality of corporate-backed groups that will spend enormous amounts of money for their electoral benefit, however, congressional Republicans have been significantly less eager to embrace the idea of full disclosure than that of free spending.

The Chamber of Commerce, for one, seems to be solidly in the congressional Republican camp on the disclosure issue. Asked by the Washington Post’s Greg Sargent about Think Progress’s allegations, a spokeswoman for the Chamber responded with a tirade against the blog, denying that the Chamber spends foreign money on electioneering—but refusing to answer any questions on just how that money is kept separate.


 

PFAW

First Monday in October

Today, as the Supreme Court opens its new term, the major news concerns a decision from last term: the solid rebuke of Citizens United by a bipartisan group of more than 50 legal scholars and public officials. The impact of that decision is poisoning election campaigns around the country and, through the Congress that will be elected as a result, will doubtless impact the lives of every American.

This term, the Court will be deciding at least one new corporate personhood case, as well as other cases affecting our most important rights, including freedom of speech, church-state separation, and due process. Some of the ones we'll be looking at:

Corporate Personhood & Privacy: AT&T v. FCC. The Freedom of Information Act (FOIA) generally requires federal agencies to disclose records to the public upon request. There are numerous exceptions, such as records or information compiled for law enforcement purposes whose disclosure could reasonably be expected to constitute an unwarranted invasion of "personal privacy." The Supreme Court will decide if "personal privacy" applies to corporations, as well as to people.

Free Speech: Snyder v. Phelps. Fred Phelps and his fellow fanatics from the Westboro Baptist Church are infamous for picketing the funerals of military personnel with messages such as "God Hates Fags." According to Phelps, the deaths of U.S. servicemembers are God's punishment for the nation's tolerance of homosexuality. The Supreme Court will determine whether Phelps' funeral-picketing activities are protected by the First Amendment. The case will be argued Wednesday.

Free Speech: Schwarzenegger v. Video Software Dealers Association. The Supreme Court will address whether a California law restricting the sale of violent video games to minors violates the free speech protections of the First Amendment. California argues that states can restrict minors' access to violent material just as they can with sexual material. During oral arguments in November, we may get a sense as to whether the Supreme Court agrees.

Church-State Separation: Arizona Christian Tuition v. Winn. Arizona has a program that gives parents tax credits for tuition at private schools. Most parents use these credits toward tuition at religious schools. A group of taxpayers sued, arguing that this violates the Establishment Clause of the First Amendment. Before the Supreme Court can decide that issue, it must first determine if the plaintiffs have standing to sue. In 2007, the Roberts Court limited the circumstances in which taxpayers can challenge government expenditures that violate the Establishment Clause, and they may do so again in this case.

State Secrets Privilege: General Dynamics v. U.S. and Boeing v. U.S. These cases are actually not about the most infamous uses of the states secret privilege, which notoriously has been used to shut down lawsuits against the government alleging U.S. complicity in torture and other illegal activities. This time, it's the federal government that has initiated the lawsuit, which raises interesting Due Process issues. These consolidated cases address whether the United States can sue two defense contractors for failing to fulfill their contractual obligations, while at the same time using the state secrets privilege to prevent the companies from presenting a defense.

Employment of Immigrants: Chamber of Commerce of the United States v. Whiting. In 2007, Arizona passed a law targeting employers who hire undocumented immigrants by revoking their licenses to operate in the state. The state law also requires employers to participate in a federal electronic employment verification system that federal law specifically makes voluntary. The Supreme Court will decide whether federal immigration legislation preempts Arizona's laws.

Preemption - Right to Sue Drug Manufacturers: Bruesewitz v. Wyeth. The federal Vaccine Act preempts certain design defect lawsuits in state court against child vaccine manufacturers "if the injury or death resulted from side effects that were unavoidable even though the vaccine was properly prepared and was accompanied by proper directions and warnings." The Bruesewitz family argues that their lawsuit isn't preempted because the side effects were not unavoidable: A safer, alternative vaccine was available. The Supreme Court will decide if the Vaccine Act preempts the family's suit.

Preemption - Right to Sue Car Manufacturers: Williamson v. Mazda. An accident victim sued Mazda in state court for negligently choosing to install a lap-only seatbelt in the back center seat instead of a safer lap/shoulder belt. However, federal car safety regulations at the time specifically allowed lap-only seatbelts. The Supreme Court will decide if Congress intended the federal safety regulations to preempt such state lawsuits.

PFAW

Scalia’s Selective Originalism

Earlier this week, Supreme Court Justice Antonin Scalia told an audience of law students that the Constitution does not protect against sex discrimination. In a great column for Time today, Adam Cohen outlines what has gone so wrong with the trend toward vehement--but inconsistent--Constitutional originalism that Scalia represents:

The Constitution would be a poor set of rights if it were locked in the 1780s. The Eighth Amendment would protect us against only the sort of punishment that was deemed cruel and unusual back then. As Justice Breyer has said, "Flogging as a punishment might have been fine in the 18th century. That doesn't mean that it would be OK ... today." And how could we say that the Fourth Amendment limits government wiretapping — when the founders could not have conceived of a telephone, much less a tap?

Justice Scalia doesn't even have consistency on his side. After all, he has been happy to interpret the equal-protection clause broadly when it fits his purposes. In Bush v. Gore, he joined the majority that stopped the vote recount in Florida in 2000 — because they said equal protection required it. Is there really any reason to believe that the drafters — who, after all, were trying to help black people achieve equality — intended to protect President Bush's right to have the same procedures for a vote recount in Broward County as he had in Miami-Dade? (If Justice Scalia had been an equal-protection originalist in that case, he would have focused on the many black Floridians whose votes were not counted — not on the white President who wanted to stop counting votes.)

Even worse, while Justice Scalia argues for writing women out of the Constitution, there is another group he has been working hard to write in: corporations. The word "corporation" does not appear in the Constitution, and there is considerable evidence that the founders were worried about corporate influence. But in a landmark ruling earlier this year, Justice Scalia joined a narrow majority in striking down longstanding limits on corporate spending in federal elections, insisting that they violated the First Amendment.

The view of the Constitution that Scalia champions—where corporations have rights that the Constitution’s authors never imagined, but women, minorities, and working people don’t—has become a popular political bludgeon for many on the Right. GOP senators pilloried now-Justice Elena Kagan during her confirmation hearings for offenses such as thinking Congress has the right to spend money, arguing the case against giving corporations the same free speech rights as human beings, refusing to judge according to a subjective view of “natural rights,” and admiring the man who convinced the Supreme Court that school segregation was unconstitutional.

An avowed allegiance to the original intent of the Constitution has become a must-have for every right-wing candidate. The talking point sounds great, but it hides the real priorities behind it. Anyone who needs reminding of what the fidelity to the Constitution means to the Right needs just to look to Scalia.

 

PFAW

What Citizens United has to do with Rod Blagojevich

Last night, a federal jury in Chicago convicted Illinois governor Rod Blagojevich on just one of 24 counts of political corruption. On the rest of the counts, the jury was hopelessly deadlocked.

Scott Turow, the bestselling novelist who started his career as a US Attorney prosecuting political corruption cases in Chicago, writes in the New York Times that whatever the fuzziness of fact in the Blagojevich case, what is even fuzzier is the way our legal system deals with political corruption. The influence of big money is everywhere in our political process—and the Supreme Court’s decision in Citizens United opened the door for less showy, but equally problematic, versions of the corruption that Blagojevich is accused of.

Indeed, in Citizens United v. Federal Election Commission, the court decided that such organizations could spend as much as they wished at any time, assuming there was no direct coordination with the candidate. In doing so, the court overturned its own precedents and refused to distinguish the free speech rights of corporations and unions in any way from those of actual people.

The problem with this logic is that corporations have a legal duty not to spend money unless it is likely to improve profits. Unions, too, are expected to make only contributions that will benefit members. As a result, no idealistic patina of concern about good government or values-driven issues can burnish these payments.

The future of other campaign finance restrictions looks bleak. Thirty-four years ago, when the Supreme Court first declared in Buckley v. Valeo that the First Amendment protected election spending, it nonetheless approved contribution limits “to prevent ... the appearance of corruption.” In Citizens United, the Roberts Court gave short shrift to any concern about appearances. Limits on direct contributions to candidates appear likely to be the next campaign safeguard to fall.

In any case, the bevy of ways in which donors can get around current spending laws, combined with the Supreme Court’s elastic approach to the First Amendment, have left our campaign finance system as little more than a form of legalized influence-buying. Only those as naive as Wanda Brandstetter or as crass and ham-handed as Rod Blagojevich find themselves subject to prosecution, while others wise enough to say less out loud find snug protection in the First Amendment, no matter how bald their desire to influence government actions.

We see daily examples of this sort of dynamic happening in elections—take the Florida governor’s race--where any causal relationships between campaign cash and policy decisions can never be fully sorted out. It’s a dangerous thing for democracy…and one, as Turow points out, we aren’t going to fix without a Constitutional amendment.
 

PFAW

New Poll Shows Americans Want Less Corporate Influence in Politics

Last month, we commissioned a poll asking people across the country what they thought of corporate influence in elections and the Supreme Court’s decision in Citizens United to expand that influence. The results were staggering.

A whopping 85% of voters surveyed said they thought corporations already have too much influence in our political system. 95 % agreed that “Corporations spend money on politics mainly to buy influence in government and elect people who are favorable to their financial interests.” 77% supported a constitutional amendment to allow Congress to limit the amount corporations can spend on elections, and 74% said they’d be more likely to vote for a candidate who shared that view.

Yesterday, MoveOn.org released the results [PDF] of a new poll on corporate money in politics, and guess what?

The MoveOn poll found:

  • “79% of voters polled, including 72% of Republicans and 75% of Independents, believe that it’s important that a candidate commit to reducing the influence of corporations over elections”
  • “Almost two out of three voters (60%) disagree with the Supreme Court’s decision in the Citizens United case. Sixty-seven percent of those would be more likely to support a candidate who backs a constitutional amendment to overturn the decision.
  • “Seventy-seven percent of voters overall (including 70% of Republicans Independents), view corporate election spending as an attempt to bribe politicians rather than an expression of free speech that should not be limited.”


No matter how you cut the numbers, the pattern is clear. Americans want voters, not corporate money, to own our democracy.

Speaking of which…have you asked your elected officials and candidates to sign the Pledge to Protect America’s Democracy?
 

PFAW

Target apologizes, but will stay in politics

Why would two companies that received 100% ratings from the Human Rights Campaign's 2010 Corporate Equality Index give a combined $250,000 to a group backing a candidate with extreme anti-gay views? According to Target's CEO, the company was only trying to advance "policies aligned with our business objectives" when it contributed $150,000 to Minnesota Forward, a group whose sole purpose is to support the candidacy of State Rep. Tom Emmer, the Republican nominee for governor of Minnesota.

MN Forward is a creation of the Minnesota Chamber of Commerce and the Minnesota Business Partnership, and its top priority is, of course, lowering the corporate tax rate. In fact, MN Forward is led by Brian McClung, who previously served as "government affairs director for the Twin West Chamber of Commerce" and ran the "group's political-action committee." Benefiting from the Supreme Court's Citizens United decision, the organization already raised $1.1 million, much of it from corporate donors like Hubbard Broadcasting, Red Wing Shoe Co., Federated Insurance and Davisco Foods. Ultimately, MNForward hopes to obtain $2 to $5 million in order to run advertisements across the state promoting Emmer.

It's not a surprise that big business has rallied around Emmer, who repeatedly voted against consumer protection laws, such as "good faith" requirements for insurance companies, and raising the minimum wage. In fact, Emmer was rewarded with a perfect 100% rating from the Chamber of Commerce for his 2010 voting record. But Emmer is not only a consistent defender of corporations in the State House, but is also a leading opponent of gay rights.

He voted against a bill that would permit same-sex domestic partners to have rights over the burial of their deceased partners, and also opposed allowing domestic partners of state employees to collect health insurance. Emmer even voted against legislation that would mandate anti-bullying policies in public schools to protect LGBT youth. When a local Christian rock band's lead singer called the execution of gays "moral," Emmer refused to condemn the band, and instead called them "nice people."

While Emmer declined to denounce the viciously anti-gay rock band he has financially supported, he did take the opportunity to blast critics of corporate influence in elections as enemies of free speech.

In the end, faced with an outcry from shareholders and a boycott from consumers, Target's CEO apologized for the donations. However, the company did not say that it would stop making contributions; instead, it will create a review board to oversee future contributions.

No word yet from BestBuy and other companies who have financially backed MN Forward.

PFAW

GOP’s Citizens United Hypocrisy

As we witness the growing influx of corporate spending in elections from Kentucky to Minnesota as a result of the Citizens United ruling, campaigns across the country are bracing for a barrage of corporate expenditures. Senate Republicans claim that by refusing to allow the DISCLOSE Act to come up for a vote, they are defending free speech rights established by the Court. But Norman Ornstein of the American Enterprise Institute criticizes the Republicans’ dangerously selective view of the Citizens United decision. While the 5-4 decision grants for-profit corporations the same free speech rights as individuals, the Court also ruled 8-1 to affirm the government’s right to enact rigorous campaign disclosure laws:

Senate Minority Leader Mitch McConnell, who holds the undisputed twin titles of No. 1 campaign finance anti-reformer and No. 1 hypocrite, once said he didn't understand why a little disclosure is better than a lot of disclosure. Now the Kentucky Republican is leading his party and outside activists in spurning the clear, 8-1 mandate of the Roberts Supreme Court in the Citizens United decision to encourage robust disclosure, as they call the disclosure they once championed a horrendous burden and even an unconstitutional blockage of free speech.

Even though Senate Republicans defend Citizens United, going so far as to compare it to Brown v. Board of Education, they appear to dismiss the Supreme Court’s approval of disclosure requirements to prevent secretive and misleading campaign practices by corporations. Like candidates running for office, CEOs of corporations should appear in their advertisements and go on record with their political expenditures, and publicly report money used for political purposes. As constitutional law expert Lawrence Tribe writes:

[F]ederal legislation should, at a minimum, build on the disclosure and disclaimer requirements that the Court upheld by an 8-1 vote in Citizens United, requirements specifying that electioneering communications funded by anyone other than the candidate must disclose who is “responsible for the content of this advertising” and must display on screen “in a clearly readable manner” for at least four seconds the name and address or website of whoever funded the communication.


 

 

PFAW

Will Your Representative Sign the Pledge to Protect America’s Democracy?

Today, People For the American Way and Public Citizen launched a new campaign to get the ball rolling on a Constitutional Amendment to kick corporate money out of elections.

In January, the Supreme Court overturned a policy that was more than a century-old to allow corporations to spend millions of dollars from their treasuries to influence elections. To get to that decision, in the case of Citizens United v. FEC, the Court determined that corporations have the same free speech rights as individuals.

This reasoning, and the conclusion it led to, have been soundly rejected by Americans across the political spectrum. A poll we commissioned last month found that 85% of Americans disagree with the Court’s conclusion that the First Amendment allows corporations to spend whatever they like on elections, and 77% wanted to amend the Constitution to undo it.

What’s more, 74%--including majorities of Democrats, Republicans, and independents-- said they’d be more likely to vote for a candidate who pledged to work for a Constitutional Amendment to undo Citizens United.

We saw this as a clear call to action. So we joined up with Public Citizen to create www.PledgeForDemocracy.org and start making a Constitutional Amendment a reality.

Here’s how it works. We’ve written up a pledge for federal candidates to sign, committing them to work towards a Constitutional Amendment to return our democracy to voters. It reads:

The Supreme Court's flawed decision allowing corporations to spend unlimited amounts to influence election outcomes endangers our democracy and threatens to drown out the voices of individual citizens. I pledge to protect America from unlimited corporate spending on our elections by supporting a Constitutional amendment to overturn the Supreme Court's decision giving corporations the same First Amendment rights as people.

If you support a Constitutional Amendment, contact your representatives and candidates in your area and urge them to sign the pledge. Then get back to us and let us know what they said. We’ll keep track of contacts to candidates and officials, and publicize which candidates sign the pledge and which refuse to sign it.

We know that elections belong to voters…it’s time for elected officials to show they agree.
 

PFAW

After Citizens United: Big Tobacco Aims for More First Amendment Rights

In the wake of the Citizens United decision, the Supreme Court may choose to determine whether corporations have additional rights to free speech under the First Amendment. On June 24th, justices will meet to decide whether to hear a group of cases the government has brought against Big Tobacco, and the court will announce its decision the following Monday, the first day of Elena Kagan’s confirmation hearings.. At issue are a host of First Amendment issues, namely a corporation’s right to make assertions that may be fraudulent, in the interest of trying to influence public policy. To say the least, the cases are complicated. According to a lawyer representing Big Tobacco,

 “Some law clerk at the Supreme Court is probably pulling his hair out as we speak,” said Jones Day partner Michael Carvin, who represents R.J. Reynolds Tobacco Company and Brown & Williamson Holdings, Inc. before the Supreme Court. “It's like a jigsaw puzzle.”

These cases demonstrate the potentially far reaching effects of the Court’s radical decision in Citizens United, which first recognized a First Amendment right to speech for corporations in the form of independent expenditures on elections. Now, corporations are seeking even more free speech protections.

“Tobacco company briefs cite the Citizens United decision for the proposition that they too deserve First Amendment protection for statements they made about the health effects of tobacco, statements that helped form the basis of the government suit under the Racketeer Influenced and Corrupt Organizations (RICO) law. In many of the tobacco company briefs, the First Amendment argument is the leading issue.”

The tobacco companies are responding to the DC Circuit’s finding that Big Tobacco’s advertising that claimed smoking was not harmful violated RICO. In contrast, documents presented to the court confirm that Philip Morris knew cigarettes were harmful, and released the advertisements in spite of this information.

The government presented evidence from the 1950s and continuing through the following decades demonstrating that the Defendant manufacturers were aware—increasingly so as they conducted more research—that smoking causes disease, including lung cancer. Evidence at trial revealed that at the same time Defendants were disseminating advertisements, publications, and public statements denying any adverse health effects of smoking and promoting their “open question” strategy of sowing doubt, they internally acknowledged as fact that smoking causes disease and other health hazards.

An added complication to these cases is that Elena Kagan, if confirmed as a Supreme Court justice will likely have to recuse herself from deliberations, because she was Solicitor General in February, when the United States filed its petition for the Supreme Court to hear one of the cases.

The cases, depending on how many the court chooses to accept, will likely turn on a test of equitable balance between the government’s interest in preventing fraud, and a corporation’s interest in defending itself.

 “This is an enormously powerful tool for the government,” said Carvin. “If you knock out corporations from public debate, that's pretty frightening stuff … The Washington Legal Foundation and the Chamber of Commerce of the United States have also filed briefs emphasizing the First Amendment issue among others.  But Crystal asserts that “you don't have a First Amendment right to commit fraud.” Carvin replies that “yes, you can stop someone from saying that his cereal stops cancer,” but the kind of statements at issue in the tobacco cases amount to “classic public policy speech” that deserve First Amendment protection.

Given the likely absence of Kagan on the bench, and the recent pro-business history of the Roberts Court, it’s fair to assume that corporations will find themselves with even more powers under the First Amendment. It is a truly scary notion for the average American, and something that further highlights the damage Citizens United will have on the rights of individuals in our democracy.
 

PFAW

Big Money in State Elections

The PFAW Foundation’s Young Elected Officials Network is gathering this week in Washington, in part to discuss how to work on national progressive issues on the state and local levels.

A panel this afternoon discussed local activism to fix the Supreme Court’s decision to grant corporation’s huge power to influence elections—and the outsized impact that corporate money can have on state- and local-level campaigns with small budgets.

Jeffrey Clements, and attorney who helped found the advocacy group Free Speech for the People, brought up the case of Montana, whose nearly hundred-year-old ban on corporate campaign contributions and expenditures is being challenged in court in the wake of Citizens United. In 2008, the average winning state senate candidate in the state spent just $17,000. An infusion of corporate cash into the state's elections would have a dramatic impact, Clements argued.

Massachusetts State Senator Jamie Eldridge, a member of the YEO Network, came to the issue with an interesting perspective—he is the only “Clean Elections” candidate to have ever won office in Massachusetts (he first ran for a seat in the state House of Representatives one year in which Massachusetts had a Clean Elections public financing program).

“When I first ran, I was entirely publicly financed,” he said, “I didn’t have to raise money and could go door-to-door talking to voters about what they cared about.”

State elections with unlimited contributions from corporations and individuals aren’t uncharted territory—six states currently have no contribution limits at all—but it will be interesting to see how campaigns in states like Montana change if the rules that candidates have been playing by for decades disappear.
 

PFAW

The Return of Soft Money

In the New York Times today, Adam Liptak predicts that in the wake of Citizens United, the Supreme Court will reconsider, maybe as early as this summer, the constitutionality of limits on “soft money”—unlimited contributions to political parties. The lawyer who won the Citizens United case appealed last month a lower court decision upholding the ban on soft money donations.

 Liptak explains the difficulty of keeping the soft money ban in the wake of the Supreme Court’s decision to give corporations essentially free reign to spend on elections:

Ever since the Supreme Court’s 1976 decision in Buckley v. Valeo, election law has relied on what many people think is an artificial distinction. The government may regulate contributions from individuals to politicians, Buckley said, but it cannot stop those same people from spending money independently to help elect those same politicians.

Why not? Contributions directly to politicians can give rise to corruption or its appearance, the court said, but independent spending is free speech. A $2,500 contribution to a politician is illegal; a $25 million independent ad campaign to elect the same politician is not.

Citizens United extended this logic to corporations. Corporate contributions to candidates are still banned, but corporations may now spend freely in candidate elections.

The distinction between contributions and spending has not been popular in the legal academy.

“Buckley is like a rotten tree,” Burt Neuborne, a law professor at New York University, wrote in 1997. “Give it a good, hard push and, like a rotten tree, Buckley will keel over. The only question is in which direction.”

The return of soft money to elections would not be a trivial matter. In the 2000 election cycle, before the McCain-Feingold bill banned the practice, soft money donations to party committees totaled over $500 million—about a sixth of the total amount spent on federal campaigns that year.

It will be interesting to see if the Roberts Court, given its track record on issues involving large bank accounts, is willing to take us back there.

PFAW

New People For Report Tracks the Rise of the Corporate Court

When the Supreme Court decided this year to open the electoral process to floods of money from corporate interests, it provoked a vehement public backlash. But Citizens United v. FEC was just the tip of the iceberg of a decade of rulings—some high-profile and some less noticed— made by a Court that has been disturbingly deferential to corporate interests. A new People For the American Way Foundation report outlines the rise of the corporate court under Chief Justice Rehnquist and the new life it has taken on in the Roberts court.

Americans across the spectrum have been startled and appalled by the Citizens United decision, which will "open the floodgates for special interests—including foreign companies—to spend without limit in our elections," as President Obama said in his 2010 State of the Union Address. According to a Washington Post nationwide poll, more than 80% of the American people reject the Court's conclusion that a business corporation is a member of the political community entitled to the same free speech rights as citizens.

Yet, the Court's watershed ruling is the logical expression of an activist pro-corporatist jurisprudence that has been bubbling up for many decades on the Court but has gained tremendous momentum over the last generation. Since the Rehnquist Court, there have been at least five justices—and sometimes more—who tilt hard to the right when it comes to a direct showdown between corporate power and the public interest. During the Roberts Court, this trend has continued and intensified. Although there is still some fluidity among the players, it is reasonable to think of a reliable "corporate bloc" as having emerged on the Court.

Take a look at the full report here.
 

PFAW

Corporate Spending in Judicial Elections Skyrocketing

For those still in doubt about the potential for corporate influence in national elections in the post-Citizens United world, it might be helpful to look at the growing sway of corporate money in state-level judicial elections.

Eliza Newlin Carney at the National Journal found some staggering statistics:

Predictions that the Citizens United v. Federal Election Commission ruling will unleash a torrent of corporate money are wildly overblown, free speech advocates insist. As evidence, they argue that corporate money has yet to flood elections in the 26 states that already impose no limit on corporate spending.

But a closer look at state-level elections suggests that independent political expenditures by corporations, unions and other special interests are substantial. This is particularly true in judicial elections, which have gotten dramatically costlier, nastier and more controversial over the past decade. The Citizens United ruling may impact judicial races even more drastically than federal elections, some experts argue.

Campaign spending in state Supreme Court elections for the 2008 cycle topped $45 million, continuing a trend that started in the early 1990s, according to Justice at Stake, a nonprofit promoting judicial impartiality. Judicial campaign fundraising totaled $206.4 million between 2000 and 2009, according to a forthcoming Justice at Stake report, more than double the $83.3 million raised between 1990 and 1999.

Corporate money dominated those expenditures, according to Justice at Stake spokesman Charles Hall, who said some 30 percent of the $206.4 million had "clear links" to the corporate sector. Other big judicial campaign money sources were lawyers and lobbyists, who accounted for about 28 percent of the $206 million-plus total.

The Supreme Court itself highlighted the dangers of this trend in last year’s decision banning a West Virginia Supreme Court justice from participating in a case involving a man who had spent $3 million helping him get elected. The funder in question was Massey Energy Company owner Don Blakenship—who has recently earned criticism as an example of what can happen when corporations have more regulatory influence than the citizens they employ.

PFAW

Senator Kerry Speaks Out for a Constitutional Amendment

During a hearing of the Senate Rules Committee today, Senator John Kerry announced his intention to introduce a Constitutional Amendment to repair the damage done by the Supreme Court in Citizens United v. FEC.

We face two challenges: first, to mediate the impact of the Court's decision and stop the bleeding through immediate countermeasures and, second, to think boldly about the best way to free our democracy from the dominance of big money.

Mr. Chairman, the reform ideas already circulating are promising - mandating shareholder approval of spending, prohibiting spending by domestic subsidiaries of foreign corporations and government contractors, giving candidates primetime access to the public airwaves at the lowest rates.

We must do those things quickly. But we may also need to think bigger. I think we need a constitutional amendment to make it clear once and for all that corporations do not have the same free speech rights as individuals.

The entire statement is worth a read.
 

PFAW

Correcting the Court is nothing new

On January 29, 2009, President Obama signed the Lilly Ledbetter Fair Pay Act into law, restoring the rights taken away by the Supreme Court in Ledbetter v. Goodyear Tire & Rubber Company. One year to the day, a new movement is afoot to correct the Court.

Title VII of the Civil Rights Act of 1964 was enacted to protect individuals from discrimination they face in the workplace.  In Ledbetter, the Supreme Court undermined that protection by holding that employees who are subjected to pay discrimination must bring a complaint within 180 days of the discriminatory compensation decision and that each paycheck that is lower because of such discrimination does not restart the clock.  Advocates fought hard for a law that would reiterate Congress’ intent to hold employers accountable for their discriminatory practices and to allow employees a fair chance to challenge unlawful pay discrimination.

Advocates are now calling for another Court correction, this time in response to the Citizens United ruling, which prohibits Congress from limiting the influence of corporations in elections for public office. Not only is this a radical departure from longstanding precedent, it defies common sense: it argues that corporations and American citizens have identical free speech rights under the Constitution. As Justice Stevens pointed out in his dissent, corporations are not people. They cannot vote, they cannot hold office, and they should not be allowed to pour billions of dollars into our system of government.

Unfortunately the fix we found in for the Ledbetter decision is not enough to fix Citizens United. Legislation, while important and critically needed to mitigate the effects of the decision, may ultimately prove to be inadequate against the unfettered influx of corporate election spending. Only a constitutional amendment can restore the American people’s authority to regulate corporate influence in our elections and restore our democracy.

People For the American Way is calling for just such an amendment. Click here for more information and to sign our petition.

PFAW

Annise Parker Elected Mayor of Houston

On Saturday, Annise Parker was elected mayor of Houston. This makes Houston, the fourth largest city in the country, the largest municipality in America to have elected an openly gay mayor.

Of course, the right wing has never met an openly gay person they didn’t want to dehumanize, so Rick Scarborough, along with other figures from the anti-gay movement, decided to step in and attack Parker by sharing his copy of the “homosexual agenda.” Via Right Wing Watch:

1. Legalize same sex marriage.

2. Mandate public acceptance of the homosexual activities.

3. Teach homosexuality to school children, starting in kindergarten, as an acceptable, alternative lifestyle. This is known as multisexualism. This enables homosexuals to recruit children to their lifestyle.

4. Lower or remove age of consent laws leading to relaxation of laws prohibiting pedophilia. See www.nambla.org /

5. Elevate homosexuals to a minority class, leading to affirmative action for homosexuals in the workplace. Cross dressers could force employers to accept their actions at work.

6. Prohibit any speech which opposes homosexual activity. This would be considered “hate speech” and have criminal sanctions. This would destroy 1st Amendment free speech rights for those who oppose homosexual conduct and the homosexual political movement.

7. Require employee benefits to be provided to same sex partners.

8. Elect candidates to office who will work to implement the homosexual agenda.

Unfortunately for Scarborough, the voters of Houston decided to evaluate the candidates on the decidedly less salacious issues of crime, taxes, and development policy. How boring.

So congratulations to Parker and to all the voters of Houston!

And we hope that Scarborough is enjoying the view from the dustbin of history.
 

PFAW

Fourteen Years Later, PFAW Continues to Denounce ‘Irresponsible Speech’ and Intolerance in Our Country

It’s no mistake that freedom of speech is in the first Amendment to the Constitution.  It’s impossible to overstate its importance to our democratic system.  But respect for free speech doesn’t give us the right to turn a blind eye to dangerous, irresponsible speech.  As we’ve seen through the explosion on rightwing hate, violent rhetoric can lead to violent actions, and we have a duty to stand up to it and call it by name.

Fourteen years ago, a PFAW memorandum (pdf) was released, focusing on the hateful rightwing speech on issues like racism, abortion, and LBGT rights.  It is no coincidence that names like Rush Limbaugh, Pat Robertson, Newt Gingrich, and Randall Terry rise to the top of both this fourteen year old memorandum and the news headlines of today.  In comparing this article to our current situation, it is easy to see that too little has changed in the last fourteen years.

People For stood up to hateful speech then, and we’ll continue to stand up to it as long as it takes.

After you read the memo, be sure to sign our petition calling on the Department of Homeland Security to reissue its report on rightwing extremism.
PFAW

Obama DOJ Invokes State Secrets For Second Time

This Washington Post recently had a story on a second instance of the Obama Department of Justice invoking "state secrets" in an effort to shut down a lawsuit challenging violations by the Bush Administration of individuals' constitutional rights.

The first instance, in February, came in the case of Mohamed et al. v. Jeppesen, a suit challenging a company's alleged participation in the rendition of terrorism suspects to countries where they suffered torture. At that time, People For the American Way decried the "blow to our much-needed efforts to restore justice." This time the lawsuit involves allegations by the al-Haramain Islamic Foundation that the federal government used warrantless wiretaps to gather information on the charity's board members and attorneys in violation of their due process and free speech rights.

The Post story reports that in addition to invoking the state secrets privilege to terminate the lawsuit -- thereby denying the charity its day in court -- the Justice Department is also threatening to remove the documents from the district court's custody to keep them out of the hands of the charity's lawyers. No doubt there must be a careful balancing of competing interests in these kinds of cases -- legitimate efforts to protect our nation's security versus holding the government accountable for violations of individuals' constitutional rights. But I must say the balancing that appears to be going on in these instances is making me pretty nervous.

PFAW

The Right Re-Tools as 'Resistance Movement'

Another week, another clear example of who is pulling the strings in the Republican Party. On Monday, Republicans in the Senate -- all 41 of them -- sent a letter to President Obama all but demanding that he re-nominate three of President Bush's nominees and threatening filibusters if the president does not do what they want with his future judicial nominations.

It was only a few years ago that the GOP wanted to eliminate the judicial filibuster entirely, telling anyone who would listen that every judicial nominee deserved an up-or-down vote without exception. Apparently, the Senate Republicans have the collective memory of a goldfish.

Of course, these senators' attempt to force "bipartisanship" at gunpoint, to coerce the president with threats, is one giant pander to their extreme right-wing base. The Far Right wants to maintain conservative majorities on the most powerful courts in the country. And they want senators to do everything in their power to block judges that don't meet their strict litmus tests on everything from Roe v. Wade and gay rights to free speech and the separation of church and state -- and much more.

This is one more example in a long list of the GOP marching in lockstep to the Radical Right's orders in just the last few weeks:

  • In the spirit of Rush Limbaugh's clarion call to conservatives to hope for President Obama's failure, 100% of the Republican caucus in the House voted against the majority's stimulus package last month.
  • Some Senate Republicans have been following through on the Radical Right's challenges to the president's Department of Justice nominees, this week moving to delay a floor vote on the confirmation of David Ogden.
  • And earlier this week, RNC Chairman Michael Steele was forced apologize to the real leader of his party after making some comments seen as critical of Rush Limbaugh -- proving that Limbaugh and other extremists are calling the shots within the party.

People For the American Way just released a very timely Right Wing Watch In Focus on the status of the Radical Right's strength and influence (available here). Please read it and share it with your friends and fellow activists.

There has been much talk in the media about the Republican Party and even the Conservative Movement being lost in the wilderness. But the leadership vacuum is being filled with the most fringe elements of that side of the political spectrum. The Far Right is stronger than ever ... and the weakness of one of the major parties has provided a huge opportunity for them to assert that strength.

AND we've released our own take on Limbaugh's recent comments which is a must watch. Please take a moment to watch the video and then send a message to Rush telling him to GROW UP. Then tell your friends to check it out at www.BabyRush.org.

PFAW

Republican Senators Make Threats on Judges, Try to Force "Bipartisanship" at Gunpoint

From Poltico:

President Barack Obama should fill vacant spots on the federal bench with former President Bush's judicial nominees to help avoid another huge fight over the judiciary, all 41 Senate Republicans said Monday.

...

"Regretfully, if we are not consulted on, and approve of, a nominee from our states, the Republican Conference will be unable to support moving forward on that nominee," the letter warns. "And we will act to preserve this principle and the rights of our colleagues if it is not."

In other words, Republicans are threatening a filibuster of judges if they're not happy.

The letter talks about "bipartisanship" and, separate from the letter, several Republicans have been warning the president for some time against nominating "far left judges." But for all this talk about "bipartisanship" and throwing terms around like "far-left judges," what do they really mean?

Does bipartisanship mean nominating half right-wing judges who would overturn Roe v. Wade and don't believe in the Constitution's promise of equal rights under the law; half who agree that the Constitution makes certain guarantees in terms of people's rights and liberties and that it gives the government the authority and the responsibility to protect those rights, not undermine them?

Or does it mean that all of the president's judicial nominees must be "moderates," and if so, what is their definition of "moderate?" Is a moderate someone who is respectful of fundamental constitutional rights and principles like privacy, equality, the right to choose and checks and balances… as long as they are pro-corporate? We already have a Supreme Court that is overwhelmingly pro-business, much more so than many precious Courts, including the four supposedly "liberal" Justices.

Of course that's probably not the case (not that the president should feel compelled to nominate judges with a corporate-friendly bent anyway, especially now that we are in the middle of the havoc wreaked by corporate greed and excess, but I digress).

When it comes to this issue, what they really care about is pleasing their base. And when it comes to their base, the ONLY judges who are acceptable are extreme right-wing ideologues. So any actual "moderate," mainstream judges of course will be rejected -- and they will be cast as "far-left."

The Right sees the Judicial Branch in very black and white terms. They have accused the Democrats of having a litmus test on judges when it comes to Roe v. Wade. But that was obviously proven wrong by the fact that both Chief Justice Roberts and Justice Alito were confirmed even though they both, according to many experts, would vote to overturn Roe. No, it's the Right that has strict litmus tests on everything from Roe v. Wade and gay rights to free speech, the separation of church and state and, yes, how "business-friendly" a judge may be. Their base demands it! And Republican Senators -- even the so-called moderates like Snowe, Collins and Specter -- are unified on this one.

The judicial philosophies of the jurists respected by the Right are defined by extremism -- plain and simple. It's one thing for a judge to find legal exception with the way a certain case was decided (even if that decision protects a fundamental right, like Roe v. Wade), but quite another to subscribe to theories and views that fly in the face of mainstream judicial thought like:

  • "Constitution in Exile," which takes an extreme and limited view of the Commerce Clause and basically states that the regulatory policies of the New Deal were unconstitutional... and a huge number of policies and Supreme Court decisions going back nearly a hundred years, including civil rights protections, are unconstitutional as well. (Opinions expressed by Clarence Thomas and Antonin Scalia support "restoring the lost constitution.")
     
  • "Unitary Executive Theory," which has been used to justify insanely expansive views of executive power that defy the most commonsense understanding of our founding principles relating to checks and balances and a limited executive (remember, our founders were breaking from a monarchy - they obviously didn't want to create another one). The Bush administration exploited this theory over and over again its now infamous abuses of executive power.; and
     
  • a blatant disregard for the bedrock judicial principle of stare decisis (which Justice Clarence Thomas is said, even by Justice Scalia, to show).  

This is par for the course for right-wing judges. While those of us on the progressive side are not devoid of ideology, and are proud to have our own ideology when it comes to the Constitution and the law, the Right is by far more ideological and Republicans need to be called out for doing the Far Right's bidding once again.
 
President Obama and the Senate Democrats should challenge these Republican Senators to define their terms more specifically -- to tell them and the country EXACTLY what they mean by "bipartisanship" in this case and what they would consider acceptable or "moderate" nominees.  And the president should reject the GOP's attempt to force bipartisanship at gunpoint, by making threats and trying to use coercion to get him to appease their base on judges.

PFAW