Supreme Court

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

Citizens United Impacts Ohio Senate Race

Senator Sherrod Brown, in this morning's debate over the DISCLOSE Act, noted an article in today's Columbus Dispatch demonstrating the great need for this law:

Before a U.S. Supreme Court ruling in January, the most Cincinnati billionaire Carl Lindner could directly contribute to Senate candidate Rob Portman was $4,800.

But because of a decision opening campaigns to corporate contributions, Lindner's American Financial Group was able to give 83 times that amount, $400,000 ... to American Crossroads, a group that former George W. Bush adviser Karl Rove helped create to aid GOP candidates. In mid-August, American Crossroads launched a statewide TV ad backing Portman's Senate candidacy.

In this case, a newspaper exposed the corporate spending. But that disclosure to the voters is the exception, not the rule. DISCLOSE would change that - and that's why Senate Republicans are fighting it tooth and nail.

It's worth noting that Portman's Democratic opponent, Lee Fisher, has signed People For the American Way and Public Citizen's Pledge to Protect America's Democracy and supports a constitutional amendment to correct Citizens United.

 

 

PFAW

Senator Sessions Can’t Get His Stories Straight

In a “Critical Judiciary Alert” released today on Facebook (where else?), Senator Jeff Sessions went on the attack against five of President Obama’s judicial nominees that the GOP has worked overtime to obstruct.

The whole piece is a fine example of the out of context scare quotes and blatant distortions that are the stock in trade for Senate Republicans trying to block President Obama’s judges. But it seems that Senator Sessions can’t even keep his arguments in line for the length of one piece.

Take for instance, his attacks against Jack McConnell, a nominee for the District of Rhode Island.

After McConnell’s questionable theory of liability against lead paint manufacturers was unanimously rejected by the Rhode Island Supreme Court, he publicly attacked the decision as letting “wrongdoers off the hook,” revealing a preference for outcome-driven judicial decisions.

Setting aside the fact that fighting against the ingestion of lead paint by children is apparently not a good thing in the eyes of the GOP, Sessions clearly doesn’t like “outcome-driven” judicial decisions (although any lawyer not looking for a positive outcome for his client, as McConnell was doing, seems like a pretty poor attorney to me.) Got it. Outcome driven rulings = bad.

But then, take a gander at Sessions’ attack on Louis Butler, a nominee for the Second Circuit and a former state judge.

In one case, he held that a manufacturer could be held liable for injuries from a product that, as the dissent explained it, the manufacturer “may or may not have produced, which may or may not have caused the plaintiff’s injuries, based on conduct that may have occurred over 100 years ago when some of the defendants were not even part of the relevant market.”

Why, it sounds like Sessions doesn’t like the outcome! And this unhappy outcome is apparently reason to think the judge is doing a poor job. Outcome driven rulings = good?

So what does Senator Sessions want? Outcomes that go his way, or judges who ignore political pressure to rule according to the law?

Of course, there might be a third option: It doesn’t matter. Senator Sessions will say whatever it takes to block judges nominated by President Obama.

PFAW

“The Money’s Flowing,” But From Where?

Michael Luo and Stephanie Strom of The New York Times profiled the rapid growth of political organizations that can receive unlimited contributions but do not have to disclose their donors. 501(c)(4) groups* have become more numerous, and unlike 527’s, do not have to reveal the sources of their funding, which is “arguably more important than ever after the Supreme Court decision in the Citizens United case earlier this year that eased restrictions on corporate spending on campaigns.”

“I can tell you from personal experience, the money’s flowing,” said Michael E. Toner, a former Republican F.E.C. commissioner, now in private practice at the firm Bryan Cave.

The growing popularity of the groups is making the gaps in oversight of them increasingly worrisome among those mindful of the influence of money on politics.

“The Supreme Court has completely lifted restrictions on corporate spending on elections,” said Taylor Lincoln, research director of Public Citizen’s Congress Watch, a watchdog group. “And 501(c) serves as a haven for these front groups to run electioneering ads and keep their donors completely secret.”

Almost all of the biggest players among third-party groups, in terms of buying television time in House and Senate races since August, have been 501(c) organizations, and their purchases have heavily favored Republicans, according to data from Campaign Media Analysis Group, which tracks political advertising.

These organizations are considered “social welfare” groups that are legally allowed to lobby on certain issues, but until Citizens United, were not permitted to explicitly urge voters to vote for or against a candidate. “As a result, rarely do advertisements by 501(c)(4) groups explicitly call for the election or defeat of candidates,” Luo and Strom write, “Instead, they typically attack their positions on issues.” That has changed dramatically since Citizens United, as seen in the rise of organizations like American Crossroads GPS. 501 (c)6 groups that are “business associations” like the US Chamber of Commerce and Americans for Job Security are “spending heavily in support of Republicans.”

But with weak and ineffective regulatory oversight, many of these political organizations disguised as “social welfare” groups can continue to hide their donors from the public eye:

In fact, the I.R.S. is unlikely to know that some of these groups exist until well after the election because they are not required to seek the agency’s approval until they file their first tax forms — more than a year after they begin activity.    

"These groups are popping up like mushrooms after a rain right now, and many of them will be out of business by late November,” Mr. Owens said. “Technically, they would have until January 2012 at the earliest to file anything with the I.R.S. It’s a farce.”    

Social welfare nonprofits are permitted to do an unlimited amount of lobbying on issues related to their primary purpose, but there are limits on campaigning for or against specific candidates.

I.R.S. officials cautioned that what may seem like political activity to the average lay person might not be considered as such under the agency’s legal criteria.



* People For the American Way is a 501(c)(4) organization.

 

 

PFAW

So Much for "Prompt Disclosure"

When the Supreme Court decided earlier this year to allow corporations to spend unlimited amounts of money to influence elections, the justices in the majority (save Justice Clarence Thomas) took care to note that “prompt disclosure” of political spending would allow citizens to hold candidates, and their funders, accountable. It’s a nice idea…but things haven’t exactly worked out that way.

Instead, Public Citizen reported last week, in the first election after Citizens United, groups funneling money to political activities have increasingly been hiding where their money comes from.

Only 32 percent of the organizations broadcasting electioneering communications in the 2010 primary season revealed in their filings with the Federal Election Commission (FEC) the identities of donors funding their advertisements, according to Public Citizen’s analysis of FEC filings. In contrast, nearly 50 percent revealed their donors in the 2008 election cycle, and close to 100 percent did so in the 2004 and 2006 cycles. Electioneering communications are campaign ads run shortly before elections that focus on candidates but don’t expressly urge a vote for or against them.

Only 10 percent of Republican groups disclosed their funders, in contrast to 50 percent of Democratic groups.

This shouldn’t come as a surprise. As Target learned the hard way this summer, shareholders, consumers, and voters aren’t particularly keen on large corporations bankrolling political campaigns. Funneling money through secretive groups allows corporate political spenders to have the best of both worlds: they can fund the campaigns of candidates favorable to them, and never have to be held accountable.

An attempt this summer to patch up the loophole that allows corporations to keep their election spending secret ran up against stiff opposition from corporate lobbyists and a unified filibuster from the GOP. President Obama summed up the result in his weekly radio address Saturday:

What is clear is that Congress has a responsibility to act. But the truth is, any law will come too late to prevent the damage that has already been done this election season. That is why, any time you see an attack ad by one of these shadowy groups, you should ask yourself, who is paying for this ad? Is it the health insurance lobby? The oil industry? The credit card companies?

But more than that, you can make sure that the tens of millions of dollars spent on misleading ads do not drown out your voice. Because no matter how many ads they run – no matter how many elections they try to buy – the power to determine the fate of this country doesn’t lie in their hands. It lies in yours. It’s up to all of us to defend that most basic American principle of a government of, by, and for the people. What’s at stake is not just an election. It’s our democracy itself.

This fall, the Senate will have another chance to bring the DISCLOSE Act to a vote. As the New York Times pointed out yesterday, the vote should be a no-brainer for moderate senators like Susan Collins and Olympia Snowe of Maine:

The Citizens United decision, paradoxically, supported greater disclosure of donors, but Senate Republicans have filibustered a bill that would eliminate the secrecy shield. Just one vote is preventing passage. That act is coming back for another Senate vote. The two Republican senators from Maine, Susan Collins and Olympia Snowe, might want to read a recent poll by the Maine Citizens for Clean Elections, which showed that 80 percent of the state’s voters support public disclosure.

In a poll we commissioned in June, 85% of Americans said that corporations already have too much influence over the political process. Voters want information. Will Congress provide it?
 

PFAW

Obama Speaks Out, Again, on Citizens United

While addressing a fundraiser in Connecticut for Attorney General Richard Blumenthal, who is running against self-funding multimillionaire Linda McMahon, President Obama laid into the Supreme Court’s Citizens United decision and its devastating consequences. With the possibility of the Senate passing a new version of the DISLCOSE Act, which would mitigate the Supreme Court’s ruling by requiring political organizations to publicly disclose its financial backers, President Obama reminded us again on why Citizens United is so dangerous to democracy:

This is a tough election season. People are hurting and they are understandably frustrated. And a lot of them are scared. And a lot of them are anxious. And that means that even when people don't have ideas, if they've got enough money behind them, they may be able to convince some folks that, you know what, just cast a protest vote, throw the bums out. That's a mentality that has an appeal. And you can't blame folks for feeling that way sometime. But that's not a future for our country, a country that's more divided, that's more unequal, that's less dynamic, where we're falling behind in everything from investment in infrastructure to investment in R&D. That's not a vision for the future.

And if that's not a future you accept for this nation, if that's not the future you want for your kids and for your grandkids, then we are asking you for help in this election.


Because if you don't think the stakes are large -- and I want you to consider this -- right now, all across the country, special interests are planning and running millions of dollars of attack ads against Democratic candidates. Because last year, there was a Supreme Court decision called Citizens United. They're allowed to spend as much as they want without ever revealing who's paying for the ads. That's exactly what they're doing. Millions of dollars. And the groups are benign-sounding: Americans for Prosperity. Who's against that? Or Committee for Truth in Politics. Or Americans for Apple Pie. Moms for Motherhood. I made those last two up.


None of them will disclose who's paying for these ads. You don't know if it's a Wall Street bank. You don't know if it's a big oil company. You don't know if it's an insurance company. You don't even know if it's a foreign-controlled entity. In some races, they are spending more money than the candidates. Not here because here the candidate is spending a lot of money. They're spending more money than the parties. They want to take Congress back and return to the days where lobbyists wrote the laws. It is the most insidious power grab since the monopolies of the Gilded Age. That's happening right now. So there's a lot of talk about populist anger and grassroots. But that's not what's driving a lot of these elections.


We tried to fix this, but the leaders of the other party wouldn't even allow it to come up for a vote. They want to keep the public in the dark. They want to serve the special interests that served them so well over the last 19 months.


We will not let them. We are not about to allow a corporate takeover of our democracy. We're not about to go back to the days when special interests took advantage of Main Street families. We're not going to go back to the days when insurance companies wrote the rules that let you languish without health care because you had a preexisting condition. We're not going to go back to the exact same agenda we had before I took office.

PFAW

PFAW Sends Letters to GOP Leaders Urging them to Denounce Fischer, Skip Values Voter Summit

People For's President, Michael Keegan, sent the following letter today to Virginia Governor Bob McDonnell, Minnesota Governor Tim Pawlenty, Minnesota Rep. Michele Bachmann, Indiana Rep. Mike Pence, former Arkansas Governor Mike Huckabee, and former Massachusetts Governor Mitt Romney, and Delaware Senate candidate Christine O'Donnell, all of whom are scheduled to appear this weekend at the Values Voter Summit, alongside the virulently anti-Muslim and anti-gay Bryan Fischer.

Dear ________:

I am writing to express my concern about your appearance this weekend at the upcoming Values Voter Summit. Among the participants this weekend will be Bryan Fischer of the American Family Association. We urge you to publically denounce Fischer’s record of hate speech and extremism, and reconsider appearing beside him this weekend.

People For’s RightWingWatch.org blog has tracked Fischer’s career over the past several years. His long and prolific record of hate speech and extremism includes the following recent statements. Just in the past year, Fischer has:

I am attaching the names of over 6,500 concerned citizens who have signed the following letter regarding your participation in the summit:

Values Voter Summit Participants:

Reasonable people can, and do, have reasonable differences of opinion. Bryan Fischer, of the American Family Association, is not a reasonable person.

By sharing a stage with Fischer at this year's Values Voter Summit, public figures acknowledge the credibility of his shameless anti-Muslim and anti-gay propaganda. Any candidate thinking seriously of running for president in 2012 should think twice about standing alongside a man who has called for the deportation of all Muslims in America; insulted Muslim servicemembers; claimed that brave Americans died in vain because Iraq was not converted to Christianity; and called gay people deviants, felons, pedophiles and terrorists. Bryan Fischer is no mainstream conservative. And neither is any person who shares a platform with him while refusing to denounce his hate-filled propaganda.

We urge you to denounce Fischer's extremism and separate yourself from his comments.

For more background on Fischer’s extreme rhetoric, please click here.

Fischer’s appearance with conservative leaders such as yourself lends his extreme hate speech credibility. We urge you to publicly denounce Fischer’s record and to think twice about sharing the stage with him.

Sincerely,

Michael B. Keegan
President, People For the American Way

 

PFAW

Women Are Not WorthLess

With time running short in the 111th Congress, National Women’s Law Center wants the Senate to know that Women Are Not WorthLess.

National Women’s Law Center produced this new video as part of their ongoing efforts to pass the Paycheck Fairness Act, which People For the American Way supports, along with American Association of University Women, American Civil Liberties Union, National Committee on Pay Equity, and hundreds of other organizations and countless advocates nationwide.

Equal pay in America needed to be put back on track after the Supreme Court’s devastating Ledbetter v. Goodyear ruling, and the Lilly Ledbetter Fair Pay Act answered that call – as the first major milestone of the Obama Administration. Still, this new law cannot on its own do the job of eliminating the wage gap. Additional tools are necessary to bring equality to the workplace and prevent further disturbing incidents like the one that befell Lilly Ledbetter. Especially in this unsteady economy, people who are struggling to pay their bills shouldn’t have to worry about whether they are being discriminated against in the workplace. We need the Paycheck Fairness Act.

It was way back in January 2009 that the House passed the Paycheck Fairness Act. Please join National Women’s Law Center and Women Are Not WorthLess in calling on the Senate to do the same and send this important legislation to the President’s desk.

PFAW

The Citizens United Fallout Reaches Ohio

Since the Supreme Court’s decision in Citizens United v. FEC, state-level laws regulating corporate election spending have been crumbling. Today, yet another bit the dust:

An agreement between Ohio elections officials and an anti-abortion group voids a state ban that kept businesses and unions from funding pre-election broadcast ads in support of specific candidates.

The Wednesday agreement in U.S. District Court in Columbus settles part of a 2008 lawsuit brought by Ohio Right to Life Society Inc. against the Ohio Elections Commission and Secretary of State Jennifer Brunner. It follows a January U.S. Supreme Court decision that strikes down a similar federal ban.
 

PFAW

Is “Eagerness to Obstruct” a Requirement for New GOP Senators?

Yesterday, former New Hampshire Attorney General Kelly Ayotte narrowly defeated Tea Party insurgent Ovide Lamontagne in the state’s Republican senate primary.

Ayotte is hardly a political moderate—Sarah Palin has anointed her a “Mama Grizzly”—but that didn’t keep her from being attacked from the right. One of Lamontagne’s charges against her? Ayotte said that if she were in the Senate she would have voted to confirm Supreme Court Justice Sonia Sotomayor.

Lamontagne’s full-on attack on Ayotte for conceding that Sotomayor was qualified to sit on the Supreme Court helped to propel him to within 2,000 votes of the much better-known, better-funded Ayotte. In addition to a lengthy screed on “Obama Judges” on his website, Lamontagne got a leg up from the conservative Judicial Crisis Network, which spent $50,000 on an ad campaign attacking Ayotte for her Sotomayor support.

Never mind that in 2009, a full nine Republican senators voted to confirm Sotomayor—including New Hampshire Senator Judd Gregg, who said of the nominee, “Her views and decisions, although strongly stated, are certainly not out of the mainstream of American jurisprudence or political thought."

Cooperating with the president to put moderate judicial nominees on the bench is apparently no longer a legitimate GOP position. Gregg (who is vacating the seat Ayotte is seeking) was one of only five Republicans to vote to confirm Supreme Court Justice Elena Kagan this spring. But the Kagan vote was an example of outright bipartisan bonhomie compared with the GOP’s stand on lower court nominees. Fewer Obama nominees have made their way through the Senate than under any president since Nixon—in a large part the result of the GOP’s unified refusal to vote on even those nominees with no Republican opposition.

By the time the Kagan nomination came around, Ayotte had learned her lesson on moderate judicial nominees, and issued a statement panning the Solicitor General. Ayotte’s struggle shows the enormous amount of energy the Right is spending on obstruction as a strategy in itself—and the danger for those who occasionally try saying something other than “No.”

 

 

PFAW

"Don't Ask Don't Tell" Is Held Unconstitutional

Yesterday in a California courtroom, the already decaying edifice of anti-LGBT discrimination crumbled just a little bit more: U.S. District Judge Virginia Phillips ruled that Don't Ask Don't Tell violates the United States Constitution. Specifically, she held that DADT violates servicemembers' Fifth Amendment due process rights and their First Amendment speech rights.

With regard to the due process aspect, Judge Phillips cited Lawrence v. Texas, the 2003 case where the Supreme Court struck down the Texas law criminalizing consensual sex between two people of the same sex. In Lawrence, the Court held that intimate consensual sex is part of the fundamental constitutional right to privacy.

Since a fundamental constitutional right is at stake, Judge Phillips analyzed DADT using a higher level of scrutiny than rational basis: In order for DADT to stand, (1) it must advance an important governmental interest, (2) the intrusion on constitutionally protected intimate conduct must significantly further that interest, and (3) the intrusion must be necessary to further that interest.

Recognizing that judicial deference to Congress is traditionally highest in the context of legislation regulating the military, Judge Phillips correctly noted that "deference does not mean abdication." She carefully examined the evidence provided by the government and found that the Administration failed to demonstrate that DADT significantly furthers the government's interests in military readiness or unit cohesion, the second prong of the constitutional analysis.

Furthermore, the evidence presented by the plaintiffs demonstrated that DADT actually frustrates military readiness and unit cohesion: Qualified servicemembers are discharged under DADT during wartime troop shortages (the same shortage that pressures the military to ramp up "moral waivers" to admit far less qualified convicted felons); servicemembers with critically needed skills and training are discharged; DADT hurts recruiting efforts; and DADT diminishes the otherwise merit-based nature of the military.

Judge Phillips also cited damning evidence that the military doesn't believe its own propaganda about DADT:

Defendants routinely delayed the discharge of servicemembers suspected of violating the Act's provisions until after they had completed their overseas deployments. . This evidence, in particular, directly undermines any contention that the Act furthers the Government's purpose of military readiness, as it shows Defendants continue to deploy gay and lesbian members of the military into combat, waiting until they have returned before resolving the charges arising out of the suspected homosexual conduct. If the warrior's suspected violation of the Act created a threat to military readiness, to unit cohesion, or to any of the other important Government objectives, it follows that Defendants would not deploy him or her to combat before resolving the investigation.

Judge Phillips is right: DADT makes no sense and it violates the Constitution. The House of Representatives has already voted to consign this discriminatory policy to the ash heap of history. It's time for the Senate to do the same and send a bill to the President's desk.

PFAW

Alabama County Brings the Voting Rights Act to Court

An 87% white county in Alabama is arguing that some of the anti-discrimination protections in the Voting Rights Act are no longer necessary…and its case might end up in the Supreme Court.

Shelby County is protesting Section 5 of the Voting Rights Act, which requires counties with a history of discriminatory election practices to run new election rules by the Justice Department.

"For Congress to continue to interfere with Shelby County's electoral autonomy in 2010 based on conditions that existed in 1965 is both arbitrary and without constitutional justification," according to one of the county's written arguments in the case.

Shelby County's complaint is that Section 5 of the law -- which says the Justice Department has to make sure election-related changes don't discriminate against minority voters -- is no longer necessary and that complying with the law is a significant legal expense for county taxpayers.

The county, however, does not provide any details about the "taxpayer dollars, time and energy" it has spent over the years asking the federal government to pre-approve things like new district lines or polling place changes. The U.S. Justice Department, the defendant in the lawsuit, argues the claim about expenses is vague and unsupported by evidence.

A number of African American residents of Shelby County disagree that voter discrimination is an outdated problem, and have tried to stop the county’s suit from going forward. They have some concrete examples to back them up. Just in 2008, a redistricting plan for one city in Shelby didn’t pass Justice Department muster because it eliminated the city’s one majority-black council district.

Shelby County’s argument recalls some of the right-wing objections to the 2006 renewal of the Voting Rights Act. Georgia Republican Lynn Westmoreland said of the 1965 bill, "It was set up to be temporary, just to get things to where they should be," he said. "And if you look at the results we have here in Georgia, I think you can see that it's worked. Its time has passed."

If only it had.
 

PFAW

Corporate Groups take aim at Hodes in New Hampshire

What happens when a principal leader in the fight for greater corporate accountability runs for higher office? He becomes the target of a tremendous and misleading assault by new corporate-backed groups that have gained new prominence in the wake of Citizens United.

As one of the first leaders to introduce a Constitutional Amendment to overturn the Supreme Court’s 5-4 decision Citizens United, New Hampshire Congressman and Senate candidate Paul Hodes understands the risks posed by swelling corporate power. He has also signed the Pledge to Protect America’s Democracy, which asks candidates to give Congress back the right to curtail electoral spending by corporations.

Pro-corporate organizations such as the Chamber of Commerce and the American Action Network have started to pummel Hodes with ads in order to tear down his run for the open Senate seat vacated by Sen. Judd Gregg, one of Wall Street’s champions in Congress. The Chamber of Commerce, which has pledged to spend $75 million altogether in the 2010 elections, has already committed $1 million to criticize Hodes over the airwaves. Political Correction describes the Chamber of Commerce’s anti-Hodes advertisement as “deeply dishonest” and responsible for employing grandiose and embellished allegations regarding health care reform.

The American Action Network has spent $500,000 against the Congressman, which is unsurprising since the organization is led by a mix of Wall Street moguls and their advocates. Their ads in the New Hampshire race have come under such scrutiny that even a former Republican state senator who is supporting GOP frontrunner Kelly Ayotte co-wrote an op-ed which claims that the group’s ad campaign against Hodes is filled with “gross inaccuracies” that “corrode public confidence in the political process, and are completely contrary to the national interest.”

According to Democracy 21, even though these groups are spending large sums attacking progressive champions like Paul Hodes, they have not disclosed their donors to the FEC. Kenneth Doyle of the good-government group writes that the Chamber “provided no information in their FEC reports about where they get the millions of dollars used to pay for their political advertising.” Like the Chamber, the American Action Network “provided no information about any donors supporting the group’s campaign efforts.” Consequently, New Hampshire voters may never know which corporations or individuals are behind the enormous endeavor to vilify Paul Hodes and his effort to rein in corporate clout in government and abuses on Wall Street.

PFAW

Joe Miller’s Dangerous Views on Women’s Rights

After his dramatic upset win, Alaska Republican Joe Miller took a stunningly distasteful route when tweeting about his opponent: Senator Lisa Murkowski. Rumors in Alaska were flying that Murkowski, who is trailing Miller with vote totals without absentees and early-votes counted, would run in the general election even without the Republican nomination. Miller responded with this mind-boggling post about his rival:

Of course, Miller’s campaign promptly removed the Tweet and denied that the candidate was the author. Facing criticism, the campaign released a statement claiming that the author was referring to Alaska’s Libertarian Party, not the Senator.

But in light of this sexist outburst, no matter who wrote it, it’s worth asking what Miller’s attitude is towards women when it comes to writing laws.

The answer is that the Tea Party-loved, Sarah Palin-backed “small government conservative” has a very intrusive view of the government’s role in women’s lives and family decision-making: He opposes a woman’s right to choose in nearly all cases, believing that an abortion should be legal only when a woman’s life is endangered. He does not support exceptions for rape and incest, and is a staunch supporter of Measure 2, a referendum that passed with 55% of the vote, which forces minors to obtain the consent of their parents in order to have an abortion. In the case of sexual assault by a family member, minors can receive a “judicial bypass” from the Supreme Court, but can only petition the Court with the authorization of an adult family member or a law enforcement officer.

The American Academy of Pediatrics, National Association of Social Workers and the YWCA all opposed the law, citing the lack of protections for girls who are homeless and the victims of abuse, incest, or rape. According to the Juneau Empire: “a girl who is struggling with an unwanted pregnancy, and is suffering abuse at home (maybe even the awful damage of incestuous rape),” because of Measure 2, “would be forced to either deal with the consequences of revealing this pregnancy to an abuser, or relive the abuse in a written statement before she is psychologically ready to do so.”

Miller is the preferred candidates of the right-wing Alaska Family Council, whose mission is to “to hold our public officials accountable to a higher law - the law of God.” He also strongly opposes comprehensive sex-education and stem-cell research, while a champion of the “global gag rule,” or the prohibition of US funding to family planning services and the groups that promote them.

The more combative Tea Party-style of campaigning by candidates such as Joe Miller, who previously paraded with assault weapon-wielding supporters, promotes a cold political agenda that sees government with little-to-no role in helping or protecting the elderly and disabled, low-income families, the unemployed, the uninsured, or victims of hate crimes. However, Miller believes in a severely expansive and invasive role for government when it comes to decisions over women’s bodies.

PFAW

48 Congressional Candidates have signed the Pledge to Protect America’s Democracy—Find Out Where Your Candidates Stand

Last month, we started asking candidates for Congress to sign a pledge to support a constitutional amendment to reverse the Supreme Court’s decision in Citizens United, and stop unlimited corporate spending in elections.

Today, we’re announcing the first batch of signers. 48 House and Senate candidates from across the country have signed the Pledge to Protect America’s Democracy—you can find out who’s signed, who’s refused and who’s on the fence using our handy candidate map. Then you can call the candidates in your state who haven’t signed yet and urge them to fight against corporate influence in elections.

Public Citizen, our partner in the campaign, put together this video about the pledge and why it matters:
 

PFAW

Disclosure Laws Under Attack

Even after the Supreme Court's Citizens United decision rolled back longstanding state and federal laws that attempted to limit corporate influence in democracy, opponents of any type of campaign finance rules have redoubled their efforts to weaken transparency in elections. Two right-wing political organizations and a business group recently sued to block the state of Minnesota from enforcing campaign disclosure and donation laws. They are seeking an injunction to prevent the implementation of the state's rule for corporations to disclose their political activities. In addition, they "seek to overturn prohibitions on corporations contributing directly to campaigns and parties." Currently, as a result of Citizens United, corporations can fund advocacy groups who can support and oppose certain candidates, but not the candidates themselves. If their lawsuit is successful, corporate financing of campaigns would expand to even greater levels.

Due to the state's current disclosure rules, donations from companies such as Target and BestBuy to the right-wing group MN Forward came to light. Without the DISCLOSE Act, organizations involved in federal elections are already able to conceal their donors, and President Obama recently warned against "a flood of attack ads run by shadowy groups with harmless-sounding names." "They don't want you to know which interests are paying for the ads," Obama said; "The only people who don't want to disclose the truth are people with something to hide."

If the plaintiffs in Minnesota (which includes a for-profit business and two conservative non-profits: the Taxpayers League of Minnesota and Minnesota Citizens Concerned for Life) are successful, not only would corporations be allowed to hide their political financing from the public, but may even be able to directly contribute to the campaigns of candidates for public office.

It is already extremely difficult, especially without the DISCLOSE Act, to discover corporate financing of political groups. As a report by the Washington Post explains:

Long-standing IRS regulations require some groups to reveal their donors, and that is why the agency suddenly finds itself with what some might see as a more crucial watchdog role, stepping in to monitor disclosure in the absence of the FEC. But the IRS rules also have long-standing loopholes and, with limited resources and enforcement tools, the nation's tax collector is not set up to be a campaign regulator.

"The chances of the IRS being able to catch a violation of the tax law around campaigns is virtually nil," said Marcus S. Owens, a lawyer with Caplin & Drysdale who directed the agency's tax-exempt organizations division for 10 years. "Certainly if it happens, it's going to be well after the election has already ended."

As the assault on the remaining campaign disclosure laws intensifies, spending in elections is about to climb to new heights. Borrell Associates predicts that the Citizens United decision will lead to $400 million in new ads this election season, and that "political ad spending will reach $4.2 billion this year, double the $2.1 billion the firm estimated was spent in 2008."

But the most serious opponents of the effort to shed light on corporate financing in elections are obstructionists in the Senate: the Republicans who vote lock-step to prevent the DISCLOSE Act from coming up for an up-or-down vote. President Obama's call for the Senate to reconsider the DISCLOSE Act, which already passed the House, reminds us that the fight against the enormous corporate clout in our democracy is not over:

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The Price of Justice

The Brennan Center for Justice, Justice at Stake, and the National Institute on Money in State Politics released a startling report today on the skyrocketing cost of state Supreme Court elections. The amount of money spent on state judicial races in the 38 states that have them has more than doubled in the 2000-2009 decade compared to the decade before, the report finds—and most of it has come from big spenders with big agendas, such as the Chamber of Commerce and trial lawyers’ groups.

The sway of big money over judicial elections, the report argues, is only likely to intensify in the post-Citizens United world, where big spenders will be able to pour more money into judicial races while “using shell organizations to keep their role out of the public eye.”

Take the case of Louis Butler, a Wisconsin Supreme Court justice who was nominated to fill a vacancy in the court in 2004, and four years later ran for a full term. Shortly after losing the election in 2008, Butler described his experience in a panel discussion at Georgetown. NPR reports:

"Wisconsin Manufacturers and Commerce decided at that point that: 'OK, we've had this court for all these years, we never had to worry about how the court voted. We get this new guy on the court, and all of a sudden we lose these three cases,' " Butler said. " 'He's gotta go.' "

And go he did, with the help of ads that tried to portray Butler, a former public defender, as soft on crime. One ad sponsored by the manufacturers and commerce group, the state's largest business lobby, began this way: "When our children go to school, they need to be safe. In our homes and neighborhoods, we need to be safe. Our sheriffs and district attorneys are on the front lines, protecting us. And you know what? Our judges need to know they also must protect us."

Executives at Wisconsin Manufacturers and Commerce, the state's largest business advocacy group, say they were only protecting themselves when they spent $1 million on television ads against Butler. James Buchen, an executive at Wisconsin Manufacturers, said the court under Butler had ruled to expand punitive damage awards and malpractice claims under a fragile 4 to 3 majority.

President Obama has since twice nominated Butler to a federal judgeship—and Senate Republicans have twice sent his nomination back.

Corporate courts—whether elected or appointed—don’t happen by accident. And after Citizens United, the fight to keep courts from having pro-corporate biases has become even harder.
 

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We’re on the Air in Iowa

One of the more baffling lines Republican lines of attack against Supreme Court Justice Elena Kagan during her Senate confirmation hearings was the accusations of guilt-by-association with civil rights hero Justice Thurgood Marshall.

Many of Marshall’s critics tried to backtrack after realizing that criticizing the man who led the effort to desegregate American schools, and eventually became the first African American Supreme Court Justice, wasn’t exactly wise. But we don’t think they should be allowed to bury their attacks.

This week, People For went on the air in Iowa with a radio ad about Sen. Charles Grassley’s participation in the GOP’s anti-Marshall crusade. You can listen to it here.

And for more on why Grassley’s attacks on Marshall were so off-base, read People For board member Julian Bond’s op-ed in the Des Moines Register: “GOP attacks on Marshall echo anti-civil rights message of 1960s.”

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Corporate Spending Run Amok in Florida

One week before the Florida primary, Republican candidates Rick Scott and Bill McCollum have spent a combined $51.2 million in the fight for their party’s nomination for governor. Rick Scott, the former head of the HCA/Columbia hospital conglomerate, already spent close to $38 million on his gubernatorial bid. In order to compete with Scott’s massive self-financed war chest, Bill McCollum, a former congressman and Florida’s current attorney general, has reached out to corporations to back his campaign.

Two political action committees have emerged to support McCollum’s campaign: the Sunshine State Freedom Fund and the Florida First Initiative. The Sunshine State Freedom Fund has received tens of thousands of dollars from corporations, including a $25,000 donation from the car dealership chain AutoNation.

The McCollum-allied Florida First Initiative obtained even more money from corporate backers, receiving $100,000 from Progress Energy and $50,000 from the insurance company Blue Cross Blue Shield. Most noticeably, the League of American Voters Inc. donated a whopping $600,000 to the Florida First Initiative. But as Steve Bousquet and Marc Caputo of the Miami Herald point out, the League of American Voters “does not have to disclose its donors under federal tax law because it is a 501(c)4 nonprofit activist group.”

However, the reporters found out that the “secretive political committee” received a large amount of its funding from U.S. Sugar Corp. In fact, according to Bousquet and Caputo, U.S. Sugar Corp. is spending around $1.1 million altogether to prop up McCollum’s campaign for governor. U.S. Sugar Corp’s enormous funding to back Attorney General McCollum is especially troubling considering that the State of Florida is currently purchasing land from the same corporation, a project that involves the Attorney General’s office and the state’s future governor.

As a result of the Supreme Court’s Citizens United decision, we may see Florida-like levels of corporate involvement elsewhere. Already in states like Minnesota, where barriers to corporate electioneering came down following the Citizens United ruling, corporations have dramatically increased their role in supporting particular candidates for office. Because of Citizens United, the enormous amount of corporate election spending witnessed in Florida may become the norm in other races across the country.

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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.
 

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