“The Real IRS Problem”: The Post Citizens United Explosion Of Undisclosed Political Campaign Spending
Americans of all political stripes should be outraged at the recent revelation that the Tea Party was unfairly targeted by the IRS before last year’s election. The IRS should never base its decisions on political preferences or ideological code words, regardless of what bureaucratic challenges it may face. But the lesson that the right is drawing from the IRS’s misdeeds — the lesson that threatens to dominate the public conversation about the news — is wrong.
We’re seeing a knee-jerk reaction, particularly from the Tea Party and their allies in Congress, that is threatening to turn the IRS’s mistakes into an indictment of “big government” writ large. Some are already trying to tie the scandal to the Right’s favorite target, Obamacare, and to the Benghazi conspiracy theory.
The danger of this frame is that it will discourage the IRS from fully investigating all nonprofit groups spending money to influence elections. And it will distract from the core problem behind the IRS’s mess: the post-Citizens United explosion of undisclosed electoral spending.
Before the Supreme Court’s decision in Citizens United, only a limited number of nonprofit 501c(4) groups could spend money to influence elections — those who did not take contributions from corporations or unions. But Citizens United lifted restrictions on corporate spending in elections, setting the stage for individuals and companies to funnel unlimited money through all corporations, including c(4)s and super PACs in an effort to help elect the candidates of their choice. Spending by c(4)s has exploded since Citizens United, since the decision allowed any c(4) nonprofit corporation that didn’t spend the majority of its money on electoral work to run ads and campaign for and against candidates. And c(4)s, as long as they follow this rule, don’t have to disclose their donors under the laws currently in place.
The IRS, then, was forced to play a new and critical role in policing this onslaught of electoral spending. IRS officials clearly made poor choices in how to confront this sudden sea change and those mistakes should be investigated and properly addressed. But strong oversight of this new wave of spending remains critically important and clearlywithin the IRS’s purview.
If we let understandable concerns about bad decisions by the IRS lead to weakening of campaign finance oversight, our democracy will be the worse off for it. Instead, we should insist that the government strengthen its oversight of electoral spending — equally across the political spectrum. We should pass strong disclosure laws that cover all political spenders, including c(4)s. And we should redouble our efforts to overturn Citizens United by constitutional amendment and reel back the flood of corporate money that led the IRS to be in this business in the first place.
By: Michael B. Keegan, The Blog, The Huffington Post, May 15, 2013
When the Maine State House voted 111-33 this week to call for a constitutional amendment to overturn the US Supreme Court’s ruling in Citizens United v. Federal Election Commission, the support for this bold gesture was notably bipartisan. Twenty-five Republicans joined four independents and all eighty-two Democrats to back the call.
Similarly, when the Maine State Senate voted 25-9 for the resolution, five Republicans joined with nineteen Democrats and independent Senator Richard Woodbury to “call upon each Member of the Maine Congressional Delegation to actively support and promote in Congress an amendment to the United States Constitution on campaign finance.”
What happened in Maine this week was a big deal for several reasons:
1. Maine became the thirteenth state to urge Congress to develop an amendment to address the money-in-politics crisis that is unfolding as a result of Supreme Court rulings that that have effectively struck down campaign-finance regulations and ushered in a new era of unlimited spending by wealthy individuals and corporate interests. Maine joins West Virginia, Colorado, Montana, New Jersey, Connecticut, Massachusetts, California, Rhode Island, Maryland, Vermont, New Mexico and Hawaii in calling for an amendment. Washington, DC, has also backed the drive.
2. The swift action by both houses of the Maine legislature, coming less than a month after West Virginia urged Congress to act, confirms the momentum that is building for the movement, which has been backed by almost 500 communities nationwide. Though media coverage has been scant, it is rare in recent history for a grassroots movement to amend the constitution to have attracted so much official support at the municipal, county and state levels nationwide.
3. As in a number of other states, the significant level of bipartisan support in Maine provides a reminder that this movement is attracting support from across the partisan and ideological spectrum.
That final point merits particular attention.
Because of the often narrow and simplistic way in which political debates are covered in the United States—if they are covered at all—there is a tendency to think that all Democrats are reformers, while all Republicans are backers of big money in politics. That’s not the case. Polling has consistently shown that Republicans support for restrictions on corporate spending in elections very nearly parallels that of Democrats. And, while there are too many national Democrats who buy into big-money equations, there are Republicans who have begun to raise the right objections—and point to the right answers. Notably, Congressman Walter Jones Jr., a very conservative Republican congressman from North Carolina, is a cosponsor—along with Kentucky Democrat John Yarmuth—of a constitutional amendment proposal that would overturn key provisions of the Citizens United decision and establish that campaign contributions can be regulated by Congress and state legislatures.
Bipartisan support for reform is more evident in the states. State legislators are active at the grassroots, knocking on doors and meeting constituents face to face. They recognize the deep frustration with a political process that seems to have spun out of control, and they reject the premise that corporations and wealthy individuals have a constitutional right to buy elections.
“There has to be a way to secure First Amendment rights to speech and still control the amount of dollars spent on campaigns,” says Maine state Senator Edward Youngblood, a Republican who went so far as to appear at rallies calling for a constitutional amendment. “It should be plain to everyone after the election we’ve just had, which broke records for spending, that the system isn’t getting better.”
Youngblood is right, and the group that organized support for reform in his state, Maine Citizens for Clean Elections, wisely reached out to Democrats, Republicans, independents and third-party backers in pursuit of a “multi-partisan” coalition.
The approach has excited national groups such as Public Citizen’s Democracy Is for People Campaign, Move to Amend and Free Speech for People. Indeed, Free Speech for People’s Peter Schurman declared, “This terrific bi-partisan vote is a huge win, not only for Maine, but for all Americans. Republicans, independents, and Democrats alike are clamoring for a constitutional amendment to reverse Citizens United and bring back real democracy. We’re thrilled that Maine is now helping lead the way forward.”
He’s right, especially when it comes to the emphasis on drawing support from all parties for a reform that seeks to restore genuine competition based on ideas—as opposed to a shouting match between billionaires.
By: John Nichols, The Nation, May 1, 2013
“Nullification, Symbolism Over Substance”: How States Are Making It A Felony To Enforce Federal Gun Laws
In mid-April, Kansas passed a law asserting that federal gun regulations do not apply to guns made and owned in Kansas. Under the law, Kansans could manufacture and sell semi-automatic weapons in-state without a federal license or any federal oversight.
Kansas’ “Second Amendment Protection Act” backs up its states’ rights claims with a penalty aimed at federal agents: When dealing with “Made in Kansas” guns, any attempt to enforce federal law is now a felony. Bills similar to Kansas’ law have been introduced in at least 37 other states. An even broader bill is on the desk of Alaska governor Sean Parnell. That bill would exempt any gun owned by an Alaskan from federal regulation. In Missouri, a bill declaring federal gun laws “null and void” passed by an overwhelming majority in the state House, and is headed for debate in the Senate.
Mobilizing the pre-Civil War doctrine of “nullification,” these bills assert that Congress has overstepped its ability to regulate guns — and that states, not the Supreme Court, have the ultimate authority to decide whether a law is Constitutional or not.
The head of the Kansas’s State Rifle Association, an affiliate of the National Rifle Association, says she put the bill together and found it a sponsor. While the NRA regularly lauds passages of states’ gun-rights laws, it stayed silent on Kansas’ law, and, so far, has kept a low profile on nullification. (The group did not respond to our requests for comment.)
Many observers see nullification bills as pure political theater, “the ultimate triumph of symbolism over substance,” as UCLA law Professor Adam Winkler put it. He said he doubts the laws will ever be enforced, and, if they are, expects them to be struck down by the courts.
Winkler and others say nullification laws violate the Constitution, which makes federal law “the supreme law of the land…anything in the Constitution or laws of any State to the contrary notwithstanding.” Indeed, U.S. Attorney General Eric Holder wrote a letter last week to Kansas governor Sam Brownback, asserting that Kansas’ law is “unconstitutional.” (Brownback, who signed the bill into law, did not immediately respond to our requests for comment.)
But the growing number of such bills — which have passed by large majorities in at least one chamber of seven state legislatures–highlight the challenge gun control advocates face in their attempt to fight for gun regulation at the state level.
It also shows how nullification is fast becoming a mainstream option for state politicians. In Pennsylvania, 76 state legislators signed on to sponsor a measure that would invalidate any new federal ban of certain weapons or ammunition. The bill would impose a minimum penalty of one year in prison for federal agents who attempt to enforce any new law.
Supporters of nullification are not simply frustrated at what they see as congressional and presidential overreach. During a hearing about one of the nullification bills she had introduced, Tennessee state senator Mae Beavers called the Supreme Court a “dictatorship.”
“You think that the Supreme Court is the ultimate arbiter of any of these laws. I don’t believe that. I don’t believe it was ever granted the authority under the Constitution,” Beavers was quoted as saying in The Tennessean. (Reached by phone, she asked to comment later, then did not respond to further requests.)
The Supreme Court rejected nullification in 1958, after Southern states tried to use the concept to avoid desegregating public schools. “No state legislator or executive or judicial officer can war against the Constitution without violating his solemn oath to support it,” the Court ruled.
Winkler, the UCLA law professor, said that even though the nullification trend was likely to be ineffectual, “It represents a strong, powerful opposition to our government.”
The concept of nullification has had a resurgence since the beginning of President Obama’s administration. More than a dozen states have introduced bills to nullify Obamacare.
The Tenth Amendment Center, a group that advocates nullification as the solution to a range of policy issues, from marijuana legalization to Obamacare, publishes model gun nullification language. The center has little direct contact with state legislators, Michael Boldin, the center’s founder, said.
The roots of guns law nullification trace back nearly a decade.
In 2004, Montana gun rights activist Gary Marbut drafted a bill stating that any guns manufactured and retained in Montana are not part of interstate commerce, and thus are exempt from federal regulation. The bill failed twice, but it became law in 2009 after Republicans took control of the state House. By Marbut’s count, at least eight states soon enacted “clones” of the Montana law. (Those laws don’t go quite as far as the more recent nullification legislation. For instance, most of them don’t make it a crime to enforce federal law.)
The federal Bureau of Alcohol, Tobacco and Firearms responded to the earlier laws with letters to local firearms dealers explaining that federal laws and regulations “continue to apply.”
The day the Montana law went into effect, Marbut filed a lawsuit in federal court asserting the right to manufacture weapons in the state without a federal license. The suit, now before the Ninth Circuit Court of Appeals, has been backed by a large group of supporters, including Gun Owners of America, the Second Amendment Foundation, the Cato Institute, the Goldwater Institute, and a group of nine attorneys general, some of them from states that had passed their own versions of the Montana law.
Representatives of Goldwater and the Cato Institute said they see the case as not primarily about guns. Instead, they say, it’s meant to persuade the Supreme Court to roll back the Congress’ power to regulate commerce within a state.
“The likelihood of victory is low,” said Trevor Burrus, a research fellow at the Cato Institute’s Center for Constitutional Studies.
The latest set of bills — including Kansas’ new law —represent a far broader and more aggressive challenge to federal law. Even conservative organizations have been skeptical of the trend.
“A state law that criminalizes federal activity — I would oppose that as both imprudent and wrong,” Burrus said. The Cato Institute’s chairman wrote an op-ed recently arguing this kind of nullification is invalid.
Goldwater Institute’s Nick Dranias, a Constitutional expert, said the term “nullification” is sometimes applied to legitimate attempts to exert state sovereignty, “and sometimes it is essentially lawless civil disobedience.”
States should only pass laws challenging federal power “when there is a reasonable legal argument for sustaining them,” he said. And the penalty for enforcing federal law in “hard cases” should be “a misdemeanor at most.”
The Heritage Foundation, a conservative research group, released a “fact sheet” last year titled “Nullification: Unlawful and Unconstitutional.” (The fact sheet does not address guns in particular.)
The Montana activist who helped inspire the nullification movement in Kansas is also a bit skeptical. While he simply chose to challenge the federal government’s commerce power, Kansas is “bucking federal power more generally,” he said.
“I think, maybe tactically, they may have gone a little further than they needed to,” Marbut said.
Though he supports the principles behind the Kansas law, “I don’t know how much of that they can uphold when it gets to the courts.”
But Marbut hopes that the rapid spread of gun law nullification bills across the country will encourage the Supreme Court to hear his case.
“I see the tide moving our way,” Marbut said. “I think the Supreme Court has figured out that the people of America are gathering their torches and pitchforks and it’s time to settle things down by reeling in the federal giant.”
A spokeswoman for Alaska’s Parnell, who has not either approved or vetoed the state’s nullification bill, said last month that “he is supportive of it.” But, she added, “The bill (as with all bills that pass) is currently undergoing a thorough review by the Department of Law.”
In Kansas, Patricia Stoneking, the president of the Kansas State Rifle Association, said she was recommending that Kansans not start manufacturing guns under the new law until its legal status has been clarified.
Even if Kansas’ law ends up being struck down in court, “We actually are not going to roll over and play dead and say, ‘Oh, no, shame on us,’” Stoneking said. “The fight will not be over.”
By: Lois Beckett, ProPublica, May 3, 2013
“Affirmative Action”: An Imperfect But Essential Way To Deal With A Persistently Unfair And Unequal Landscape
In all the well-justified furor over the Supreme Court’s review of voting rights and marriage equality issues, it’s easy to forget that when this term’s opinion roll out, the odds are high that the Court will strike a major blow against affirmative action programs for college admissions.
We are all familiar with the ideological dimensions of the affirmative action issues. But we have an original piece up on the website today, from Elias Vlanton, a distinguished public-school teacher in Maryland, that cuts through the hype and compellingly addresses the human element of affirmative action, and why it is an imperfect but essential way to deal with a persistently unfair and unequal landscape for college admissions. Here’s a sample:
Tramon, Morganne, Arnetta, and Anngie were all students of mine in Advanced Placement classes at Maryland’s Bladensburg High School . Bladensburg is neither a private school, nor a “we skim the cream of the crop” magnet public school. It is in one of Washington, DCs poorest suburbs, where family income ranks in the bottom quarter of the state, and a school where less than ten percent of any graduating class makes it through college.
This semester, while Morganne proudly posts videos of her next dissection and Anngie writes another long essay in French, the Supreme Court, in deciding Fisher v. University of Texas at Austin, will determine whether my students deserve to attend the colleges where they are being so successful. In addition to attending a low-performing high school, my kids are all African American and Latino. They were accepted into their elite colleges as part of those schools’ commitment to the mission of promoting diversity in higher education, the very diversity that affirmative action attempts to encourage—and that Fisher seeks to declare unconstitutional….
My four freshmen—my odds-beaters—had SAT scores hundreds of points below the average of the students admitted to their colleges. They took far fewer AP courses, and participated in fewer extra-curricular activities (since our school offers few activities other than sports). What set them apart was their class rank: they were all in the top two percent of the senior class, a function of their love of learning, their desire to do well, and their hard work to rise to the top. Despite the claim that, on the merits of their applications, they were “unqualified” for admission to the schools where they are getting As and Bs, all will graduate with honors from schools that are among the best in the country—joining my former students who graduated from Bowdoin College, Johns Hopkins University, Georgetown University, and Stanford University .
So Chief Justice Roberts, in the end, we agree: Discrimination is discriminatory. That is why colleges must be allowed to consider the social and economic circumstances of my students when making admissions decisions—as Bryn Mawr, Cornell, Dartmouth, and Middlebury have done. My kids don’t want a leg up; but neither do they deserve a kick in the chest.
Vlanton’s passionate essay is a reminder that while so many agonize over the “injustice” of affirmative action, our country is doing a terrible job (as Kevin Carey documented in his article in the January/February issue of the Washington Monthly) of providing anything like equal opportunity in higher education.
Yes, affirmative action programs are flawed, but not half a flawed as the “color-blind” system that will be left in place if affirmative action is discarded and something more systemic is not put in its place.
By: Ed Kilgore, Contributing Writer, Washington Monthly Political Animal, March 29, 2013
However the Supreme Court rules on the question of gay marriage, Prop 8, and the Defense of Marriage Act (or DOMA, as it’s widely known), the rapid shifts in how the country views same sex marriages is giving the GOP a case of political whiplash, as some leaders try to go with the flow and others scream “stop.”
On the one hand you have Karl Rove envisioning a pro-gay-marriage Republican presidential nominee in three years; on the other, you have former Arkansas governor Mike Huckabee predicting a cataclysmic split in the Republican Party if that happens. If Republicans do flip on gay marriage, Huckabee said last week, “they’re going to lose a large part of their base because evangelicals will take a walk.”
So the immediate question facing conservatives is what outcome they should be quietly rooting for when the Supreme Court hands down its decisions. I think Hot Air’s Allahpundit has it about right:
I’ve read a bunch of pieces lately claiming that SCOTUS striking down gay-marriage laws will actually be a gift to GOP politicians because it’ll take this issue off the table. Rubio and Paul and Jindal et al. won’t have to squirm over whether to endorse SSM, back a federalist approach to the issue, or oppose it on the merits. They can just shrug and say “The Court was wrong but whaddaya gonna do?” and move on to other business. Take it from Huckabee: That won’t happen. Abortion’s technically been “off the table” for 40 years and yet it’s still an absolute litmus test for any potential GOP nominee (and any potential Democratic nominee too).
He goes on to argue that the best case for Republicans is for the court to hold up Prop 8, allowing pols to oppose it but say it should be up to the states. (It’s a rule of politics that in most cases when federal candidates insist a tough issue be left up to the states, they’re trying to avoid pissing off an important constituency.) Note that the “best outcome” is still pretty bad for the GOP: Young voters, who overwhelmingly favor gay marriage, and—oh yeah—voted in greater numbers in 2012 than seniors, will see through a pol trying to play both sides of the issue.
It’s also worth noting here that the Roe parallel works, but only to a point. As Media Matters’s Lara Schwartz wrote yesterday, the notion that the 40-year-old decision polarized the issue is nonsensical. As Yale Law School’s Linda Greenhouse (who used to cover the court for the New York Times) and Reva Siegel relate, “To the question of whether one can avoid conflict over such issues by avoiding courts, the answer from an accurate pre-history of Roe v. Wade is: no. The abortion conflict escalated before the Supreme Court ruled.”
By: Robert Schlesinger, U. S. News and World Report, March 26, 2013