“Decimating Every Legal Justification For Reform”: Can Reformers Save Our Election System From The Supreme Court?
Over the past few years, given the bad news that just keeps coming their way, America’s campaign-finance reformers have started to look like eternal optimists. They’ve pretty much had to be.
Take the one-two wallop they suffered early this spring. First, Governor Andrew Cuomo and New York state legislators killed reformers’ best chance of a breakthrough in 2014—a public-financing program in which small-dollar donations would be matched or multiplied by public funds. (New York City already runs its own “matching” program.) The idea was to give less-wealthy donors a bigger voice in legislative and gubernatorial races while decreasing the clout of those with deep pockets. Instead, reformers ended up with a microscopic pilot program for the state comptroller’s race. A few days later came much worse news: In McCutcheon v. FEC, the Supreme Court threw out the limit that Congress had put on the total amount wealthy donors can give to campaigns and political parties. While there are still caps on how much donors can give to a specific candidate, now anyone can give to as many campaigns as he or she pleases.
As they reeled from their latest setbacks, clean-election advocates tried to find a reason to be hopeful. Ian Vandewalker, counsel for the Democracy Program at the Brennan Center for Justice, which advocated for the New York proposal, told me that in the wake of McCutcheon, “public financing is the most promising thing that’s left.” But McCutcheon illustrated just what makes the Roberts Court so pernicious when it comes to money and elections; slowly but steadily, decision by decision, the justices are decimating every legal justification for reform.
Underpinning the Court’s infamous 2010 Citizens United ruling was the belief that giving less-wealthy donors more of a voice in elections is not a good enough reason for Congress to regulate political money. A year later, in Arizona Free Enterprise Club v. Bennett, the Court struck down a public-financing program that tried to decrease the power of wealthy “self-funded” candidates.
The Arizona law offered grants to those who agreed to spend only $500 of their own money on their campaigns and agreed to debate their opponents. The funding increased as opponents and independent groups spent more; the idea was to prevent less-affluent candidates from being disadvantaged. The Arizona decision threw similar state programs into legal limbo. The Court decided the program was unfair to candidates who chose not to participate; in other words, candidates with more money to spend have a constitutional right to overwhelm their competition.
“Some people might call that chutzpah,” Justice Elena Kagan wrote in her dissent.
Even so, the Arizona decision left room for reformers to argue for a different kind of public financing system in the interest of quelling political corruption. McCutcheon put an end to that. The Court ruled that Congress and the states cannot justify limits on campaign donations because of concerns about corruption. In other words, if there isn’t a guy with a suitcase full of cash trading it for a lawmaker’s vote, it’s none of lawmakers’ concern.
The blow from McCutcheon has dire implications for American democracy. But it should not mark the end of the reform movement. While continuing to pursue reforms that haven’t yet been quashed, activists and legal scholars now must step back and cook up new laws, and new justifications for those laws, that could pass muster with the Court. Harvard law professor Lawrence Lessig has been on a mission to fight originalism with originalism. The conservative justices base their decisions on a reading of the Founding Fathers’ original intent in writing the Constitution, so Lessig has been combing through the records of the framers, citing every use of the term “corruption” and showing how the Founders used the term to mean much more than “quid pro quo” bribery. Lessig writes that “corruption” encompassed “improper dependence” on the powerful as well. Trying to persuade the justices to change their minds may be an uphill struggle, but Lessig’s work may prove useful when new campaign-finance laws are defended in court.
Reformers’ fondest hope now lies with disclosure laws—a form of regulation the Supreme Court majority endorsed in Citizens United. Laws to make tax-exempt “social welfare” groups, which spend billions on elections, disclose their donors are percolating in the states. And in a demonstration of how un-killable the idea of reforming elections can be, some activists have come up with a new twist: If some groups are allowed to keep their donors’ names secret, why shouldn’t their political ads be required to say so? The idea is that when voters hear the words “This advertisement is sponsored by a group that does not disclose its donors,” it would make shadowy political groups look, well, shadowy.
By: Abby Rapoport, The American Prospect, May 21, 2014
“Feigning Outrage”: Outraised By Grimes, McConnell Rethinks Money-As-Speech
Kentucky Secretary of State Alison Lundergan Grimes (D) has once again outraised Senate Minority Leader Mitch McConnell (R) in their 2014 Senate race — and all of a sudden, McConnell no longer seems so enthusiastic about the use of money as free speech.
In the first three months of 2014, Grimes raised $2.7 million, edging McConnell’s $2.4 million haul. McConnell still holds a decisive financial advantage in the race; his campaign has almost $10.4 million in cash on hand, more than double Grimes’ total.
That said, McConnell’s campaign has already spent more than $7 million in the 2014 election, only to see a slight decline in his polling numbers. And it seems that the new fundraising totals have made the Republican leader’s campaign defensive.
“The very same ultra-rich liberal elite who bankrolled Barack Obama into the White House are pulling out all the stops for Alison Lundergan Grimes,” spokeswoman Allison Moore told the Louisville Courier-Journal. “Kentuckians know darn well her entire campaign is funded by those who seek to destroy Kentucky values and our way of life and the only way they can accomplish that is by getting rid of the man responsible for stopping them, Mitch McConnell.”
Moore’s implication — that Grimes is wrong for taking money from wealthy out-of-state donors — is rather ironic, considering that few politicians raise money from the “ultra-rich elite” better than McConnell does. According to the Wall Street Journal, as of December 31, 80 percent of McConnell’s campaign contributions came from donors outside of Kentucky (good for a total of more than $9.3 million). And the top donors to his campaign committee — which include Citigroup, JPMorgan Chase, and Goldman Sachs — don’t exactly scream “Kentucky values.”
McConnell has also benefited from outside groups that have jumped directly into the race; $3.4 million has already been spent in support of the Republican, according to GOP ad-tracking firm SMG Delta.
Although McConnell’s campaign is now feigning outrage that Grimes has raised big sums from “Obama’s liberal Hollywood friends” like Jeffrey Katzenberg, the senator is generally one of the nation’s most outspoken defenders of outside money in politics. In 2012, McConnell led the opposition to the DISCLOSE Act, which would have required political groups to disclose campaign contributions of more than $10,000. At the time, the minority leader argued that full disclosure could be used as a “political weapon,” enabling the government to unleash “harassment and intimidation tactics” against those who donate to opposition candidates.
Today, it appears that McConnell would like to turn the weapon against the “liberal elite” backing Grimes.
By: Henry Decker, The National Memo, April 16, 2014
“Time To Make A Choice”: Huge Wealth Gap Caused Backlash Before And May Again
A majority of the Supreme Court decided last week that the First Amendment protects the right of individuals to pour as much as $3.6 million into a political party or $800,000 into a political campaign.
The court said such spending doesn’t corrupt democracy. That’s utter baloney, as anyone who has the faintest familiarity with contemporary American politics well knows.
The McCutcheon vs. FEC decision would be less troubling were the distribution of income and wealth in America more equal. But over the last few decades it has become extraordinarily concentrated. The richest 400 Americans now possess more wealth than the bottom half of the U.S. population put together.
A few billionaires are now deciding on whom to place their bets for the next presidential election. Before McCutcheon vs. FEC, they had to resort to bulky super PACs and so-called “social welfare” organizations. Now they can dole out their money directly.
McCutcheon vs. FEC coincides with the publication in English of an important book by French economist Thomas Piketty, “Capital in the 21st Century.” Piketty sees the United States and most of the rest of the world returning to the vast inequalities of wealth that were taken for granted as late as the end of the 1800s.
“It is almost inevitable that inherited wealth will dominate wealth amassed from a lifetime’s labor by a wide margin, and the concentration of capital will attain extremely high levels,” Piketty writes. Those levels are potentially incompatible with the meritocratic values and principles fundamental to modern democratic societies.
Piketty shows that for several centuries before World War I, the financial returns to the owners of capital exceeded the rate of growth of modern economies, creating a widening divergence between wealth and incomes. That divergence meant widening inequality between the owners of those assets and the people who worked for a living.
The gap was reversed in the 20th century by two brutal wars and a Great Depression that wiped out the dynastic fortunes of Europe and the accumulated wealth of America’s Gilded Age. But in recent decades, slower growth and higher returns to the owners of capital have allowed the older pattern to reassert itself.
In this sense, McCutcheon vs. FEC marks another step back toward dynastic rule, enabling the owners of vast wealth to compound their holdings through politics.
Nonetheless, I think Piketty’s analysis is way too pessimistic. He disregards the political upheavals and reforms that such wealth concentrations have periodically fueled – such as America’s populist revolts of the 1890s followed by the progressive era before World War I, and the German socialist movement in the 1870s followed by Otto von Bismarck‘s creation of the world’s first welfare state.
Even at this particularly dark hour for democratic capitalism, we see evidence of a resurgent populism and progressivism in the United States. The so-called Tea Party movement is, in a sense, a populist revolt against large corporations, Wall Street and the Republican Party establishment. And the Occupy movement, although apparently short-lived, has found new voice in the recent electoral victories of New York Mayor Bill de Blasio and Massachusetts Sen. Elizabeth Warren.
Democratic capitalism might have within it a balance wheel that Piketty too readily discounts: a public that, once it catches on to what’s happening, refuses to cede control to concentrated economic power.
In turn-of-the-century America, when the lackeys of robber barons literally placed sacks of cash on the desks of pliant legislators, the great jurist Louis Brandeis warned that the nation faced a choice. “We may have democracy, or we may have wealth concentrated in the hands of a few,” he said, “but we can’t have both.”
Soon thereafter, America made the choice. After the turn of the century, public outrage gave birth to the nation’s first campaign finance laws, along with the first progressive income tax. The trusts were broken up and regulations imposed to bar impure food and drugs. Several states enacted America’s first labor protections, including the 40-hour workweek.
In the short term, McCutcheon vs. FEC might make it easier for today’s robber barons to take over American politics. But by inviting them to corrupt our democracy so brazenly, it also might fuel a popular backlash leading to a new era of reform. It has happened before.
By: Robert Reich, Chancellor’s Professor of Public Policy at the University of California at Berkeley; San Francisco Chronicle, April 11, 2014
“It’s Time To Get Creative”: Want To Cut The Rich’s Influence? Take Away Their Money!
Chief Justice John Roberts this week continued his gradual judicial elimination of America’s campaign finance laws, with a decision in McCutcheon v. FEC that eliminates “aggregate” contribution limits from individuals to political parties, PACs and candidates. The decision may not have a catastrophic effect, in a world where individuals were already permitted to donate unlimited sums to independent political organizations, but it is just another move toward the end of regulation of political spending altogether. If Americans want to limit the influence of money on politics, they will have to start getting more creative.
Roberts’ specialty is “faux judicial restraint,” in which he achieves his radical desired goals over the course of many incremental decisions instead of one sweeping one. In this case, as many observers have noted, Roberts pointed to our current easily circumvented caps on political spending as justification for lifting yet another cap, without noting that the Roberts court helped create the current system to begin with. Our campaign finance laws have not quite yet been “eviscerated,” but the trend is clear. Roberts and Justice Clarence Thomas, who penned a partial dissent calling for all regulation of political spending to be eliminated, have something close to the same end goal, but Roberts is willing to be patient in getting there.
As long as Roberts and his fellow conservatives dominate the Supreme Court — and it seems likely that they will continue to dominate it for years to come — campaign finance reformers are going to find themselves sabotaged at every turn. As Rick Hasen says: “It is hard to see what will be left of campaign finance law beyond disclosure in a few years.”
By: Alex Pareene, Salon, April 3, 2014
“Wake Up, People, And See The Danger We’re In”: While Watching With Eyes Glazed, Democracy Is Being Stolen
This is a column about campaign finance reform.
And your eyes glazed over just then, didn’t they?
That’s the problem with this problem. Americans know that government truly of, by and for the people is unlikely if not impossible so long as the system is polluted by billions of dollars in contributions from corporations and individual billionaires. Half of us, according to Gallup, would like to see public financing of campaigns; nearly 80 percent want to limit campaign fundraising.
And yet somehow, the issue seems to lack a visceral urgency in the public mind. William Ostrander understands that all too well.
“There are people that will go nuts over the Second Amendment,” he says in a telephone interview. And not to diminish the importance of self-defense, he adds, but “when you look at the practical character of it, what’s going on in campaign finance corruption is far more injurious to their lives, their well-being and their children’s lives than anything most people have had to deal with with the Second Amendment.”
Ostrander is a farmer in tiny San Luis Obispo, CA, and the director of something called Citizens Congress 2014. Its members include a schoolteacher, a small-business man, a firefighter, a general contractor and a doctor — your basic average Americans — who have collectively invested thousands of volunteer hours to set up a summit (June 2-5) of lawyers, lawmakers, academics, advocacy groups and other experts.
Their aim: to brainstorm strategies and craft a plan of action to eliminate the influence of big money in politics.
Quixotic? Perhaps. But Ostrander says he has commitments from a number of high-profile individuals, including: former labor secretary Robert Reich, Harvard law professor Lawrence Lessig; and Trevor Potter, the former chairman of the Federal Election Commission, who is probably best known for his appearances on The Colbert Report, where he helped Stephen Colbert set up a SuperPAC.
We should wish them success. Because truth is, while many of us watch with eyes glazed, democracy is being stolen right out from under us. Consider that last week, the Supreme Court issued a ruling further loosening the limits on campaign donations. Consider the unseemly way four presumptive presidential aspirants ran to Las Vegas to kiss Sheldon Adelson’s ring when the billionaire casino magnate announced he was looking for candidates to support. Consider what billionaire Tom Perkins said in February: Only taxpayers should have the right to vote and the rich should have more votes.
We’re already moving in that direction. As new Voter ID laws and other restrictive measures cull the electorate of poor people, brown people and young people, as the Supreme Court further tilts the playing field toward the monied and the privileged, the notion of one person, one vote, the idea that we each have an equal say in the doings of our government, comes to feel … quaint if not downright naive.
So the politician, though she came to office determined to do right by her constituents, finds she must pay greater attention to the needs of a large donor than to those of the people she was elected to represent. And you get paradoxes like the one last year, where, although 91 percent of us wanted criminal background checks for all gun sales, somehow that didn’t happen, didn’t even come close.
It’s not the politicians’ fault, says Ostrander. “There are some really great people in Congress, honestly. It’s the system that’s broken. The system needs an intervention.”
And that won’t happen until or unless more Americans wake up from their stupor and recognize this as the clear and present danger it is. Ever feel your government doesn’t represent you?
That’s because it doesn’t.
By: Leonard Pitts, Jr., Columnist, The Miami Herald; Published in The National Memo, April 9, 2014
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