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“Courting Business”: Scalia Worked Hard To Deny Ordinary Citizens Their Day In Court

In Antonin Scalia’s thirty years on the Supreme Court, his name became a byword for social conservatism. And when Senate Majority Leader Mitch McConnell announced that the Senate would refuse to consider any replacement President Obama nominates it was natural that opponents of same-sex marriage and abortion were relieved. Yet Scalia’s death will have only a limited impact on the culture wars, because regarding many social issues he was already in the minority on the Court. But there is one area where the question of his replacement has huge consequences: business. As a member of the Court’s conservative majority, Scalia played a key role in moving American law in a more corporate-friendly direction. Now that majority is gone, and a huge amount rides on what happens next.

Under Chief Justice John Roberts, the Court has not gone as far in limiting government power over the marketplace as many conservatives would have liked. But the Roberts Court has been the most pro-business of any since the Second World War, according to a paper by the law professors Lee Epstein and William Landes and Judge Richard Posner that looked at decisions from 1946 to 2011. Its five sitting conservatives, including Scalia, ranked among the ten most business-friendly Justices of that period. The Roberts Court hasn’t just made a lot of pro-business rulings. It has taken a higher percentage of cases brought by businesses than previous courts, and it has handed down far-reaching decisions that have remade corporate regulation and law. In Citizens United, it famously ruled that corporations had free-speech rights and that many restrictions on corporate spending in elections were therefore unconstitutional. It has overturned long-standing antitrust restrictions. It has limited liability for corporate fraud and made it harder for workers to successfully sue for age and gender discrimination. It has made suing businesses and governments more difficult, especially in class-action suits.

This is no accident. Since the Reagan Administration, Republican Presidents have filled the Court with Justices steeped in the ideology of the conservative legal movement. As Brian Fitzpatrick, a law professor at Vanderbilt who once clerked for Scalia, told me, “Conservative Justices start from a world view that says we have too much litigation in general and it’s a sap on the economy.” Conservative nominees to the Court have been far more worried about government overreach than about corporate misbehavior. They have been skeptical of the use of class-action suits to achieve social goals or enforce regulations. And, once corporations recognized that the Court was predisposed to favor their interests, they began pursuing those interests more aggressively. As the legendary N.Y.U. law professor Arthur R. Miller told me, “The business community smelled blood and went after it.” Most notably, the Chamber of Commerce has become assiduous in pushing corporate cases to the Court.

A few of these cases have received a lot of attention, but the most consequential work of the Roberts Court in protecting corporate rights has been in cases that have gone mostly unnoticed, including a pair (A.T. & T. v. Concepcion and American Express v. Italian Colors) in which Scalia wrote the majority opinion. In these cases, both of which turned on an interpretation of a once obscure 1925 law, the Court ruled that companies could require customers to give up their right to sue in open court, with disputes to be settled by a private arbitrator instead. “These cases don’t get people’s attention the way things like abortion and same-sex marriage do,” Miller said. But, if the decisions stand, Fitzpatrick argues, “they have the potential to literally wipe out the class-action lawsuit.”

That might not sound like a bad thing—we’re always hearing that Americans are too litigious—but, in an era when regulators are routinely falling down on the job, lawsuits play a crucial role in deterring corporate misbehavior. Miller calls them a “private enforcement of public policies.” And when it comes to big corporations class-action suits are often the only kind that make any economic sense. If every individual defrauded by a company loses fifty dollars, the collective harm can be immense, but it’s not worthwhile for any single victim or lawyer to bother. Fitzpatrick says that obstacles to filing class-action lawsuits make it more likely that “companies will not be held accountable for hurting people, for cheating people, for defrauding people, for discriminating against people.” In that sense, the battle over access to the courtroom is, as Miller puts it, “a kind of class conflict between ordinary individuals and corporate power.” And in that conflict there’s no question which side Scalia was on.

Of course, there’s no guarantee that his death will change things. But many of the Roberts Court’s most important business cases were decided by a 5–4 margin, with the five conservative Justices voting as a bloc. And, as Fitzpatrick points out, “Scalia has done more than any other justice in making it difficult for consumers and employees to bring class-action suits. So his absence alone may make a difference.” There have already been signs of this: just last week, Dow Chemical settled a major class-action suit, saying that Scalia’s death increased the chances of “unfavorable outcomes for business.” It’s unlikely that Scalia will be replaced anytime soon. But let’s hope that, when a successor is finally appointed, it is someone willing to give ordinary citizens the day in court that Scalia worked so hard to deny them.

 

By: James Surowiecki, Financial Page, The New Yorker, March 7, 2016 Issue; Posted March 1, 2016

March 1, 2016 Posted by | Antonin Scalia, Businesses, Citizens United, Corporations | , , , , , , , | Leave a comment

“A Stinking Open Sewer”: Unhappy Anniversary: How Anthony Kennedy Flooded Democracy With ‘Sewer Money’

On today’s anniversary of the Citizens United decision, which exposed American democracy to increasing domination by the country’s very richest and most reactionary figures – the modern heirs to those “malefactors of great wealth” condemned by the great Republican Theodore Roosevelt – it is worth recalling the false promise made by the justice who wrote the majority opinion in that case.

Justice Anthony Kennedy masterminded the Supreme Court’s January 21, 2010 decision to undo a century of public-interest regulation of campaign expenditures in the name of “free speech.” He had every reason to know how damaging to democratic values and public integrity that decision would prove to be.

Once billed as a “moderate conservative,” Kennedy is a libertarian former corporate lobbyist from Sacramento, who toiled in his father’s scandal-ridden lobbying law firm, “influencing” California legislators, before he ascended to the bench with the help of his friend Ronald Reagan.

While guiding Citizens United through the court on behalf of the Republican Party’s billionaire overseers, it was Kennedy who came up with a decorative fig leaf of justification:

With the advent of the Internet, prompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions. This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.

 As Jane Mayer’s superb new book Dark Money: The Hidden History of the Billionaires Behind the Rise of the Radical Right reveals in excruciating but fascinating detail, Kennedy’s assertion about the Internet insuring disclosure and accountability was nothing but a little heap of happy horse-shit. “Independent” expenditures from super-rich right-wing donors have overwhelmed the opponents of their chosen candidates, promoting a durable Republican takeover of Congress — often through the deployment of false advertising and false-flag organizations.

Late last year, Kennedy confessed that his vaunted “transparency” is “not working the way it should,” a feeble excuse since he had every reason to know from the beginning that his professed expectation of “prompt disclosure” of all political donations was absurdly unrealistic.

The Citizens United debacle led directly to the Republican takeover of the Senate as well as the House. Last week, the Brennan Center for Justice released a new study showing that “dark money” – that is, donations whose origin remains secret from news organizations and voters – has more than doubled in Senate races during the past six years, from $105 million to $226 million in 2014.

During the past three election cycles, outside groups spent about $1 billion total on Senate races, of which $485 million came from undisclosed sources. In the 11 most competitive Senate races in 2014, almost 60 percent of the spending by “independent” groups came from those murky places, and the winners of those races benefited from $171 million of such spending.

In elections gone by, when anonymous smear leaflets would appear in local races — funded by nobody knew whom — political operatives would shake their heads and mutter about “sewer money.”

Today we can thank Anthony Kennedy, who was either poorly informed or willfully ignorant, for turning American democracy into a stinking open sewer.

What a legacy.

 

By: Joe Conason, Editor in Chief, Editor’s Blog, The National Memo, January 21, 2016

January 21, 2016 Posted by | Anthony Kennedy, Citizens United, Democracy | , , , , , , , , , | Leave a comment

“The Bane Of Many Politicians’ Existence”: Senate GOP Solution To Super PAC Rivals; More Money In Politics

This may sound odd, but it rings true amongst Republicans and Democrats alike: The only people who loathe Super PACs more than voters forced to sit through an onslaught of their bullshit ads, are politicians themselves.

Don’t get me wrong, at first many Republicans loved the new, post-Citizen United world of PACs (a.k.a. Political Action Committees who act any way they want). But those powerful outside groups have become the bane of many politicians’ existence—even GOP lawmakers who oppose overturning the Supreme Court ruling.

“We’re at a point where the outside groups have so much more flexibility than the parties do that there’s nothing wrong with giving both political parties a little more flexibility in how they work with candidates,” said Roy Blunt (R-MO), a member of the GOP leadership team in the Senate.

As Congress scrambles to avoid a year end government shutdown, Senate Majority Leader Mitch McConnell is quietly trying to include a provision to dismantle any limitations remaining on what the parties in Washington can spend coordinating with their candidates. Both parties bemoan that their candidates have lost control of their own campaigns.

Currently GOP and Democratic leaders can only spend about $50,000 to assist House candidates and around $3 million working with Senate campaigns. But for Super PACs the sky is the limit on what they can raise and spend, thus neutering the parties and politicians alike.

“You notice that the political parties are now being shunted aside, because he who pays the pipers calls the tune,” said Sen. Bill Nelson (D-Fla.) who doesn’t think McConnell’s latest attempt is all that significant. “It’s the outside money, particularly in the Republican sphere, that is funding elections. And it’s all this undisclosed, unlimited money uncontrolled by the campaign finance law. So until we can stop the outside money you can tinker here and tinker there, and it doesn’t make any difference.”

PACs have complicated everything for today’s political class. Yes, candidates are still the central component of any campaign, but all the campaign cash has eclipsed many candidates’ messages in recent elections. That’s because it’s easier for PACs to rake in millions than it is for candidates and their party to take in similar rolls of dollar bills. Candidates and parties also have to play by different rules.

“The candidates we have to disclose everything and I have to put my name on it,” Sen. Kelly Ayotte (R-NH) told The Daily Beast. She’s facing a bruising reelection battle and thinks the Citizens United ruling has unleashed a double standard.

“The parties also, they have to say ‘from the party’ and be able to do that, but you know there are a lot of outside groups, they have different names and it’s tough to know where they’re coming from.”

While candidates want to exert more control over their own campaigns, so do party leaders. In recent years Tea Party challengers have embarrassed themselves and the Republican Party in Senate races from Delaware to Nevada. That made the GOP establishment bristle, and seems to be behind McConnell’s latest move to strengthen the parties.

“McConnell is a party man,” said Kyle Kondik, a campaign analyst at the University of Virginia’s Center for Politics. “He probably believes that if the parties are stronger they can exert more control over who gets the nomination. You make the party stronger the individual candidates get weaker.”

That’s why the Tea Party wing of the GOP is opposed to McConnell’s latest move.

Rep. Jim Jordan (R-Ohio), the head of the House Freedom Caucus, said the changes on coordination should also be extended to Super PACs who currently are forbidden from coordinating with campaigns.

“What’s good for the goose should be good for the gander,” Jordan told The Daily Beast. “So if it’s good for the parties, it should be good for outside groups who are involved in politics and have a big influence on politics as well. I mean free speech is free speech. So either don’t do it at all, or if you’re going to do it, do it in an equal fashion.”

This isn’t the first time McConnell has stealthily tried to unwind election law. As the legislative clock wound down at the end of last year, he worked with then Speaker John Boehner to lift the cap on what party committees could solicit from donors. The provision hiked the rate from just under $100,000 to nearly $800,000. It was barely noticed, but critics argue the new provision will be felt.

“It will basically turn the parties into another apparatus that’s owned by the big money crowd,” said Rep. John Sarbanes (D-Md.), an advocate for public financing of campaigns. “In a sense it would allow big donors to become benefactors of specific candidates, using the parties to do it. They would kind of go through the parties to become the sugar daddy of this candidate or that candidate. So the parties lose all independence; they just become the tool of the big money crowd.”

Then there’s the whole presidential scramble going on. South Carolina Sen. Lindsey Graham has proven to be a lackluster fundraiser in his #YOLOrace for the White House, but that doesn’t mean he hasn’t been carefully watching his opponents and their Super PACs. He predicts something will give when the new Congress convenes at the start of 2017.

“I think there is going to be a scandal about money coming in the 2016 cycle from unsavory sources,” Graham to The Daily Beast. “That’s what it’s going to take to spur discussion. So I don’t really care about moving the caps as long as it’s transparent.”

 

By; Matt Laslo, The Daily Beast, December 14, 2015

December 15, 2015 Posted by | Campaign Financing, Citizens United, Mitch Mc Connell, Super PAC's | , , , , , , , | Leave a comment

“Citizens United And New Media Are On A Collision Course”: New Technology Has Potential To Deal A Blow To Big Money In Politics

New media is challenging the basic business model of advertisements as a way to pay for television programming. First came remote controls and options like Tivo, which allowed viewers to skip ads. Now, in the age of digital streaming, the number of households that are “cord cutters” (no cable or satellite television service) has increased 60% in the last 5 years.

This evolution comes just as the Supreme Court’s decision on Citizens United allowed for unlimited contributions to campaign super pacs – whose main role has been to pay for expensive television advertising. The conflation of those two developments might help explain why Jeb Bush’s super pac has spent over $15 million on television ads (far more than any other campaign), and yet their candidate has dropped to fifth place in the polls, leading long-time Bush family friend John Sununu to say, “I have no feeling for the electorate anymore. It’s not responding the way it used to.”

We essentially saw the same thing in the 2012 election when Karl Rove’s super pacs had a 1% return on their investment in television ads, while a video recorded by a waiter at a Romney event was likely a game-changer. At some point super pacs are going to have to ask themselves what they should be spending all those millions of dollars on if television advertising doesn’t move the needle on poll numbers, while free media becomes a determining factor.

It’s also interesting to note that a candidate like Donald Trump has spent very little money so far and recently swore off having any super pacs. The reason he’s been able to do that is because he gets a tremendous amount of free media for saying outrageous things. That poses it’s own kind of danger as long as the press prioritizes the sensational over the substantive. But in the end, it is not significantly different from all the free media the Obama campaign got with the video of Romney’s “47%” remarks in 2012.

The one Republican candidate whose super pacs are experimenting more aggressively with the use of new media is Ted Cruz. Kellyanne Conway, who runs one of the Cruz super pacs, recently said that their goal was to be “more surgical, spending on digital, cable, direct mail, radio, in addition to TV.”

Brian Fisher, who runs an organization called “Online for Life” (which has developed apps and social media to connect with women seeking to end a pregnancy), has formed a company called Red Metrics LLC that will serve as the data and digital operation for Cruz’s four Keep the Promise super pacs. One of the visible results of that collaboration is the Facebook page: Reigniting the Promise, which already has over 380,000 followers.

To date, the Cruz super pacs have spent almost nothing on television ads, and yet their candidate is inching up in the polls and his campaign has raised more “hard money” than anyone in the Republican field except Ben Carson. Whether or not Cruz has a chance at actually being the nominee remains to be seen. But when you compare the results of super pac spending on new media vs paid television advertising, it is obvious that there is a new game in town.

It is always important to remember that the role of money in politics is to influence voters. As long as super pacs continue to spend their money on something that doesn’t have much impact on them (estimates are that they’ll spend $4.4 billion on TV ads this election cycle), the concern about the wealthy being able to control our elections is muted.

On the other hand, just as new media is having an impact on the music, entertainment and publishing industries, it is also affecting political campaigns. As we’ve seen with those other industries, new media is inherently more democratic and less expensive. That puts it on a bit of a collision course with the big money that is flooding into super pacs.

New media is clearly here to stay. While mega-donors and their super pacs will catch on to that fact some day and make adjustments, it is time to begin asking ourselves whether or not this new technology has the potential to deal a definitive blow to the role of big money in politics.

 

By: Nancy LeTourneau, Political Animal Blog, The Washington Monthly, December 1, 2015

December 2, 2015 Posted by | Campaign Advertising, Citizens United, New Media | , , , , , , , , | 1 Comment

“How Much ‘Free Speech’ Can You Buy?”: Citizens United Produced A Platinum Class Of Mega-Donors And Corporate Super PACs

In today’s so-called “democratic” election process, Big Money doesn’t talk, it roars — usually drowning out the people’s voice.

Bizarrely, the Supreme Court decreed in its 2010 Citizens United ruling that money is a form of “free speech.” Thus, declared the learned justices, people and corporations are henceforth allowed to spend unlimited sums of their money to “speak” in election campaigns. But wait — if political speech is measured by money then by definition speech is not free. It can be bought, thereby giving the most speech to the few with the most money. That’s plutocracy, not democracy.

Sure enough, in the first six months of this presidential election cycle, more than half of the record-setting $300 million given to the various candidates came from only 358 mega-rich families and the corporations they control. The top 158 of them totaled $176 million in political spending, meaning that, on average, each one of them bought more than a million dollars’ worth of “free” speech.

Nearly all of their money is backing Republican presidential hopefuls who promise: (1) to cut taxes on the rich; (2) cut regulations that protect us from corporate pollution and other abuses of the common good; and (3) to cut Social Security, food stamps and other safety-net programs that we un-rich people need. The great majority of Americans adamantly oppose all of those cuts — but none of us has a million bucks to buy an equivalent amount of political “free” speech.

It’s not just cuts to taxes, regulations and some good public programs that are endangered by the Court’s ridiculous ruling, but democracy itself. That’s why a new poll by Bloomberg Politics found that 78 percent of the American people — including 80 percent of Republicans — want to overturn Citizens United. But those 358 families, corporations and Big Money politicos will have none of it. In fact, America’s inane, Big Money politics have become so prevalent in this election cycle that — believe it or not — candidates have found a need for yet another campaign consultant.

Already, candidates are walled off from people, reality and any honesty about themselves by a battalion of highly specialized consultants controlling everything from stances to hairstyle. But now comes a whole new category of staff to add to the menagerie: “donor maintenance manager.”

The Supreme Court’s malevolent Citizens United decision has produced an insidious platinum class of mega-donors and corporate super PACs, each pumping $500,000, $5 million, $50 million — or even more — into campaigns. These elites are not silent donors, but boisterous, very special interests who are playing in the new, Court-created political money game for their own gain. Having paid to play, they feel entitled to tell candidates what to say and do, what to support and oppose. A Jeb Bush insider confirms that mega-donors have this attitude: “Donors consider a contribution like, ‘Well, wait, I just invested in you. Now I need to have my say; you need to answer to me.’”

Thus, campaigns are assigning donor maintenance managers to be personal concierges to meet every need and whim of these special ones. This subservience institutionalizes the plutocratic corruption of our democratic elections, allowing a handful of super-rich interests to buy positions of overbearing influence directly inside campaigns.

Donors at the million-dollar-and-up level are expecting much more than a tote bag for their “generous gifts” of “free speech.” Of course, candidates piously proclaim, “I’m not for sale.” But politicians are just the delivery service. The actual products being bought through the Supreme Court’s Money-O-Rama political bazaar are our government’s policies, tax breaks and other goodies — as well as the integrity of America’s democratic process. To help fight the injustice of the Supreme Court’s Citizens United ruling and get Big Money out of our political system, go to www.FreeSpeechForPeople.org.

 

By: Jim Hightower, The National Memo, October 28, 2015

October 29, 2015 Posted by | Citizens United, Corporations, Democracy | , , , , , , , , | 1 Comment

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