“Outsiders Coordinating With The Insiders”: ‘Citizens United’ Is Turning More Americans Into Bystanders
Are we spending our democracy into oblivion?
This is the time of year when media scribblers bemoan how nasty political campaigns have become. The complainers are accused of a dainty form of historical ignorance by defenders of mud-slinging who drag out Finley Peter Dunne’s 1895 assertion that “politics ain’t beanbag.” Politics has always been nasty, the argument goes, so we should get over it.
In fact, structural changes in our politics are making campaigns more mean and personal than ever. Even Dunne might be surprised. Outside groups empowered by the Supreme Court’s Citizens United decision are using mass media in ways that turn off Americans to democracy, aggravate divisions between the political parties and heighten animosities among citizens of differing views.
Studies of this year’s political advertising show that outside groups are blanketing the airwaves with messages far more negative than those purveyed by the candidates themselves. That shouldn’t surprise us in the least. “Candidates can be held accountable for their ads,” says Robert Weissman, president of Public Citizen, a consumer organization that is trying to encourage candidates to disown “dark money.” “The outside groups are unknown, and have confusing names.”
No one is advertising under the moniker “Influence Peddlers for Crummy Politics.”
There is far too much complacency about big money’s role in this year’s campaigns, on the grounds that both sides have plenty of it. This misses the point. “It doesn’t balance it out if you have billionaire Republicans battling billionaire Democrats,” says Weissman. “You still have billionaires setting the agenda for the election.”
Moreover, a focus just on this year’s competitive Senate and House races misses the enormous impact a handful of very wealthy people can have on state and local campaigns. A new report by the Brennan Center for Justice details how, at a relatively modest cost to themselves, a privileged few can change how government that is supposed to be nearest to the people is actually carried out.
“At this scale, you don’t have to be a Koch brother to be a kingmaker,” the report informs us. Worse, the supposedly “independent” spending of the super-rich kingmakers isn’t independent at all. The report documents how closely the activities of supposedly outside groups are coordinated with insiders and the candidates themselves.
Like everything else in our politics these days, Citizens United is usually debated along ideological lines. Progressives typically hate it. Conservatives usually defend it. But citizens of every persuasion should be worried about what this precedent-shattering decision has unleashed. More than ever, politics is the only profession that regularly advertises against itself. If voters feel cynical, the outside groups — on both sides — are doing all they can to encourage their disenchantment.
A study by the Wesleyan Media Project of ads aired between Aug. 29 and Sept. 11 found that 55 percent of ads in U.S. Senate elections were negative, up from 43.7 percent over the same period in 2010. Wesleyan found that 91.4 percent of the ads run by outside groups in support of Democrats were negative, compared with 41.9 percent of those run by Democratic candidates themselves. For Republicans, 77.9 percent of the group ads were negative, compared with only 12.3 percent of the candidate ads. Negative ads were down slightly in the next two-week period, but there were still more negative commercials run this year than in the comparable period in 2010.
Defenders of massive spending on advertising, positive or negative, will make the case that at least the ads engage voters. Not necessarily, and certainly not this year. Indeed, the Pew Research Center found in early October that only 15 percent of Americans are following the elections “very closely.” Interest in the campaign, says Scott Keeter, director of survey research at Pew, “is the lowest it has been at this point in an off-year election in at least two decades.”
Hardly a day goes by without someone lamenting how polarized our politics has become. Can anyone seriously contend that the current way of running and financing elections is disconnected from the difficulty politicians have in working together? “How are they supposed to get along with the other side the day after the election?” Weissman asks. Writing recently in Foreign Affairs, the sometimes dissident conservative writer David Frum argues that “the radicalization of the party’s donor base has led Republicans in Congress to try tactics they would never have dared use before.”
Thus the tragic irony: Citizens United is deepening our divisions and turning more citizens into bystanders. Our republic can do better.
By: E. J. Dionne, Jr., Opinion Writer, The Washington Post, October 12, 2014
“A Defeat For American Democracy”: The Senate Tried To Overturn ‘Citizens United’ Today. Guess What Stopped Them?
A majority of the United States Senate has voted to advance a constitutional amendment to restore the ability of Congress and the states to establish campaign fundraising and spending rules with an eye toward preventing billionaires and corporations from buying elections.
“Today was a historic day for campaign finance reform, with more than half of the Senate voting on a constitutional amendment to make it clear that the American people have the right to regulate campaign finance,” declared Senator Tom Udall, the New Mexico Democrat who in June proposed his amendment to address some of the worst results of the Supreme Court’s interventions in with the recent Citizens United v. Federal Election Commission and McCutcheon v. Federal Election Commission decisions, as well as the 1976 decision in Buckley v. Valeo.
That’s the good news.
The bad news is that it’s going to take more than a majority to renew democracy.
Fifty-four senators, all Democrats and independents who caucus with the Democrats, voted Thursday for the amendment to clarify in the Constitution that Congress and the states have the authority to do what they did for a century before activist judges began intervening on behalf of wealthy donors and corporations: enact meaningful campaign finance rules and regulations.
But forty-two senators, all Republicans, voted no. As a result, Udall noted, the Republican minority was able to “filibuster this measure and instead choose to support a broken system that prioritizes corporations and billionaires over regular voters.”
The Republican opposition effectively blocked further consideration of the amendment proposal, since sixty votes were needed to end debate and force a vote. And, even if the Republicans had not filibustered the initiative, actual passage of an amendment would have required a two-thirds vote.
Though the Republican move was anticipated, Senator Bernie Sanders, the Vermont independent who has been one of the Senate’s most ardent advocates for reform, expressed frustration with the result. “I am extremely disappointed that not one Republican voted today to stop billionaires from buying elections and undermining American democracy,” said the senator, who has advocated for a more sweeping amendment to address the influence and power of corporate cash on American elections and governance. “While the Senate vote was a victory for Republicans, it was a defeat for American democracy. The Koch brothers and other billionaires should not be allowed to spend hundreds of millions of dollars electing candidates who represent the wealthy and the powerful.“
Now, said Sanders, “the fight to overturn Citizens United must continue at the grassroots level in every state in this country.”
Sanders is right to reference the role of grassroots movements.
Four years ago, when the US Supreme Court removed barriers to corporate spending to buy elections, serious reformers said a constitutional amendment would be necessary to reverse the Court’s Citizens United ruling. Most pundits and politicians, even those who recognized the threat posed to democracy by the opening of the floodgates for big money, dismissed a constitutional fix as too bold and too difficult to achieve.
But the people embraced the constitutional route to reform. Grassroots organizing succeeded in getting sixteen states and close to 600 communities to formally demand that Congress act.
At the same time, the money poured in, with campaigning spending breaking records in the 2012 presidential and congressional elections—and heading toward breaking the record for midterm elections in 2014.
That was enough to shake up even the most cautious Senate Democrats, who began moving earlier this year to advance the Udall amendment. Though activists wanted a stronger amendment, the Senate deliberations confirmed that there is broad support for a constitutional response to the money-in-politics mess—and that a substantial number of senators now see that constitutional response as right and necessary.
“Less than five years after the Citizens United decision sparked national outrage, we have seen the movement to get big money out of politics go from local, grassroots organizing to a vote in the United States Senate,” explained People for the American Way Executive Vice President Marge Baker, who worked with activists from Public Citizen, Common Cause, Free Speech for People and other groups to collect and deliver 3.2 million signatures on petitions supporting an amendment. “Today’s historic majority vote is a remarkable milestone for this movement and a platform for taking the fight to the next level. The debate in the Senate this week is a debate that Americans across the country who are passionate about fixing our broken democracy have wanted to see.”
With the DC debate done, for now, the fight goes back to the grassroots. Activists with groups such as Move to Amend, Public Citizen’s “Democracy is for People” campaign and Free Speech for People will continue to organize and agitate, not just for an amendment but for an amendment that makes it absolutely clear that money is not speech, that corporations are not people and that citizens have a right to organize elections where votes matter more than dollars.
“We have amended the US Constitution before in our nation’s history. Twenty-seven times before. Seven of those times to overturn egregious Supreme Court rulings. For the promise of American democracy, we can and we will do it again,” declared John Bonifaz, the president of Free Speech for People, said Thursday. “The pressing question before the nation today is whether it is ‘we the people’ or ‘we the corporations and big money interests.’ This is not a Democratic issue or a Republican issue. This is a deeply American issue. Whatever our political differences may be, we all share the common vision of government of, for, and by the people. Today’s US Senate vote is just the beginning. While this amendment bill did not receive this time the required two-thirds support in order to pass the Senate, we will be back again and again until we win. History is on our side.’
By: John Nichols, The Nation, September 12, 2014
“Sunlight Is The Best Disinfectant”: In 2014, You Can Still Buy A Senate Seat
Leaving aside for the moment the debate over whether or not individuals, corporations or nonprofits should be able to give an unlimited amount of money to a political candidates, shouldn’t we at least know who they are and when they do it?
Our federal representatives are so controlled by the money they receive that they have not been able to pass legislation requiring simple disclosure of contributions from outside groups.
So, as is the case with many other issues these days, the states are stepping in when the federal government demonstrates no capability to lead. Which is pretty much all the time, on every issue.
Last week, Massachusetts Governor Deval Patrick signed a reasonable disclosure law requiring all groups making independent expenditures—that is, money for campaign ads and the like—to disclose their donors within seven days, or within 24 hours if it is 10 days or less before an election. Additionally, the top five donors of more than $5,000 must be listed in advertisements.
Let’s take a look at the kind of problem the lack of any federal action encourages.
Recently, a candidate for the U.S. Senate in Georgia, David Perdue, came from behind and won a tightly contested runoff against a former congressman, Jack Kingston. And it turns out he did so with the help of more than $2 million in advertising attacking his opponent that came from a couple of political organizations based in Ohio, one of which was formed in 2011 with the express purpose of “promoting a stronger economic climate in Ohio.”
Would it surprise you to learn there is a loophole in federal disclosure requirements? Technically, a political action committee is supposed to disclose its donors. But tax-exempt “social welfare” nonprofits do not. And, guess what? Nearly all the money that was dumped into the PACs that funded the George Senate race came from two nonprofits.
So we now have a candidate for the U.S. Senate in Georgia whose margin of victory was absolutely supplied by, um, we have no idea.
For all we know, Perdue may be a terrific guy and a potentially great U.S. senator. But it sure doesn’t instill faith in our system, or encourage voters to participate, when unknown special interests from outside a state can swoop in and affect the outcome of an election.
And believe me, this is not just happening in Georgia. It’s happening in most high-profile political races, with the rare exception of those where the candidates have engaged in agreements to ban outside funding, or are considering pledges to disclose all “dark money” funding.
So, as the Georgia race just proved, you really can buy a U.S. Senate seat. And, while buying a Senate seat may be constitutionally protected thanks to the Citizens United decision, there are no similar protections for doing so anonymously.
So thank you, Massachusetts, for invoking in action the words of the former Supreme Court Justice Luis D. Brandeis: “Sunlight is the best disinfectant.”
By: Mort McKinnon, The Daily Beast, August 11, 2014
“A Revival Of 20th Century Lochner”: The Roberts Court Thinks Corporations Have More Rights Than You Do
The Supreme Court of the mid-twentieth century led a First Amendment revolution, turning a rarely enforced constitutional provision into the crown jewel of our Bill of Rights. While these rulings protected the speech of all Americans, they most frequently came in cases involving disfavored or even despised litigants, from Jehovah’s Witnesses to Nazi sympathizers. The Roberts Court is leading a free speech revolution of its own, but this time for the benefit of corporations and the wealthy.
This revolution is unfolding across a wide range of First Amendment provisions and doctrines, from Citizens United v. FEC, which protects political speech by corporations to Sorrell v. IMS, which makes it easier for corporations to challenge laws that regulate commercial speech. Today’s bitterly divided rulings in Burwell v. Hobby Lobby and Harris v. Quinn continue this trend by turning the First Amendment’s protection for the free exercise of religion and freedom of association into a sword to free corporations and other powerful interests from government regulation. More than the Court’s earlier First Amendment revolution, this series of deeply divided rulings resembles the aggressive, divisive, and now overturned rulings of the Lochner era, named after the infamous 1905 case Lochner v. New York, one of a number of cases in which the Supreme Court of the early twentieth century that struck down laws designed to prevent the exploitation of workers. During this era, the Supreme Court repeatedly expanded the constitutional rights of corporations and other businesses while dismissively treating the government’s interest in economic regulation. Today, we are seeing a revival of Lochner in the name of protecting free speech and free exercise of religion.
This story, of course, begins in earnest with the 2010 ruling in Citizens United v. FEC, the case that, perhaps more than any other, defines the Roberts Court. There the Court’s five conservatives united to hold that the Constitution gives corporations the right to spend unlimited sums of money on elections. Corporations cannot vote in elections, run for office, or serve as elected officials, but the Court nevertheless ruled that they can overwhelm the political process by using money generated by special privileges that corporations alone possess. In 2011, the Court continued this corporate-friendly trend in Sorrell v. IMS, holding that forms of market research, such as data mining, are “speech” protected by the First Amendment.
This term, Chief Justice Roberts has opened new fronts in his First Amendment revolution. Prior to 2014, the Supreme Court had never held that a secular, for-profit corporation is entitled to protections for the free exercise of religion and had never struck down a federal law limiting campaign contributions. This year, the conservative Justices did both. In both cases, the Court’s conservative majority built off of Citizens United. In Hobby Lobby, in an opinion written by Justice Samuel Alito, the Court held that closely-held, secular, for-profit corporations were entitled to the guarantee of the free exercise of religion, treating corporations simply as the artificial embodiment of its owner or shareholders. Dismissing the fact that corporations cannot pray and have never, in more than two centuries, been conferred with rights of conscience and human dignity, the Court’s conservative bloc concluded that secular for-profit corporations are entitled to a religious exemption from the Affordable Care Act’s requirement that employer-sponsored health insurance plans cover the full range of FDA-approved contraceptives. The Court’s opinion—the first in history to require a religious exemption from generally-applicable regulation be given to a commercial enterprise—exalts the rights of corporations over those of individuals, giving corporations the right to impose their owners’ religious beliefs and extinguish the rights of their employees. As Justice Ruth Bader Ginsburg detailed in a powerful dissenting opinion, the majority abandoned constitutional principles and precedent and empowered commercial enterprises to “deny legions of women who do not hold their employees’ beliefs access to contraceptive coverage.”
While framed as a narrow minimalist ruling, Justice Alito’s opinion in Hobby Lobby is anything but. First, its central holding strongly suggests that all corporations—not merely those like Hobby Lobby that are closely-held—are entitled to demand religious exemptions from generally-applicable business regulation. Second, its reasoning invites an avalanche of new claims by corporations and others for religious exemptions, making it very difficult for the government to defeat claims for religious exemptions, even when those exemptions extinguish the rights of employees. The Court’s opinion, as Justice Ginsburg explained, opens the floodgates for a number of “me too” religious objections by other companies on matters ranging from anti-discrimination law to other medical procedures such as blood transfusions or vaccinations.
Earlier this term, in McCutcheon v. FEC, the Court’s conservatives continued their assault on the nation’s campaign finance laws, striking down the federal aggregate limit that permitted individuals to contribute up to $123,000 to candidates per election cycle and opening the floodgates to the wealthiest Americans to contribute millions of dollars at a time to elect candidates to do their bidding. As in Citizens United, the conservative majority turned a blind eye both to constitutional principle and reality, treating the $123,000 contribution limit as an especially severe burden on freedom of speech and artificially limiting the government interest in ensuring electoral integrity to cases of bribery. To the Founders, preventing corruption of the government was at the core of the Constitution, necessary to ensure, as Madison put it, that government was “dependent on the people alone” and that our system of representative democracy remained “not [for] the rich more than the poor.” Rather than grappling with the government’s authority to ensure electoral integrity—an interest deeply rooted in the Constitution’s text and history—Chief Justice Roberts caricatured it. While campaign contribution limits still remain, it seems only a matter of time before those too are invalidated by the Roberts’ conservative majority.
Harris, too, represented a fundamental reinterpretation of the First Amendment, striking down an Illinois law that allowed public-sector unions for home health care workers to collect fees from non-union workers to cover the costs of a union’s bargaining activities. In doing so, Justice Alito dismissed a long line of precedents going back nearly 40 years that had upheld precisely these kinds of arrangements, dealing a serious blow to organized labor. In past cases, the Roberts Court has upheld government regulation of employee speech, giving the government broad leeway in choosing how to run a workplace. But, in a stark about face, Justice Samuel Alito’s opinion ratcheted up the First Amendment rights of anti-union employees, powerfully illustrating Adam Liptak’s observation that in the Roberts Court, “[f]ree speech often means speech I agree with.” In a blistering dissent, Justice Elena Kagan argued that the Court’s conservative majority was perverting established First Amendment law, effectively creating a special set of First Amendment principles only for union fee cases.
Justice Alito’s opinion in Harris invites anti-union activists to file a host of new lawsuits aimed at state laws that allow public-sector unions to collect the costs of collective bargaining from union and non-union member alike. Indeed, much of the Harris opinion is devoted to showing why the past precedent in this area is wrong and ought to be overruled. These precedents survive, if at all, by a thread.
Chief Justice John Roberts is known for playing the long game, issuing decisions that, quietly but decisively, move the law to the right. His greatest successes in this area have come in campaign finance cases, where in just a decade, the Court’s opinions have decimated campaign finance law. Today’s decisions in Hobby Lobby and Harris open new avenues for corporate interests looking to attack regulation, and in years to come we are certain to see a host of new challenges to business regulation, all in the name of free speech or free exercise. In the Roberts Court, the First Amendment is a powerful weapon, not for the street corner speaker, but for corporations and wealthy seeking to squelch regulation.
By: David H. Gans, Director of the Human Rights, Civil Rights, and Citizenship Program at Constitutional Accountability Center; The New Republic, July 1, 2014
“Show Your Invisible Hand”: The SEC Should Make Corporations Disclose Political Contributions
A core assumption of the Supreme Court’s opinion in 2010’s troubling Citizens United case, which broadened corporations’ abilities to use their money for political purposes, was that shareholders could decide for themselves whether they agreed with the ways that money was being spent.
According to Justice Anthony Kennedy, who delivered the opinion for the Court, “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 and supporters. Shareholders can determine whether their corporation’s political speech advances the corporation’s interest in making profits, and citizens can see whether elected officials are ‘in the pocket’ of so-called moneyed interests.”
The problem with this particular assumption, which economists call perfect information, is that corporations are — surprise surprise — not legally obligated to share information on political spending with their shareholders or the public. In August 2011, a group of high-profile law professors filed a petition with the Securities and Exchange Commission, calling on the agency to require public companies to disclose what corporate resources they spend on political activities because “most political spending remains opaque to investors in most publicly traded companies.”
Why do companies spend money on politics? The answer seems obvious: they want to generate profits. They are seeking advantages like reduced trade barriers, government contracts, easier regulatory inspections, and lower tax rates. For more on this point, see my colleague Tom Ferguson’s recent paper with Paul Jorgensen and Jie Chen, which reveals how “Too Big to Fail” Wall Street firms and telecom companies have captured the GOP and the Democrats, respectively. (As an aside, isn’t it odd that the same companies orchestrating the expansion of the surveillance state are so concerned about their own privacy?)
But there is sufficient research to suggest there is another, more covert reason that has serious consequences for shareholders. In my recently published Roosevelt Institute paper on the costs and benefits of this disclosure rule, I cite several studies that show corporate executives frequently spend on politics for their own personal advantage rather than the company’s bottom line. These personal benefits include things like prestige, a future political career, star power, or assistance for political allies.
With these kinds of distorted incentives, the lack of information available to the public about corporate political spending puts shareholders and potential investors at enormous risk. Why would they want to invest in a company that is undertaking activities that are more likely to benefit its executives than its investors? Requiring corporations to disclose their political spending, on the other hand, would do the following:
—Enable investors to make informed investment decisions. Good information is always key to helping potential shareholders calculate the risk they are taking by investing in a company or helping current shareholders decide if they want to hold on to a company’s stock.
—Create the motivation for corporate executives to focus less on their own personal benefit and more on the political spending that would increase shareholder wealth. By disclosing their political activities, corporate executives would have less of an opportunity to waste company resources for their own advantage.
—Benefit corporations that already share their political spending information. Research suggests companies that already disclose SEC-required information enjoy a bump in stock returns when the particular rule is put in place.
Two years after the lawyers submitted their petition, File No. 4-637 is finally on the SEC’s official agenda and support for the disclosure rule is overwhelming. Recent polling finds that 79 percent of surveyed Republicans and nearly 100 percent of Democrats support the rule, and more than 600,000 public comments supporting the rule have been submitted to the SEC. Major institutional investors are also in agreement. Former Vanguard mutual fund CEO John C. Bogle, six state treasurers, CalPERS and other pension funds, and many more are also in support. The rule also has the endorsement of small-business owners across the country, as large companies have a competitive advantage over smaller businesses because of their ability to influence lawmakers and agencies through campaign contributions and lobbying.
The pushback against disclosure is typically about the costs of disclosure. But companies already have to document their political spending for the IRS, so the additional cost would be, at most, the few hours it would require an employee to copy and paste data from an internal file into a public one. Furthermore, companies already submit annual forms to the SEC. The political spending information would simply be a few additional lines of text added to these forms.
A more valid concern about this rule is that, if companies are required to disclose this information to the SEC, the information could be exploited by their competitors and harm the companies’ bottom line. But corporate political activities are already well known among industry competitors. In fact, sometimes political spending is even coordinated among industry groups. The people who are actually excluded from this information are the ones who need it most: investors.
At a briefing held this past Wednesday organized by the Corporate Reform Coalition, Senators Elizabeth Warren (D-MA) and Robert Menendez (D-NJ) called for the SEC to finally adopt this important rule. “There is no excuse,” said Warren, “There is no reason […] for saying a corporation wants to be able to spend shareholders’ money and not tell shareholders how that money is being spent.”
By: Susan Holmberg, The National Memo, November 1, 2013
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