“Justice Roberts Defends The Embattled Rich In McCutcheon”: With Laundered Contributions, You Can Now Buy Off Whole Committees
Chief Justice John Roberts’s majority opinion in McCutcheon v. Federal Election Commission, in which the Supreme Court struck down aggregate limits on campaign donations, offers a novel twist in the conservative contemplation of what Nazis have to do with the way the rich are viewed in America. In January, Tom Perkins, the Silicon Valley venture capitalist, worried about a progressive Kristallnacht; Kenneth Langone, the founder of Home Depot, said, of economic populism, “If you go back to 1933, with different words, this is what Hitler was saying in Germany. You don’t survive as a society if you encourage and thrive on envy or jealousy.” Roberts, to his credit, avoided claiming the mantle of Hitler’s victims for wealthy campaign donors. He suggests, though, that the rich are, likewise, outcasts: “Money in politics may at times seem repugnant to some, but so too does much of what the First Amendment vigorously protects,” he writes:
If the First Amendment protects flag burning, funeral protests, and Nazi parades—despite the profound offense such spectacles cause—it surely protects political campaign speech despite popular opposition.
So the problem is that even Nazis are treated better than rich people—less constrained by public anger in their ability to speak out. Or pick your analogy: when thinking about people who want to donate large sums of money to candidates, should we compare their position to that of the despised and defeated, like the Nazis in Skokie, Illinois, in the nineteen-seventies, or of scorned dissidents, like flag-burners, trying to get their voice heard with their lonely donations?
As in Roberts’s opinion in Shelby v. Holder, in which the Court overturned parts of the Voting Rights Act last year, the people we think of as having the power are, in fact, embattled, the victims of schemes, driven by popular opinion, meant to “restrict the political participation of some in order to enhance the relative influence of others,” as Roberts put it. “The whole point of the First Amendment is to afford individuals protection against such infringements,” he wrote, adding:
No matter how desirable it may seem, it is not an acceptable governmental objective to “level the playing field,” or to “level electoral opportunities,” or to “equaliz[e] the financial resources of candidates.”
There is, apparently, a fine line between efforts to keep our political system from being for sale and a social experiment in levelling.
Roberts’s opinion left intact limits on how much a person can donate to a single candidate or party committee, but it took away the limit on how much money in total a person can give directly to candidates. Until this case, the totals were $48,600 to individuals and $74,600 to committees per election cycle. (Shaun McCutcheon, the plaintiff, said he wanted to keep giving directly to Republicans after he’d reached his limits; the Republican National Committee joined him in the case, saying it would be happy to take his money.) Roberts recognized, as the Court long has, that the government has an interest in preventing corruption which allows it to limit the size of a check that one person can hand one candidate. Earlier decisions allowed the aggregate limits in order to prevent donors from using multiple contributions to get around the cap, by giving to numerous committees that might pass the money around and get it to the candidate anyway. Stephen Breyer’s dissent—he was joined by Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan—lays out a number of quite practical ways this could happen, but Roberts dismisses those arguments as silly.
“It is hard to believe that a rational actor would engage in such machinations,” Roberts writes, after examining how a person could donate to a hundred PACs to get money to a hypothetical candidate named Smith. He may simply be lacking in imagination here: the immediate effect of McCutcheon is likely to be the development of structures and vehicles for effectively laundering contributions through many small channels, and the emergence of specialists who know how to set these things up. Roberts might think that the complexity—the potential paperwork—is a guarantor against corruption, but he has too little faith. We’ve got the technology to get it done.
Roberts’s other argument is a little sad: “That same donor, meanwhile, could have spent unlimited funds on independent expenditures on behalf of Smith.” In other words, aggregate limits wouldn’t foster corruption, because using money to influence a campaign is much easier with the sort of independent expenditures that Citizens United makes possible.
Citizens United or no, McCutcheon will set up a large-scale experiment in how money is used and passed around, with new kinds of mega-bundling, and how coördinated donations either impose uniformity on a party’s far-flung candidates or help to solidify regional or ideological blocs. It may be a different kind of leveller than Roberts imagines; it could also be a way to financially fuel intra-party civil wars. And that is quite separate from the new potential for influence peddling. Instead of targeting a single Congressman, you can try to buy off a whole committee.
But then Roberts relies on a very narrow measure of corruption: “Ingratiation and access … are not corruption,” he writes, quoting Citizens United. (There are a number of citations of Citizens United in this decision.) The argument of McCutcheon, in effect, is that a political party itself cannot, by definition, be corrupted: “There is a clear, administrable line between money beyond the base limits funneled in an identifiable way to a candidate—for which the candidate feels obligated—and money within the base limits given widely to a candidate’s party—for which the candidate, like all other members of the party, feels grateful.” The gratitude may only be for a place of safety where donors, assailed by the popular opinion of bitter, poorer people, can find a little bit of solace.
By: Amy Davidson, The New Yorker, April 2, 2014
“The Politics Of Losing Sorely”: How McCutcheon, Citizens United And Voting Restrictions Are Hurting Our Democracy
So let’s get right down to it: when you really think about it, what makes America different from other countries? Yes, there are lots of good answers, but if you ask me, it has something to do with this: one person, one vote.
It’s a pretty simple phrase, but in it lies the promise that no matter who you are, or where you come from, when the rubber hits the road your voice is worth just as much as anyone else’s. You have a say. And no one else’s say is more important than yours.
But for that to work, every citizen in good standing has to have a meaningful opportunity to participate in the process. And the question before us today is: Is that getting easier or harder, and which option is more consistent with our concept of American democracy?
Take a look at cases like Citizens United and, this week, McCutcheon, for example. They do one thing: give the very wealthy more influence over elections in the United States. It’s like saying: instead of an electoral process where everyone’s voice is given the same weight, some people, by virtue of their wealth, are going to get megaphones. Yes, that’s been true, in one way or another, for years, but in its recent rulings the Supreme Court’s been busy making those megaphones even louder.
Something similar is happening on the state level, if only from a different direction. You can see it in the tougher voter ID requirements, the diminution of early voting, law after law aimed at making it harder for some people to vote – in this case, people who just happen to be more likely to vote Democratic. The end result is an electorate with an artificially higher concentration of conservative voters. Terrific for Republicans. Less good for democracy.
Take the federal and state efforts together and it’s a kind of a pincer movement aimed at producing a “representative” government that’s actually a lot more conservative than its constituents, a representative government that’s not really all that, you know, representative.
This is what happens when one segment of the population says: We’ve been losing too much and we’re sick of it. But instead of retooling our arguments to better match where the American electorate is, or trusting in the traditional American way of persuading a skeptical audience, we’re instead going to lift the hood on the democratic process itself and see if we can change the system so that outcomes we prefer become more likely – not because they are more representative of the American people but because we’ve figured out how to get a few more of our fingers on the electoral scale.
But here’s the thing: being a good loser is, actually, an essential part of the American system. Every few years, we expect our politics to spit out a government that roughly reflects the priorities and interests of a majority of its citizens, because we all get to participate in the process equally. We may not like what that government looks like, but we don’t go storming across the Rubicon, angry pitchforks in hand because the inclusiveness of the process gives it a kind of legitimacy that you don’t find in a lot of other places. We live with it because we know it basically reflects the views of our peers (as opposed to: some remote cabal) and because we’ll have a meaningful opportunity to change it next time around.
And the fact of the matter is: its good for the process when someone loses on the merits. Because losing fair and square encourages the loser to stop regurgitating the same losing arguments over and over again, and instead to come up with something better. Isn’t that what we want the competition of ideas that plays out in every election to produce? Or are we instead going to stand by and let the sorest of the losers say: If I can’t win the game as its supposed to be played I’m going to change the game, and I don’t much care if doing so undermines one of the very things that makes America a beacon of liberty in an increasingly Putinized world.
Of course, it isn’t entirely up to us, but that’s what happens when the Supreme Court steps in. For me, that only increases the urgency of the following question: is there a point at which changing the nature of electoral inputs, either by giving some outsized influence over the process or making it harder for others to participate at all, gets so out of whack that it begins to undermine the legitimacy of electoral outcomes? If you really love America qua America, you know that’s a place we should never be.
No we’re not there yet.
But it’s sure not getting any easier.
By: Anson Kaye, U. S. News and World Report, April 4, 2014
“Reared In The Game”: On Our Highest Court, A Former Lobbyist Guts Campaign Finance Reform
For a large and bipartisan majority of Americans, the increasing power of money in politics is alarming, but not for the conservative majority of the United States Supreme Court, whose members appear to regard the dollar’s domination of democracy as an inevitable consequence of constitutional freedom — and anyway, not a matter of grave concern. Expressed in their decisions on campaign finance, which continued last week to dismantle decades of reform in the McCutcheon case, the Court’s right wing sees little risk of corruption and little need to regulate the flamboyant spending of billionaires.
Given the behavior of certain conservative justices, such as Antonin Scalia, Clarence Thomas, and Samuel Alito – who flout the rules that govern partisan behavior among lower-court judges – it is easy to regard their rulings as partisan cynicism. But there is also an element of willful naiveté when the conservatives claim, for instance, that corrupt donations will be exposed by the instant transparency of publication on the Internet. Any reporter who has covered elections can attest that there are dozens of ways for wealthy donors to avoid public scrutiny until it is much too late to matter.
But if right-wingers like Scalia and Thomas are simply pursuing ideological objectives, what about Anthony Kennedy, the Reagan appointee from California who was long seen as a moderating influence and a “swing vote”? On the issue of campaign finance, Kennedy has marched along with the majority, seeming just as fervent in his urge to destroy every regulation and protection against the “malefactors of great wealth” erected since the days of Theodore Roosevelt.
It was Kennedy who wrote the majority opinion in Citizens United, which dismissed the notion that corruption will arise from unlimited political campaign contributions because they will all be disclosed. “Citizens can see whether elected officials are ‘in the pocket’ of so-called moneyed interests …and disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way,” he wrote. “This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.”
But if any Supreme Court justice knows how ridiculous that sounds, it must be Kennedy – whose own background as a corporate lobbyist and son of a lobbyist has been forgotten in nearly three decades since his Senate confirmation in 1987.
Yes, Kennedy was a respected appellate court judge before Reagan appointed him to the high court. But before that, he grew up and then worked as an attorney in Sacramento, where his father became a “legendary” lobbyist in a state capital renowned as “freewheeling” (a polite term that means “routinely corrupt”).
His father, Anthony “Bud” Kennedy, was a backslapping, hard-drinking partner in a powerful lobbying law firm run by one Arthur “Artie” Samish, “the “secret boss of California” who finally went to prison on tax charges in the mid-1950s, while young Tony was studying to enter law school. Samish liked to brag that he had amassed more power than anyone else in the state, including the governor, that he could buy any legislator with “a baked potato, a bottle, or a broad,” and that he was able to “unelect” any lawmaker who didn’t vote his way.
The major clients of Samish and Kennedy were racing, entertainment, and liquor interests, notably including Schenley Industries, then run by J. Edgar Hoover’s mobbed-up pal Lewis Rosenstiel. When Bud Kennedy died suddenly in 1963, young Tony was only two years out of law school. But he went into the family business and inherited his late father’s clientele.
While Kennedy always insisted that lobbying was only a “sideline” in his law practice, his billings were substantial – the equivalent of hundreds of thousands or more in today’s dollars. In 1974, he pushed through a bill for Capitol Records that saved the company (and cost the state) millions in sales taxes.
How did he do it? The same way that special interests work their will today – by doling out huge wads of cash to lawmakers on behalf of his clients. The single largest recipient of Kennedy lobbying largesse, according to the Los Angeles Times, was a legislator who introduced a bill to benefit the opticians’ lobby that Kennedy himself had drafted (it passed). He gave that guy alone about $6,500 in campaign contributions over six years, or roughly $40,000 in today’s dollars.
So if anybody on the Court knows how the political and legislative process is greased in this country, that would be Anthony Kennedy. After all, he was reared in the game. And it shouldn’t deceive anyone when he sounds as if he doesn’t understand how things work or who wins in that perverse process – and how everyone else loses.
By: Joe Conason, Editor in Chief, The National Memo; Author, Big Lies: The Right-Wing Propaganda Machine and How It Distorts the Truth; Published in The National Memo, April 4, 2014
“Reclaiming Democracy”: A Resounding Vote Against Koch Brothers Dollarocracy
Even as the US Supreme Court attempts to expand the scope and reach of the already dangerous dominance of our politics by billionaires and their willing servants, Americans are voting in overwhelming numbers against the new politics of dollarocracy.
The headline of the week with regard to the campaign-finance debate comes from Washington, where a 5-4 court majority has—with its McCutcheon v. Federal Election Commission decision—freed elite donors such as the politically-ambitious Koch Brothers to steer dramatically more money into the accounts of favored candidates, parties and political action committees. The decision makes it clear that the high court’s activist majority will stop at nothing in their drive to renew the old Tory principle that those with wealth ought to decide the direction of federal, state and local government.
But the five errand boys for the oligarchs who make up that majority are more thoroughly at odds with the sentiments of the American people than at any time in the modern history of this country’s judiciary.
We know this because the people are having their say with regard to the question of whether money is speech, whether corporations have the same rights as human beings and whether billionaires should be able to buy elections.
In every part of the country, in every sort of political jurisdiction, citizens are casting ballots for referendum proposals supporting a Constitutional amendment to overturn US Supreme Court rulings that have tipped the balance toward big money.
In so doing, these citizens are taking the essential first step in restoring democracy.
On Tuesday, thirteen Wisconsin communities, urban and rural, liberal and conservative, Democratic-leaning and Republican-leaning answered the call of constitutional reform. Even as groups associated with billionaire donors Charles and David Koch were meddling in local elections in the state, voters were demanding, by overwhelming margins, that the right to organize fair and open elections be restored.
It even happened in Wisconsin Governor Scott Walker’s hometown of Delavan, where voters faced the question:
Shall the City of Delavan adopt the following resolution:
RESOLVED, the City of Delavan, Wisconsin, calls for reclaiming democracy from the corrupting effects of undue corporate influence by amending the United States Constitution to establish that:
1. Only human beings, not corporations, unions, nonprofit organizations nor similar associations are entitled to constitutional rights, and
2. Money is not speech, and therefore regulating political contributions and spending is not equivalent to limiting political speech.
BE IT FURTHER RESOLVED, that we hereby instruct our state and federal representatives to enact resolutions and legislation to advance this effort.
76 percent of the Delavan residents who went to the polls voted “Yes!”
They were not alone. A dozen other Wisconsin communities faced referendums on the same day. Every town, village and city that was offered a choice voted to call on state and federal officials to move to amend the US Constitution so that citizens will again be able to organize elections in which votes matter more than dollars.
The Wisconsin votes provided the latest indication of a remarkable upsurge in support for bold action to renew the promise of American democracy. Since the Supreme Court began dismantling the last barriers to elite dominance of American politics, with its 2010 Citizens United decision, sixteen states and more than 500 communities have formally requested that federal officials begin the process of amending the constitution so that the court’s wrongheaded rulings can be reversed.
Last fall, John Bonifaz, the co-founder and executive director of the reform group Free Speech For People, calculated that “In just three years since the Supreme Court’s Citizens United ruling, we have come one third of the way to amending the US Constitution to reclaim our democracy and to ensure that people, not corporations, shall govern in America.”
Since the start of 2014, however, the movement has seen a dramatic acceleration in the grassroots pressure for action. During the first weeks of March, forty-seven town meetings called for a constitutional amendment—in a move that put renewed pressure on the New Hampshire legislature to act on the issue.
It is the experience of big-money politics that has inspired renewed activism for reform.
Wisconsin has had more experience than most states with the warping of democracy by out-of-state billionaires, “independent” expenditures and SuperPAC interventions. Governor Walker’s campaigns have reaped funds from top conservative donors, including the Koch Brothers. And a Koch Brothers-funded group, Americans for Prosperity waded into contests this spring for the local board of supervisors in northern Iron County, where mining and environmental issues are at stake; and in the city of Kenosha, where school board elections revolved around questions of whether to bargain fairly with unions representing teachers. In other parts of the state, business interests poured money into school board contests and local races Tuesday, providing a glimpse of the role corporate cash is likely to play in local, state and national elections in the months and years to come.
The Koch Brothers had mixed success Tuesday. Three Iron County Board candidates who were attacked by Americans for Prosperity mailings and on-the-ground “field” efforts in the county won their elections—beating incumbents who were promoted by the outside group. But in Kenosha, two school board contenders who were seen as anti-union zealots won.
There were, however, no mixed results when voters were given a clear choice between dollarocracy and democracy.
The signal from Wisconsin is that grassroots politics can and does still win.
In fact, it wins big.
Encouraged by groups such as United Wisconsin and Move to Amend, activists went door to door in the depths of winter to place amendment questions on local ballots in towns, villages and cities across the state. Many of the communities were in heavily Republican regions of Wisconsin. Yet, the pattern of support was strikingly consistent; in no community did an amendment proposal win less than 60 percent of the vote, and in several the support was over 85 percent.
“Citizens United opened the floodgates to unlimited corporate spending in our elections. Now, Wisconsin voters are standing up to the corrupting influence the flood of special interest money has had on our elections and in our state and national capitols where laws are made,” says Lisa Subeck, the director of United Wisconsin. “Tuesday’s victories send a clear message to our elected officials in Madison and in Washington that we demand action to overturn Citizens United and restore our democracy.”
Whether all those elected representatives will get the message remains to be seen. Several of the communities that voted Tuesday are in the district of Congressman Mark Pocan, D-Madison, who has already introduced an amendment proposal and has been an ardent backer of reform. But many other communities are represented by recipients of the big-money largesse of Wall Street traders, hedge-fund managers, casino moguls and billionaires looking to cover their bets.
Communities in the home district of House Budget Committee chairman Paul Ryan, R-Wisconsin, voted by margins as high as three to one to support an amendment strategy. The results were similar in conservative Waukesha County, which has historically been a Republican stronghold; in the city of Waukesha, for instance, 69 percent of the electorate called for action to amend the constitution. In Wauwatosa, the Milwaukee suburb where Governor Walker now maintains his voting residence, the vote for an amendment was 64 percent.
Wisconsin has several legislative proposals to put the state on record in support of a constitutional amendment. But they face uphill climbs in the current Republican-controlled legislature. And Walker shows no enthusiasm for reforming the system that has so richly rewarded his campaigns. Yet, grassroots activists like Ellen Holly, who helped organize the amendment vote in Walworth County—the heart of Paul Ryan’s district and Walker’s old home turf—is not blinking. She says it’s essential for the Move to Amend campaign to take the fight into even the most conservative areas and to deliver messages to politicians like Ryan.
The widespread support for overturning Citizens United, especially from rural and Republican-leaning areas offers a reminder that the reform impulse is bipartisan and widespread. The same goes from the broad coalitions that have developed. Among the loudest voices on behalf of the referendum campaign in rural Wisconsin was the Wisconsin Farmers Union, which hailed Tuesday’s voting as “a clear message that we the people are ready to take back our democracy.”
“Citizens United has allowed big money to drown out the voices of ordinary people and created an environment where, too often, our elected officials are sold to the highest bidder,” says Subeck, a Madison city council member who this year is running for the legislature on a promise to focus on campaign-finance issues. “To fully restore public trust in our democracy, we must return control of our elections to the people through common sense campaign finance reform, starting with the reversal of Citizens United.”
By: John Nichols, The Nation, April 3, 2014
“The General Public Will Not Be Heard”: John Roberts Shows He Has No Idea How Money Works In Politics
Shaun McCutcheon is the kind of donor that the Republican Party can’t get enough of. The CEO of Coalmont Electrical Development in McCalla, Alabama, McCutcheon made a small fortune from his work in the mining industry and dedicated much of his life to electing Republicans. The Chairman of the Alabama State Republican Party said that McCutcheon was great at “supporting conservative candidates, getting conservatives elected to office.” Upset that he couldn’t donate more than the federal limit of $46,200 to individual candidates, he teamed up with Senator Mitch McConnell at a CPAC conference in 2012 to launch the latest assault on campaign finance law.
In today’s Supreme Court decision, the Roberts Court, in another 5-4 decision, tore down the aggregate donation restriction. Going forward, donors like McCutcheon can donate up to $3.6 million per cycle, as long as the donations are done in $2,600 blocks to individual candidates.
In reality, the case may not have a huge impact on elections. By tearing down any restriction on the amount that an individual can donate to a Super PAC, Citizens United already opened the spigot on unlimited money in our electoral system. Today’s decision builds on Citizens United but the harm to democracy has already been done.
What is striking about the opinion is how completely off-base Chief Justice Roberts is in his understanding of the role of money in politics. Roberts struck down the law, framing the attempt to limit the flow of money into politics as an attempt to stifle unpopular speech. Just as the First Amendment protects, “flag burning, funeral protests, and Nazi parades—despite the profound offense such spectacles cause—it surely protects political campaign speech despite popular opposition.” For the Roberts Court, wealthy donors are under attack as a minority and need the protection of the Supreme Court. Under the Citizens United framework that money is speech, the court in McCutcheon struck the aggregate limit as a violation of the First Amendment.
The Court comes off as remarkably uninformed when it comes to the relationship between wealthy donors and elected officials. Roberts says that legislation cannot seek to limit what he calls the “general gratitude a candidate may feel toward those who support him or his allies, or the political access such support may afford.” Roberts said “spending large sums of money” would not “give rise to such quid pro quo corruption.” The reality is, of course, that looking for evidence of direct trades of a Congressional vote for a donation will reveal very few instances of corruption. However, as Lawrence Lessig has established, there is a broader system of “dependence corruption” in which candidates must rely on wealthy donors in order to have access to the political system. The Roberts Court reflects a lack of understanding in how money actually operates in our political system and has adopted such a hollow understanding of corruption that they are able to view our system as free of any corrupting influence.
The reality, as Justice Breyer stated from the bench, is that the decisions in Citizens United and McCutcheon “eviscerates our nation’s campaign finance law.” We are left with an inability to regulate the flow of millions into the campaign finance system and a Court that is unwilling to stand up to anything but the most blatant forms of corruption.
Conservatives will celebrate today’s decision as a victory for the First Amendment but the reality is that the right to political speech is under assault from the torrent of money pouring into our elections. This is a point that Justice Breyer captured in his dissent; “Where enough money calls the tune, the general public will not be heard.”
The Supreme Court is now controlling how the Congress can limit the electoral process but, remarkably, not a single Justice has ever held elected office. Since Justice Sandra Day O’Connor, a former State Senator in Arizona, resigned from the Supreme Court in 2005, we have not had a Justice with any experience in elected office. Since she left the Court, Justice O’Connor has openly critiqued the decision in Citizens United, and has argued “we’re in a bit of trouble in this whole area.” While putting elected officials on the Supreme Court has fallen out of fashion, due in part to the extensive voting records they are forced to defend, the Court’s decision in McCutcheon is a reminder that it may be quite valuable to have a Justice who can tell his or her colleagues how a campaign actually works and the impact of money in our electoral system.
If there is any silver lining in this decision, it is that it can help to draw public attention to the outsized role that large-scale donors are playing in our electoral process. The backlash to Citizens United demonstrated that the public does care about this issue and after today’s decision there will be a demand for further action. The decision may not change the landscape of the 2014 elections because donors can already dump huge sums of money into elections but it does show how little the Roberts Court understands about how our campaign finance system actually works. Thanks to the Roberts Court, we no longer have a working campaign finance system; all we have left, as Justice Breyer noted today, is “a remnant incapable of dealing with the grave problems of democratic legitimacy that those laws were intended to resolve.” We are living in a brave new world of elections, a world where millionaires and billionaires speak loudly and the rest of us do the listening.
By: Sam Kleiner, Fellow at Yale Law School’s Information Society Project; Published in The New Republic, April 2, 2014
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