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“The Supreme Court’s Extreme Faith”: The Menendez Case Proves The Supreme Court Was Naive About Campaign Finance Laws

No cameras are allowed inside the main Supreme Court chamber, but on Wednesday, a group of activists—for the second time this year—evaded tight security controls and snuck one in to record themselves causing disorder in the court. Their goal: Decry two of the court’s most controversial rulings on campaign finance, Citizens United v. FEC and McCutcheon v. FEC, which have paved the way for powerful donors and corporations to influence elections.

“Justices, is it not your duty to protect our right to self-government?” a protester is heard yelling in a video posted on YouTube. “Reverse McCutcheon. Overturn Citizens United. One person, one vote.” Court police escorted her out, followed by other protesters, including a man chanting, “We who believe in freedom shall not rest.”

Chief Justice John Roberts was not impressed. SCOTUSblog’s Lyle Denniston, one of the few reporters at the scene, noted he grew impatient and later said, “Oh please,” on top of threatening contempt sanctions against the protesters.

Say what you will of the activists’ stunt or the chief’s reaction—because really, no protest in the world will ever overturn a Supreme Court precedent. But consider what Roberts himself proclaimed in McCutcheon, which turned one year old today: “Spending large sums of money in connection with elections, but not in connection with an effort to control the exercise of an officeholder’s duties, does not give rise to quid pro quo corruption. Nor does the possibility that an individual who spends large sums may garner influence over or access to elected officials.”

McCutcheon invalidated something very specific—the limit on the total amount a person can give to all federal candidates during a two-year election cycle—but Roberts didn’t stop there. Time and again he kept singling out blatant quid pro quo arrangements as the only thing Congress could regulate. Not so with meager attempts to “prevent corruption” or curbing “the appearance of mere influence and access.” Those things aren’t as big a deal under the Constitution. Only tit-for-tat corruption is.

Compare that to the other case the protesters targeted, 2010’s Citizens United, a ruling as grand as it was shocking for the dearth of evidence on which it rested: “We now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.” The court went on: “The appearance of influence or access … will not cause the electorate to lose faith in our democratic order.”

But it turns out corruption, appearances, and influence-peddling are all at the crux of federal charges against New Jersey Senator Bob Menendez. He was indicted Wednesday on several counts of bribery and other offenses, stemming from an allegedly cozy relationship with Salomon Melgen, a Florida ophthalmologist and longtime friend who is accused of giving lavish gifts to the senator. These included a trip to a luxury hotel in Paris, a stay at an upscale villa in the Dominican Republic, contributions to a legal-defense fund, and more than $1 million in donations to various political action groups supporting Democratic candidates—all in exchange for political favors for Melgen, his business interests, and his numerous girlfriends.

Whether these salacious allegations stick or lead to some kind of plea deal will soon be decided; Menendez pled “not guilty” on all charges Thursday. But a sizeable contribution listed in the indictment calls into question the Supreme Court’s extreme faith that large sums of money not directly given to a candidate fail to amount to corruption.

According to prosecutors, Melgen, through his own company, contributed $600,000 to a political action committee aimed at helping Democrats retain control of the Senate. That’s all well and good under Citizens United,except Melgen allegedly earmarked the money so it went directly to the Menendez re-election campaign. That’s also kosher under campaign regulations, except the indictment alleges Menendez “sought and received” the donation—comprised of two checks for $300,000 each, sent to the super PAC in exchange for Menendez’s assistance in resolving a Medicare-related dispute. Interestingly, the indictment notes that Melgen cut one of the checks on the same day he attended an annual fundraiser Menendez hosted.

The legal process will determine the extent to which the alleged favors and contributions are related. But even if they weren’t and the case went away, the Menendez indictment undermines the Supreme Court’s facile conclusion that merely spending large sums of money—absent a clear showing of quid pro quo—isn’t enough to prove that corruption has taken hold. Or the notion that the mere appearance of influence and access to elected leaders fails to be an interest compelling enough to require strong campaign-finance laws—the kind that governs how big donors and big money behave each election cycle.

Chief Justice Roberts may not be too pleased with the recent protests and security breaches at the Supreme Court, but the Menendez case opens the door for some introspection on how recent campaign-finance rulings are reshaping who calls the shots in our democratic order.

 

By: Cristian Farias, The New Republic, April 2, 2015

April 3, 2015 Posted by | Campaign Financing, Democracy, John Roberts | , , , , , , , , | Leave a comment

“Donors Before Constituents”: The First Amendment, According To Mitch McConnell

Have you heard that Senate Democrats are working this week to repeal free speech?

I did, yesterday morning, from Mitch McConnell.

Have you heard that Democrats are going to go out and “muzzle” pastors who criticize them in the pulpit?

We did, from Ted Cruz.

Did you hear that Democrats are going to shut down conservative activists and then “brainwash the next generation into believing that this is how it should be”?

We did, last month, from the Family Research Council’s Tony Perkins.

A good rule of thumb in politics is that the scarier someone sounds, the more you should doubt what they’re saying. Another good rule in politics is not to trust what Mitch McConnell says about money in politics.

Because, yes, that’s what we’re talking about here. Not a secret new Orwellian regime. Not a new anti-pastor task force. What we’re talking about is simply limiting the amount of money that corporations and wealthy individuals can spend to influence our elections.

This week, the Senate is debating a constitutional amendment that would overturn recent Supreme Court decisions that have paved the way for an explosion of big money in politics. In those decisions, including Citizens United and this year’s McCutcheon, the Supreme Court radically redefined the First Amendment to allow corporations and the wealthy to drown out the speech of everyday Americans with nearly unlimited political spending. The Democracy for All amendment would restore to Congress and the states the power to impose reasonable restrictions on money in politics, just as they had before the Supreme Court started to dismantle campaign finance laws.

So, what are Mitch McConnell and Ted Cruz so scared of?

In fact, it wasn’t that long ago that Mitch McConnell supported the very laws that he is now dead-set on blocking. Back in 1987, McConnell said he would support a constitutional amendment to allow Congress to regulate independent expenditures in elections — just as the Democracy for All amendment would. And then he introduced that very constitutional amendment. Either McConnell has dramatically changed his mind regarding what constitutes a threat to the First Amendment, or he’s motivated by something more cynical.

So, if Mitch McConnell doesn’t actually think that limiting the amount of money that wealthy interests can spend on elections is a violation of the First Amendment, what is he up to? Could it be that he now finds it more useful to court the dollars of major donors than the votes of his constituents?

Washington is the only place where campaign finance reform is a partisan issue. A poll this summer found that 73 percent of voters support a constitutional amendment to get big money out of politics. Americans know that our First Amendment is about protecting the speech of citizens, not the interests of wealthy campaign donors.

Faced with a large, bipartisan grassroots movement that threatens their big-spending friends, the only arguments that Mitch McConnell and Ted Cruz have left are wild accusations, flat-out falsehoods, and outlandish interpretations of the Bill of Rights.

 

By: Michael B. Keegan, The Huffington Post Blog, September 9, 2014

September 10, 2014 Posted by | Campaign Financing, Mitch Mc Connell | , , , , , , , | Leave a comment

“All Voices Should Be Heard”: The Government Shutdown Shows Contribution Limits Are Needed More Than Ever

The Supreme Court must uphold the overall contribution limit in McCutcheon v. FEC, and certainly should not consider striking the base limits.

The Supreme Court has never struck down a federal contribution limit, maintaining that these limits are valid to prevent corruption and the appearance of corruption. Right now, when confidence in Congress is at an all time low, it would be extremely unwise to toss aside that precedent.

The fact is, contribution limits are already too high. Candidates for office are over-reliant on donors with the capabilities to give the most and current federal limits are far higher than what the average American can afford to give. As evidence of this, one need not look further than the 2012 elections, in which House candidates raised 55 percent of their individual contributions in chunks of $1,000 or more from just .06 percent of the population and Senate candidates raked in 64 percent in contributions of that size from about 133,000 individuals.

Striking the aggregate limit would make that problem significantly worse. Only a small handful of individuals comes even close to the aggregate limit. In 2012 only 1,219 people came within 10 percent of the $117,000 limit, which is not at all surprising when you consider that this is more than twice what the average American household earns in a year.

Based on the behavior and the giving capability of those 1,219 donors, U.S. PIRG and Demos project in our new report that absent an overall limit those donors would increase their giving, pumping an estimated $1 billion dollars into the next four federal elections, making candidates more dependent on a small set of people for big money and minimizing the donations of everyday Americans. To play out what that would look like, we estimated that if the limit had not been in place in 2012, the 1,219 donors would likely have given about 150 percent of what President Obama and Governor Romney raised from over four million small donors.

Now in the second week of the shutdown, we are currently feeling the full effect of what happens when a handful of extreme individuals exerts disproportionate power in government. Lifting the overall limit, as McCutcheon is asking the Court to do, would give even more clout to a small set of very wealthy individuals. This is not only inherently anti-democratic but also has real world consequences. New research from Public Campaign shows that these big donors are highly partisan donors indicating that striking the limits would further exacerbate polarization in Washington.

In order for democracy to function every citizen should have meaningful opportunity to influence the actions of government and we must also have faith that our voices will be heard, regardless of whether or not we can afford to make a $9.9 million, $2,500, or even $200 political disbursement.  The Supreme Court has long recognized this, emphasizing the importance of protecting against the appearance of corruption. However, it severely miscalculated the effect its decision in Citizens United would have in that arena.

Most Americans do not feel that our voices are being heard on Capitol Hill and who could blame us? In Citizens United the Supreme Court handed a giant megaphone to the wealthiest interests and on Tuesday it will consider turning up the volume even higher. It’s interesting that those who argue that limits threaten free speech seem unconcerned with the speaking ability of the majority of Americans who cannot afford to write a $50,000 check to a political party.

The last thing we need right now is to increase the giving of the donors with the deepest pockets. Rather, we should be increasing the breadth of Americans providing the funds needed to run campaigns. We need policies that encourage more everyday Americans to engage in politics by making small contributions to candidates and causes: low contribution limits, matching public funds, and a tax refund for small dollar gifts. We need the Supreme Court to respect longstanding precedent and to uphold the aggregate and the base contribution limits.

 

By: Blair Bowie, U. S. News and World Report Debate Club, October 8, 2013

October 11, 2013 Posted by | Campaign Financing, Supreme Court | , , , , , | 2 Comments

   

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