“It’s Time To Get Creative”: Want To Cut The Rich’s Influence? Take Away Their Money!
Chief Justice John Roberts this week continued his gradual judicial elimination of America’s campaign finance laws, with a decision in McCutcheon v. FEC that eliminates “aggregate” contribution limits from individuals to political parties, PACs and candidates. The decision may not have a catastrophic effect, in a world where individuals were already permitted to donate unlimited sums to independent political organizations, but it is just another move toward the end of regulation of political spending altogether. If Americans want to limit the influence of money on politics, they will have to start getting more creative.
Roberts’ specialty is “faux judicial restraint,” in which he achieves his radical desired goals over the course of many incremental decisions instead of one sweeping one. In this case, as many observers have noted, Roberts pointed to our current easily circumvented caps on political spending as justification for lifting yet another cap, without noting that the Roberts court helped create the current system to begin with. Our campaign finance laws have not quite yet been “eviscerated,” but the trend is clear. Roberts and Justice Clarence Thomas, who penned a partial dissent calling for all regulation of political spending to be eliminated, have something close to the same end goal, but Roberts is willing to be patient in getting there.
As long as Roberts and his fellow conservatives dominate the Supreme Court — and it seems likely that they will continue to dominate it for years to come — campaign finance reformers are going to find themselves sabotaged at every turn. As Rick Hasen says: “It is hard to see what will be left of campaign finance law beyond disclosure in a few years.”
By: Alex Pareene, Salon, April 3, 2014
“Wake Up, People, And See The Danger We’re In”: While Watching With Eyes Glazed, Democracy Is Being Stolen
This is a column about campaign finance reform.
And your eyes glazed over just then, didn’t they?
That’s the problem with this problem. Americans know that government truly of, by and for the people is unlikely if not impossible so long as the system is polluted by billions of dollars in contributions from corporations and individual billionaires. Half of us, according to Gallup, would like to see public financing of campaigns; nearly 80 percent want to limit campaign fundraising.
And yet somehow, the issue seems to lack a visceral urgency in the public mind. William Ostrander understands that all too well.
“There are people that will go nuts over the Second Amendment,” he says in a telephone interview. And not to diminish the importance of self-defense, he adds, but “when you look at the practical character of it, what’s going on in campaign finance corruption is far more injurious to their lives, their well-being and their children’s lives than anything most people have had to deal with with the Second Amendment.”
Ostrander is a farmer in tiny San Luis Obispo, CA, and the director of something called Citizens Congress 2014. Its members include a schoolteacher, a small-business man, a firefighter, a general contractor and a doctor — your basic average Americans — who have collectively invested thousands of volunteer hours to set up a summit (June 2-5) of lawyers, lawmakers, academics, advocacy groups and other experts.
Their aim: to brainstorm strategies and craft a plan of action to eliminate the influence of big money in politics.
Quixotic? Perhaps. But Ostrander says he has commitments from a number of high-profile individuals, including: former labor secretary Robert Reich, Harvard law professor Lawrence Lessig; and Trevor Potter, the former chairman of the Federal Election Commission, who is probably best known for his appearances on The Colbert Report, where he helped Stephen Colbert set up a SuperPAC.
We should wish them success. Because truth is, while many of us watch with eyes glazed, democracy is being stolen right out from under us. Consider that last week, the Supreme Court issued a ruling further loosening the limits on campaign donations. Consider the unseemly way four presumptive presidential aspirants ran to Las Vegas to kiss Sheldon Adelson’s ring when the billionaire casino magnate announced he was looking for candidates to support. Consider what billionaire Tom Perkins said in February: Only taxpayers should have the right to vote and the rich should have more votes.
We’re already moving in that direction. As new Voter ID laws and other restrictive measures cull the electorate of poor people, brown people and young people, as the Supreme Court further tilts the playing field toward the monied and the privileged, the notion of one person, one vote, the idea that we each have an equal say in the doings of our government, comes to feel … quaint if not downright naive.
So the politician, though she came to office determined to do right by her constituents, finds she must pay greater attention to the needs of a large donor than to those of the people she was elected to represent. And you get paradoxes like the one last year, where, although 91 percent of us wanted criminal background checks for all gun sales, somehow that didn’t happen, didn’t even come close.
It’s not the politicians’ fault, says Ostrander. “There are some really great people in Congress, honestly. It’s the system that’s broken. The system needs an intervention.”
And that won’t happen until or unless more Americans wake up from their stupor and recognize this as the clear and present danger it is. Ever feel your government doesn’t represent you?
That’s because it doesn’t.
By: Leonard Pitts, Jr., Columnist, The Miami Herald; Published in The National Memo, April 9, 2014
“Beyond Corruption”: A Campaign Finance System Warped Beyond What It Would Be Under Any Reasonable Conception Of Democracy
There was a time in our history, thankfully long past now, when bribery was common and money’s slithery movement through the passages of American government was all but invisible, save for the occasional scandal that would burst forth into public consciousness. Today, we know much more about who’s getting what from whom. Members of Congress have to declare their assets, lobbyists have to register and disclose their activities, and contributions are reported and tracked. Whatever you think about the current campaign finance system, it’s much more transparent than it once was.
But if outright bribery is rare, should we say that the system is good enough? It’s a question we have to answer as we move into a new phase of the debate over money in politics. In the wake of last week’s Supreme Court decision in McCutcheon v. F.E.C., many liberals are nervous that the Court’s conservative majority is poised to remove all limits on how much can be donated to candidates and parties. For their part, conservatives seem to be preparing to open a new front in this seemingly endless battle, this time on the disclosure requirements that allow us to track who’s spending money to get their favored candidates elected. But those of us who worry about money’s distorting effects on the process would do well to acknowledge that the combination of more transparency and more money—much, much more money—has created a new reality with dangers that aren’t well described by the traditional conception of “corruption.”
Over the last few decades of campaign finance history, the immediate arguments have changed many times. Sometimes we argued over “soft money” contributions to political parties, sometimes we argued over phony “issue ads,” or 527 organizations and 501(c)(4) organizations, or corporate contributions and aggregate contributions. The specific locus of controversy keeps changing because political money always seems to find its way around whatever obstacles are placed in its path. And the fundamental divide that runs through all these arguments is, just as it has always been, that liberals want to reduce money’s influence over politics while conservatives want to increase it.
Conservatives might protest that that’s not really true; they just care deeply about freedom. But no one buys that for a minute. Their position on the issue is both practical and ideological. They know that if the super-wealthy are allowed to put as much of their money as they want into elections, Republicans will benefit more than Democrats. It’s no wonder that Republican party chair Reince Priebus called the McCutcheon decision a “very big victory for the RNC.” And they genuinely believe that’s as it should be; both the poor person and the rich person have the same right to donate large amounts of money to candidates, and if in practice it’s a right only the rich person can exercise, well that’s the way of the world.
And exercise it they do, with candidates, parties, and independent groups the grateful recipients of that civic-minded largesse growing larger with each passing election. But if your idea of “corruption” is only that which is illegal under bribery laws, that isn’t a problem that demands a solution. In the McCutcheon decision, Justice Roberts was quite clear in his belief that “Any regulation must…target what we have called “quid pro quo” corruption or its appearance…a direct exchange of an official act for money.” Large donations meant to gain the donor access or mere influence over lawmakers, he argued, aren’t enough. In his dissent, Justice Breyer took issue with this rather pinched view, saying “we can and should understand campaign finance laws as resting upon a broader and more significant constitutional rationale than the plurality’s limited definition of ‘corruption’ suggest.”
So maybe what we have here is in part a problem of nomenclature. If you don’t want to call it “corruption,” call it “distortion”—the creation of a system that is warped far beyond what it would be under any reasonable conception of democracy, even if nobody’s breaking any laws.
There is a meaningful difference. Most of the benefits big money looks for these days are spread beyond an individual, sometimes to an entire industry (like banks or oil companies) and sometimes to an even larger group of people and entities who have a common interest, like wealthy people who want to keep taxes on investment income lower than taxes on wage income. If someone like the Koch brothers succeeds in getting their favored candidates elected and their favored policies enacted, many billionaires and corporations will smile in appreciation. They won’t be doing it just for themselves.
There’s an important caveat, which is that money can have a great influence on the arcane details of legislation, where the public neither knows nor particularly cares what’s going on. Lobbyists still give plenty of money to members of Congress, and they do so to ensure the access that allows them to nibble at the nation’s laws for their clients’ benefit. In and of itself, money may not be able to buy a big, visible policy change—a reduction in the top tax rate or the killing of a minimum wage bill, for instance. But it can still buy an obscure provision in the nation’s banking laws, one that could be worth billions to some very interested parties but makes no front-page news.
Even disclosure of all campaign contributions to every type of independent group would probably have just a small impact in reducing the distortion money imposes on the system, in part because citizens can’t be expected to expend the effort to follow its every tendril. When a voter sees an ad casting aspersions on Senator Smiley’s opponent and hears “Americans for an American America is responsible for the content of this advertising,” what can she conclude? Not much, unless she happens to also read an article informing her that AfaAA is a creation of Oswald Greedyhands, whom some consider a heroic job-creator and others consider a nefarious exploiter of working people. Then she’s going to have to think about Oswald’s relationship with Senator Smiley, and learn about the Senator’s legislative record to see what favors he might have done for Greedyhands Industries. It’s a lot to expect of a citizen who has her own life to lead.
So even if the information is out there somewhere, and activists sound the alarms, so long as the money keeps pouring in, the system will bend inexorably toward the interests of those who fund it. A plutocratic system of government of, by, and for the wealthy isn’t necessarily “corrupt,” in the sense of being awash in specific, explicit bribes. But it isn’t particularly democratic, either.
By: Paul Waldman, Contributing Editor, The National Memo, April 7, 2014
“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
“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
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