By: E. J. Dionne, Jr, Opinion Writer, The Washington Post, February 5, 2012
U. S. Supreme Court Stays Montana Decision Undermining Citizens United
Late last year, the Montana Supreme Court handed down a decision that was widely viewed as openly defying the U.S. Supreme Court’s election-buying decision in Citizens United. Last night, the U.S. Supremes issued an entirely unsurprising order staying that decision. As a result, Montana will now face the same epidemic of corporate and other wealthy donor money that infected the other 49 states in the wake of the Citizens Uniteddecision.
There are, however, two possible silver linings in last night’s decision. The first is that the Supreme Court did not agree to the corporate parties’ request in this case to simply reverse the Montana decision without a full hearing or even necessarily an opinion. Yesterday’s order suspends the Montana decision “pending the timely filing and disposition of a petition for a writ of certiorari,” meaning that there is still a possibility that the Court could give the case a full hearing that would almost certainly raise the question of whether Citizens United should be overruled.
The second silver lining is a separate statement from Justices Ginsburg and Breyer attached to yesterday’s order:
Montana’s experience, and experience elsewhere since this Court’s decision in Citizens United v. Federal Election Comm’n make it exceedingly difficult to maintain that independent expenditures by corporations “do not give rise to corruption or the appearance of corruption.” A petition for certiorari will give the Court an opportunity to consider whether, in light of the huge sums currently deployed to buy candidates’ allegiance, Citizens United should continue to hold sway. Because lower courts are bound to follow this Court’s decisions until they are withdrawn or modified, however, I vote to grant the stay.
This statement suggests that there are at least two votes on the Supreme Court eager to reconsider one of the modern Supreme Court’s most erroneous opinions just two years after it was decided. Such a swift reversal would very unusual, if not entirely unprecedented. In light of the massive influx of corporate and wealthy donor money flooding our democracy and threatening to elect a generation of candidates personally beholden to wealthy benefactors, however, this kind of swift admission of error by the justices is entirely necessary.
By: Ian Millhiser, Think Progress, February 18, 2012
Catholics’ Enraged Response To Obama Birth-Control Policy Is Misplaced
From all the hysteria over the administration’s insistence that Catholic institutions provide insurance that covers birth control, you’d think it was a big change—but 28 states already have such laws on the books.
Mitt Romney has been railing again the Obama administration’s refusal to exempt Catholic-affiliated institutions like hospitals and universities from its mandate that health insurance cover contraception. “Such rules don’t belong in the America that I believe in,” he writes in a Washington Examiner op-ed. Perhaps no one told him that such rules were in place in Massachusetts the entire time he was governor, because as far as I’ve been able to tell, he never raised a word of objection then.
From the enraged response to Obama’s policy, one would think it represented some sort of radical break with the status quo. In The Daily Beast, Kirsten Powers suggests the administration is threatening to put Catholic institutions out of business. “One thing we can be sure of: the Catholic Church will shut down before it violates its faith,” she writes.
But many Catholic institutions are already operating in states that require contraceptive coverage, such as New York and California. Such laws are on the books in 28 states, and only eight of them exempt Catholic hospitals and universities. Nowhere has the Catholic Church shut down in response.
Time and again, when these laws were being considered, Catholic bishops and their sympathizers made the same sort of hysterical arguments we’re hearing today. “We will not be daunted by the abortion and contraception extremists whose aggressive agenda includes putting the Catholic Church out of the business of providing health care and social services throughout the state of New York,” Cardinal Edward M. Egan said at an Albany press conference in 2002, when New York was considering the Women’s Health and Wellness Act.
Nevertheless, the law passed—it was signed by Republican Gov. George Pataki—with exactly the same sort of exemptions we’re now seeing at the federal level. There’s a conscience clause that applies to Catholic churches, grade schools, and parishes, but not institutions that serve the broader community, such as universities and hospitals. The church sued, but New York’s State Court of Appeals ruled against it; in 2007, the Supreme Court let the ruling stand. Likewise, California’s Supreme Court upheld that state’s version of the mandate.
And yet, somehow, Catholic institutions have continued operating. Nationwide, major Catholic universities including Fordham, Georgetown, and DePaul all offer birth-control coverage. So does Dignity Health, until recently known as Catholic Healthcare West, the fifth-largest health system in the country. In Massachusetts, the six former Caritas Christi Catholic hospitals, which were recently acquired by Steward Health Care System, all complied with the state law.
Some, it is true, found ways to get around the mandate. Instead of buying insurance policies, they self-insured—essentially covering their employees’ medical bills from their own funds. The new Obama administration policy closes that loophole, though it may well open others. Speaking to Morning Joe on Tuesday, Obama adviser David Axelrod suggested that some compromise with the bishops may be in the works. “[W]e’re going to look for a way to move forward that both provides women with the preventative care that they need and respects the prerogatives of religious institutions,” he said.
Those prerogatives are important, but they don’t trump the rights of the general public. That’s not an extreme notion—it’s one that Romney subscribed to when he signed a law forcing Catholic hospitals to provide emergency contraception to rape victims. Obama’s policy, says Sarah Lipton-Lubet, policy counsel at the American Civil Liberties Union, “really is completely constitutionally unremarkable. There is a whole host of anti-discrimination and labor laws that institutions that operate in the public sphere like religiously affiliated hospitals and universities comply with, or are supposed to comply with.”
And make no mistake: health plans that exclude services used only by women constitute a form of discrimination. That’s why in 2000, the U.S. Equal Employment Opportunity Commission ruled that employers that cover prescription drugs but do not cover contraception are in violation of Title VII of the 1964 Civil Rights Act. Such employers have “circumscribed the treatment options available to women, but not to men,” it said. The EEOC’s ruling made no exemptions for religiously affiliated organizations. Indeed, in 2009, responding to a lawsuit, the EEOC ruled that the Catholic college Belmont Abbey discriminated against women when it refused to cover birth control.
“When employers provide fringe benefits to their employees as part of their pay that include preventative health-care services and prescription drugs, it’s sex discrimination to reduce women’s pay by not giving them coverage for health-care needs that they have,” says Marcia Greenberger of the National Women’s Law Center.
The Obama administration, then, was acting in line with several longstanding state and federal precedents when it issued these new regulations, something that’s been totally obscured amid all the caterwauling we’ve heard in response. “Women who work at hospitals or universities or social-service agencies with religious affiliation don’t need contraceptive access any less than women who work at other sorts of hospitals and universities and social-service agencies,” says Lipton-Lubet. “The ideology of their employers doesn’t affect their health-care needs and shouldn’t affect their health-care access.”
By: Michele Goldberg, The Daily Beast, February 8, 2012
“We The People,” Not “We The Rich”: The Citizens United Catastrophe
We have seen the world created by the Supreme Court’sCitizens United decision, and it doesn’t work. Oh, yes, it works nicely for the wealthiest and most powerful people in the country, especially if they want to shroud their efforts to influence politics behind shell corporations. It just doesn’t happen to work if you think we are a democracy and not a plutocracy.
Two years ago, Citizens United tore down a century’s worth of law aimed at reducing the amount of corruption in our electoral system. It will go down as one of the most naive decisions ever rendered by the court.
The strongest case against judicial activism — against “legislating from the bench,” as former President George W. Bush liked to say — is that judges are not accountable for the new systems they put in place, whether by accident or design.
The Citizens United justices were not required to think through the practical consequences of sweeping aside decades of work by legislators, going back to the passage of the landmark Tillman Act in 1907, who sought to prevent untoward influence-peddling and indirect bribery.
If ever a court majority legislated from the bench (with Bush’s own appointees leading the way), it was the bunch that voted for Citizens United. Did a single justice in the majority even imagine a world of super PACs and phony corporations set up for the sole purpose of disguising a donor’s identity? Did they think that a presidential candidacy might be kept alive largely through the generosity of a Las Vegas gambling magnate with important financial interests in China? Did they consider that the democratizing gains made in the last presidential campaign through the rise of small online contributors might be wiped out by the brute force of millionaires and billionaires determined to have their way?
“The appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy.” Those were Justice Anthony Kennedy’s words in his majority opinion. How did he know that? Did he consult the electorate? Did he think this would be true just because he said it?
Justice John Paul Stevens’ observation in his dissent reads far better than Kennedy’s in light of subsequent events. “A democracy cannot function effectively,” he wrote, “when its constituent members believe laws are being bought and sold.”
But ascribing an outrageous decision to naivetéis actually the most sympathetic way of looking at what the court did in Citizens United. A more troubling interpretation is that a conservative majority knew exactly what it was doing: that it set out to remake our political system by fiat in order to strengthen the hand of corporations and the wealthy. Seen this way, Citizens United was an attempt by five justices to push future electoral outcomes in a direction that would entrench their approach to governance.
In fact, this decision should be seen as part of a larger initiative by moneyed conservatives to rig the electoral system against their opponents. How else to explain conservative legislation in state after state to obstruct access to the ballot by lower-income voters — particularly members of minority groups — though voter identification laws, shortened voting periods and restrictions on voter registration campaigns?
Conservatives are strengthening the hand of the rich at one end of the system and weakening the voting power of the poor at the other. As veteran journalist Elizabeth Drew noted in an important New York Review of Books article, “little attention is being paid to the fact that our system of electing a president is under siege.”
Those who doubt that Citizens United (combined with a comatose Federal Election Commission) has created a new political world with broader openings for corruption should consult reports last week by Nicholas Confessore and Michael Luo in the New York Times and by T.W. Farnam in The Washington Post. Both accounts show how American politics has become a bazaar for the very wealthy and for increasingly aggressive corporations. We might consider having candidates wear corporate logos. This would be more honest than pretending that tens of millions in cash will have no impact on how we will be governed.
In the short run, Congress should do all it can within the limits of Citizens United to contain the damage it is causing. In the long run, we have to hope that a future Supreme Court will overturn this monstrosity, remembering that the first words of our Constitution are “We the People,” not “We the Rich.”
PACs Americana: “Which Side Are You On?”
In retrospect, the transformation began the way most major changes in society begin: without anyone fully realizing what was taking place. Yes, when the Supreme Court handed down its 2010 Citizens United decision — allowing virtually unlimited spending by corporations and individuals to sway elections — there was a fair amount of outrage, mostly from the left. President Barack Obama, then in his first term, spoke out against what he called the corporate takeover of our democracy. But even those who imagined the threat posed by this unfettered influence could not have conceived of what would happen in the years that followed.
It started slowly. The so-called “super PACs” inserted themselves in congressional races. They ran a number of deeply misleading ads across the country. And they even took on roles traditionally associated with the political parties and candidates. But in those early days, the influence of these groups was limited: First, there were a lot of super PACs competing with campaigns and each other for donations and political talent. Second, they were prevented by law from coordinating with candidates.
But that all changed after the election in 2012.
Barack Obama’s narrow victory came after a brutal campaign in which the parties spent some $2 billion, yet were almost matched dollar for dollar by outside groups. The airwaves in swing states were saturated with a level of political vitriol not seen in this country since the days before the Civil War. The lack of coordination between PACs and candidates, however, meant that while people were inundated with ads, the messages were often competing and disjointed, forgotten as soon as the commercial break was over. Voters were angry, confused, frightened, and unmoved.
After the president’s reelection, a group of senior Republican operatives, joined by energy executives, Christian conservatives, and wealthy Republican donors, gathered to commiserate over the outcome of the race, and to plot the way forward. But the meeting quickly devolved into chaos. Karl Rove and representatives of Crossroads GPS, his super PAC, nearly came to blows with Mitt Romney’s campaign team — both sides slinging accusations as to who allowed the election to slip through their fingers.
Then a junior staffer, there only to take notes, stood up.
“This is the problem,” he said quietly.
Karl Rove, holding a folding chair over the prone and weeping form of Eric Fehrnstrom, paused. “What is it, son? Speak up.”
“This,” he said, taking a deep breath. “This is the first time any of us have been in the same room together.”
Grover Norquist, who took shelter behind a potted plant at the first sign of trouble, stood up and cleared his throat. “But we were barred by law, kid. Sure, the leaders of PACs can talk, but what use is it if we can’t coordinate with the campaigns?”
Karl unfolded the chair and sat down, his mind turning. “What if…” Karl squinted, shined an apple on his shirt, and took a bite. “What if there are no campaigns to coordinate with?”
Soon after, Crossroads GPS merged with the remnants of the pro-Romney “Restore our Future” super PAC, and absorbed other smaller organizations as well. With unlimited resources and few disclosure requirements, this new entity, TruePAC, had the funds to hire away talented staffers and operatives from the national party and campaigns. TruePAC enlisted polling firms, direct mail distributors, and other mainstays of traditional political operations. And Rove traveled the country delivering what became known as the PACs Americana Speech to convince bundlers and major donors to eschew traditional campaigns and parties to support his new organization.
His answer to a ban on coordination was to make coordination irrelevant. The PAC would be the campaign. The campaign would be the PAC. Because of the Supreme Court’s ruling, campaigns really only existed to meet filing deadlines and conduct paperwork; beyond this, the real difference between an official campaign and a political action committee was a bunch of onerous rules and restrictions.
And who needed those?
Democrats, slow to see the power of this new model, were overwhelmed by the onslaught that followed. Republicans took the White House and Congress in an election defined by TruePAC’s famous slogan, “ARGHHHHHHH,” which was shouted by children being pushed into a volcano. It was then that the last vestiges of the labor movement, Hollywood moguls like the chairman of NBC Hulu Universal, prominent trial lawyers, and wealthy liberal activists decided it was time to fight fire with fire. They created what became known as GoodPAC, which soon leveled the playing field.
In the coming years, GoodPAC and TruePAC waged a cold war, with candidates as their proxies, and advertisements as their arsenal. Campaigns became mere shells, with a skeleton staff on hand to secure signatures to gain ballot access and to file the requisite financial disclosures, which no one cared about anymore, because they were pretty much blank. Eventually, candidates stopped campaigning all together, fearing that any appearance would give TruePAC or GoodPAC more recent footage that could be used in their horrible, blood-curdling advertisements.
These tactics were of little use, however, as both PACs hired artists to ‘render’ versions of the other side in various animal and arachnid forms. Soon, people forgot which parties they originally favored, and came to identify with GoodPAC or TruePAC alone. After a while, the elections almost blended together. It was easy to think that GoodPAC had always been at war with TruePAC.
In time, supporters of GoodPAC and TruePAC grew more and more polarized, often refusing to live in the same parts of town. Campaigns were loud and garish affairs with long marches and slogans shouted in support of candidates rarely ever met or seen. The saddest part is, the elections themselves were usually decided by just a few votes, with the ballot counting extending for months or longer. Sometimes, you never even hear about who wins.
What’s strange is, I could swear that there have been times when the PACs have switched views to what the other PAC held in the last election. And there even are rumors that some companies support both PACs. It’s hard to know, because there are no disclosures. But I don’t understand how anyone could support both GoodPAC and TruePAC when they have such wildly different principles. Honestly, I’m not even sure if the members of TruePAC are people at all. They seem so awful, and lack the values that made this country strong. Are they rats? I think they may be giant rats.
At this point, I only know two things:
One, we have to do something — anything — to wrestle control of our government away from these powerful interests that distort our debate and limit our choices; that would scare us and divide us and deny us a voice in our political process, in our democracy.
And two, I hate with every fiber of my being the candidates backed by TruePAC, and I will do all that is in my power to help elect the decent, honest people who have earned the support of GoodPAC. So will you help us defeat the dragon-faced rat monsters who are out to destroy this country?
Which side are you on?
By: Jon Lovett, The Atlantic, February 2, 2012
Who Needs “Poor People”: Records Show How Wealthy Shape Presidential Race
Groups known as “Super PACs” raised more than $42 million to back Republican U.S. presidential contenders in 2011, according to campaign filings that show how new donation rules are allowing a relatively few wealthy Americans to shape the race.
The reports filed with the Federal Election Commission (FEC) late on Tuesday offer a vivid picture of the impact of a 2010 U.S. Supreme Court decision that allows unlimited donations to political action committees (PACs), groups that are legally separate from the candidates they support.
The reports showed why the Super PAC supporting Republican frontrunner Mitt Romney, called Restore Our Future, has been such a force in the campaign – largely by running attack ads against Newt Gingrich, Romney’s top Republican rival.
Restore Our Future hauled in $30 million in 2011, and had nearly $24 million in the bank at the end of the year.
The group spent a big chunk of that during the past month in Florida, where its ad barrage against Gingrich was widely credited with helping Romney to victory in Tuesday’s primary. Florida was the latest contest in the state-by-state battle to pick a Republican nominee to challenge Democratic President Barack Obama in the November 6 election.
The pro-Romney group’s bankroll dwarfed the PACs supporting other Republican contenders, as well as the group that backs Obama. Priorities USA, the pro-Obama group, raised $4.2 million last year and had $1.5 million in the bank on December 31.
The funding disparity between the groups suggests the PAC supporting Romney could help the former Massachusetts governor overcome the Obama campaign’s formidable fund-raising advantage if the two meet in November’s general election. Contributions to candidates’ campaigns are limited to $2,500 per donor.
Obama’s organization continued its dominance in the race for cash among candidates’ campaigns, raising $130 million for the year. That topped the Romney campaign’s $57 million, which led the Republican presidential field.
Tuesday’s filings also revealed the growing warchests that independent Republican groups are building with the presidential and congressional races in mind.
American Crossroads and its affiliated group, Crossroads GPS, raised a total of $51 million in 2011.
“A HUGE EFFECT ON THE RACE”
Super PACs were forged from the 2010 Supreme Court ruling that erased longstanding limits on corporate and union money in federal elections as an unconstitutional restriction of free speech.
The ruling unleashed a flood of money into a political system coming off the most expensive presidential election in U.S. history in 2008, when candidates spent more than $1 billion. It also opened the door for wealthy individuals to prop up candidates by writing a check.
“Super PACs have fundamentally changed the way campaigns are run, and it’s had a huge effect on the race,” former Michigan Republican Party chairman Saul Anuzis said. “If you can find one donor who is willing to play in a big way, it can have an unbelievable impact.”
For the first time, the FEC reports revealed many of the wealthy donors behind the Super PACs.
Harold Simmons, a billionaire Dallas banker and chairman of Contran Corp, gave American Crossroads $5 million and Gingrich’s group $500,000. Contran gave another $2 million to the Crossroads group.
Peter Thiel, billionaire co-founder of the payment service PayPal, gave the Super PAC backing Texas congressman Ron Paul $900,000. Foster Freiss, a billionaire investor from Wyoming, founded the Red, White and Blue Fund that backs former U.S. Senator Rick Santorum and donated $331,000.
The reports did not include the donations by billionaire casino owner Sheldon Adelson and his wife, Miriam, who poured a combined $10 million – $5 million each – into the pro-Gingrich group in January, after the period covered in Tuesday’s reports.
One of Adelson’s step-daughters gave Gingrich’s group $500,000 in 2011, and another gave $250,000, the reports showed.
The first check from the Adelsons came as Gingrich headed into a critical showdown with Romney in South Carolina. It helped pay for a movie and ads criticizing Romney’s work as head of the private equity firm Bain Capital – an issue that helped propel Gingrich to a big South Carolina upset victory.
By last weekend, the pro-Gingrich PAC had spent a total of $8.5 million – much of it, it appears, from the Adelson family.
‘SUPER-RICH PEOPLE’
“Super PACs are allowing a relative handful of super-rich people to have a disproportionate and magnified influence on elections,” said Fred Wertheimer, president of Democracy 21, a watchdog group dedicated to reducing the influence of money in politics.
Super PACs and other outside groups spent about $42 million on the presidential race through the end of January, according to independent expenditure reports filed with the FEC. Romney’s group has spend more than $17 million, compared with $8.5 million for Gingrich.
The filings also shed light on the scrambling by supporters of former House of Representatives speaker Gingrich in recent weeks.
Gingrich’s allies at Winning our Future raised just $2.1 million in 2011. But like Romney’s Super PAC, it raised and spent millions more in January. Much of that money went toward attack ads in South Carolina and Florida.
The flood of money drowned Gingrich in negative ads in Florida, where Romney’s Super PAC outspent Gingrich’s group by nearly 3-to-1 and aired ads questioning his conservative credentials, record in Congress and temperament as a leader.
Romney won Florida easily on Tuesday, beating Gingrich by about 15 percentage points to take a big step toward winning the Republican nomination.
“If you look at it in the simplest way, the role of the Super PACs has been to prop up candidates who in the past would have been forced out of the race because they ran out of resources,” said Anthony Corrado, a campaign finance specialist at Colby College in Maine.
The pro-Romney Super PAC fired back in Florida with a withering barrage of attacks on Gingrich as a Washington insider who peddled his influence to make $1.6 million from mortgage giant Freddie Mac.
Those attacks, and two strong debate performances by Romney, halted Gingrich’s momentum and fueled Romney’s runaway win in Florida on Tuesday.
SHADOWING THE CAMPAIGNS
The only restriction on Super PACs is that they are not allowed to coordinate their actions with the candidates they back. Romney has cited the restriction repeatedly when he has been asked to tell his Super PAC to pull down controversial ads.
In reality, however, most of the Super PACS are run by former staffers for the candidates who know what works for the campaigns without being told.
“I’ve known Newt for 12 years. I can dance with the campaign without coordinating with the campaign,” said Rick Tyler, a longtime Gingrich staff member who now runs the pro-Gingrich Winning Our Future group.
“I’m carefully watching what he’s saying in the public record,” he said. “It’s not hard for me to follow.”
Gingrich has been the target of more than $16 million in negative ads, while $5 million has been spent to hammer Romney, the FEC reports said.
The $57 million raised by the Romney campaign led the Republican candidates in the money chase in 2011. Gingrich raised nearly $13 million and Texas Governor Rick Perry, who has dropped out of the race, raised nearly $20 million.
By: John Whitesides, Reuters, February 1, 2012
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