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Campaign Finance Reform
By Mimi Murray Digby Marziani – 06/09/10
On Tuesday, the Supreme Court issued an order that can only be described as irresponsible. About two months from the primary election and five months from the general, the Court blocked the state of Arizona from providing its publicly-funded candidates with so-called trigger funds – additional public grants triggered by the high spending of nonparticipating opponents or hostile third parties. The Court, ruling on an emergency motion, offered no explanation with its three-sentence order. And, the Court breaks for the summer in two weeks, so there is virtually no chance that this case will be decided on its merits until fall. By that time, of course, it will be too late for many of Arizona’s candidates, who – in some cases – will have to wage hyper-competitive electoral contests on one-third of the funding they originally anticipated.
In the aftermath, some are proclaiming the end of public funding programs writ large. The New York Times, for example, has sounded a death knell, predicting that “state finance programs [will] be the [C]ourt’s next conquest.” This story of demise is, however, greatly exaggerated.
Clearly, there is good reason to condemn the Court’s actions. But to decry the death of public financing is simply alarmist – and inaccurate. In fact, public funding of elections remains the constitutionally optimal way to curb political corruption. As the Supreme Court explained long ago in its famous Buckley v. Valeo decision, providing public money to finance campaigns “facilitate[s] and enlarge[s] public discussion and participation” and thus “furthers, not abridges, pertinent First Amendment values.”
The Court’s recent order has no bearing on these general principles. The Arizona case centers on one aspect of the state’s public funding system – the trigger funds. Challengers argue that the prospect of triggering additional monies for their political foes chills them from speaking. A unanimous Ninth Circuit refused to buy this novel claim of First Amendment injury, reaffirming that “the First Amendment includes no right to speak free from response.” The Court of Appeals also found that there is no evidence of chill, i.e., no sign that the plaintiffs would spend right up to the triggering threshold but no more. In this context, it was – to say the least – a surprising act of judicial activism for the Court to suddenly throw a wrench into Arizona’s decade-old public funding program. Now, we simply have to wait and see how the Supreme Court ultimately rules.
In the meanwhile, we can rest assured that the numerous public financing systems without trigger provisions sit on firm legal ground. For example, the Fair Elections Now Act (“Fair Elections”) – legislation that would provide congressional candidates with public funding – is certainly constitutionally sound. Under Fair Elections, qualified candidates would receive an initial lump-sum grant, plus a four-to-one match of individual contributions up to $100. This scheme rewards a participating candidate for fundraising from a broad base of small donors while avoiding the legal questions raised when additional grants are triggered by nonparticipants’ spending.
Whatever the case’s final outcome, the Court’s hasty action demonstrated its willingness to embrace a First Amendment “right” of high-spending interests to pour money into campaigns. Robust public financing systems, such as Fair Elections, are needed to ensure that the voices of ordinary citizens are not rendered irrelevant. Now, more than ever, we must embrace public funding as the “more speech” solution to the problems wrought by big money in politics.
Tags: Democracy, Campaign Finance Reform, Public Financing
By Sidney Rosdeitcher – 05/27/10
The Supreme Court nomination process is upon us and once again the phrase “judicial activist” is the legend emblazoned on the conservative activists’ banner as they go into battle against one of President Obama’s nominees.
Even prominent conservative jurists and scholars have emphasized that the term is simply used by conservatives or liberals to denounce decisions they do not like or is merely a “synonym for bad decisions.” ( Frank Easterbrook, Do Liberals and Conservatives Differ in Judicial Activism, 73 U. of Colo L. Rev. 1401, 1402 (2002);Charlie Savage, Uncertain Evidence for Activist Label on Sotomayor, N.Y. Times, June 20, 2009, at A10, quoting conservative scholar Professor Richard Epstein.) But this has not discouraged conservatives like Senator Jeff Sessions, ranking Republican member of the Senate Judiciary Committee.
A few days before President Obama announced his nomination of Solicitor General Elena Kagan to the Supreme Court, Senator Sessions published an op ed in the Washington Post entitled “The Founders’ High Court”(Washington Post, May 7, 2010, A25). Anticipating the President’s imminent announcement of his nominee, Senator Sessions asked whether President Obama would choose “someone who is committed to the text of the Constitution and the vision of the Founding Fathers, or whether his nominee is an activist who will shed a judge’s neutral, constitutional role to push a progressive policy agenda.” As one would suspect this was a purely rhetorical question, with a foregone answer for Senator Sessions. Focusing on one of the President’s several criteria for a nominee—“a keen understanding of how the law affects the daily lives of the American people”-- Senator Sessions maintained that this was a formula for appointing activist Justices. Senator Sessions claimed that, instead, the “American people are looking for judges in the mold of Chief Justice Roberts, not Justice John Paul Stevens....[J]udges who will stay true to our Founders’ vision instead of imposing their own, who recognize the limits on government power; who restrain themselves to the text of the Constitution; and who will defend the rights of all citizens without bias....”
To prove that conservative jurists like Chief Justice Roberts fit that mold, while progressive jurists like Justice Stevens were “activists” who did not, Senator Sessions contrasted these justices’ positions in three recent cases: Citizens United, applying the First Amendment to invalidate Congress’ restrictions on corporate spending in election campaigns; Heller, finding a Second Amendment right to bear arms to strike down the District of Columbia’s gun control ordinance; and Kelo, finding that New London’s use of eminent domain to enlist private developers and businesses in its urban renewal efforts was a public purpose and not a violation of the “takings” clause.
These cases indeed show sharp contrasts, but not those that Senator Sessions draws. They also show how slippery the term “activist” is and how those who live by that term can be humbled by it.
Let us begin with Citizens United. Senator Sessions says the decision is “grounded in the plain words of the First amendment: ‘Congress shall make no law...abridging the freedom of speech.’” But our long First Amendment jurisprudence makes it clear that these words have anything but a “plain meaning” -- consider, for example, the tortuous path of criminal advocacy or obscenity laws or restrictions on student speech that literally abridge speech. In any event, it is hardly “plain” that the First Amendment’s words were meant by the Founders to protect rights of corporations -- artificial creatures of state law -- to spend vast sums of other people’s money to drown out the views of individual American citizens. The Founders could not have dreamed of the role of money in current election campaigns where corporate wealth monopolizes the market place of ideas. Had they done so, given their solicitude for the individual, it is most likely they would have concluded that Congress’ restrictions on corporate campaign financing foster speech, not “abridge” it.
To reach a contrary result, the Chief Justice and the other conservative justices overturned two precedents, disregarded more than a century of Supreme Court jurisprudence recognizing the need to regulate corporate election spending, overrode Congress’ greater competence to assess the impact of corporate money on election speech and reached a constitutional issue that the parties themselves did not require them to address. Further, while Senator Sessions considers “absurd” the assertions that the decision reflects a bias for big business, the conservative majority did not limit its ruling to small businesses or nonprofits or to the limited facts presented by this case, as urged by Justice Stevens’ dissent. Instead they struck down Congress’ law on its face, so that its principal beneficiaries are the biggest corporations with the most money to spend.
The second illustrative case offered by Senator Sessions, Heller, teaches similar lessons. To create an individual right to bear arms, Justice Scalia's majority opinion simply nullified the Second Amendment’s opening clause: “A well regulated militia being necessary to the security of a free state...” Moreover, while Justice Scalia purported to find the “original meaning” of the Amendment based on his reading of history, as the eminent conservative jurist and scholar Judge Richard Posner explains Justice Scalia selectively and misleadingly used that history to incorrectly derive an “original meaning” which was more accurately reflected in Justice Stevens’ dissent. (Richard A. Posner, In Defense of Looseness, The New Republic, 8/27/08, at 35; see also the same charge against Justice Scalia made by another conservative jurist, Judge Harvie Wilkinson III, in Of Guns, Abortions and the Unraveling of the Rule of Law, 95 Va.L.Rev. 253, 256-57 (2009)) The result of this decision will allow federal courts to dictate not only what the District of Columbia but--as seems likely from the oral argument in the pending Chicago gun law case -- all state and local governments can do to protect Americans from the devastating gun violence in their communities. And while Senator Sessions boasts that the decision protects the rights of individual gun owners, it threatens the safety of many more Americans.
As for Kelo, Justice Stevens’ majority opinion merely recognizes that the Constitution does not impose a straight jacket on how cities can address their needs for urban renewal, leaving it to state and local democratic processes to decide on the limits. And many have since taken up that invitation.
In each of these cases, “progressive” justices left it to the democratic process to allow American citizens through their elected representatives to decide how to address vital issues affecting their lives, where the Court was not required to impose its views by text, history, precedent, or the issues presented by the parties, or by any need to protect the rights of vulnerable minorities lacking access to the political process. In these cases, as in others, it was “conservative” Justices who interfered with the democratic process to impose their conservative ideologies by twisting constitutional text and history, disregarding precedent, overriding the will of the people acting through their elected representatives, reaching out for issues it need not have decided--and yes, lacking any concern for the impact of their readings on the lives of the vast majority of the American people.
So, Senator Sessions, who are the “activist” judges?
Tags: Democracy, Campaign Finance Reform
By Monica Youn – 05/26/10
The phrase "First Amendment thought police" may seem a contradiction in terms, but that didn't stop Sen. Mitch McConnell last week from fulminating on the Senate floor against then-Solicitor General Elena Kagan's defense of the McCain-Feingold campaign finance law in the Citizens United case earlier this year. McConnell questions Kagan's suitability for the Court based on her arguments defending the constitutionality of the statute - which, after all, a majority of the Supreme Court had upheld as recently as 2003, and which four justices of the Supreme Court voted to uphold again in Citizens United.
McConnell twists the government's position, pretending that Citizens United was about the government's ability to ban movies, books, pamphlets "just because it doesn't like the speaker and doesn't like the speech." This fantasy of censorship has no relation to reality - Citizens United wasn't about who or what the government "liked" or didn't like - it was instead about what bank account could be used to pay for a campaign communication. Specifically, the question at issue in Citizens United was whether Congress could require a corporation to pay for electioneering communications through a segregated fund - or PAC - rather than from its general treasury fund. The video at issue in Citizens United - a 90 minute attack ad against Hillary Clinton - would not have fallen under the FEC's regulatory authority had it been funded by an individual citizen, a group of citizens. Only because some of the money for the video came from a business corporation did the ad become subject to regulation.
But it's better press to talk about book bans than bank accounts. In McConnell's skewed view, any regulation is tantamount to a ban, any steps taken to keep people - rather than corporations -at the center of our politics are equivalent to censorship. This is the same slippery-slope anti-government rhetoric that equates taxation with slavery.
But underlying McConnell's predictable - if depressing - rhetoric is a seed that has been germinating for the past 30 years but only reached fruition with Citizens United - the equation of money and speech. In the 1976 case Buckley v. Valeo, the Buckley Court infamously held campaign expenditure ceilings unconstitutional, reasoning that restricting campaign spending reduces the "quantity" of speech that can be disseminated. But the Buckley Court stopped short of fully equating money with speech, as did subsequent courts over the next 30-plus years. As former Chief Justice William Rehnquist once wrote, to treat corporate spending as the First Amendment equivalent of the speech of individuals is "to confuse metaphor with reality."
But in Citizens United, the Court treated speech as the simple equivalent of money, full stop. Justice Kennedy's decision was replete with sweeping truisms about the centrality of free speech to self-governing democracy. Never did Kennedy's opinion admit that these truisms might apply differently - or not at all - when the regulation of spending, rather than speech, is at stake.
But if speech is equated with money, in constitutional terms, then all kinds of regulations become "constitutionalized" in First Amendment terms. If speech is money, then does the business judgment rule - which requires corporate spending to advance the best interests of the corporation - become a First Amendment problem? Do quarterly SEC filings represent "compelled speech"?
As Prof. Deborah Hellman recently argued at the Brennan Center's symposium, "Money, Politics & the Constitution: Building a New Jurisprudence," the fact that money may facilitate the exercise of a constitutional right does not mean one has the constitutional right to spend money to exercise that right. The right to vote does not mean that one has the right to buy or sell a vote. The right to have sex does not entail the right to buy sex. In some contexts, spending money may have some expressive value - for example, giving $10 to "Fight the Smears." But other forms of expressive conduct are commonly regulated, as Justice Stevens often pointed out.
Constitutional challenges - not only to campaign finance laws, but to health care reform, the financial overhaul, and other governmental initiatives - are filed each day by opponents of federal regulation. In such a climate, the Court's apparent susceptibility to the bumper-sticker simplification "Money = Speech" poses a threat to our democratic system. Hopefully, Justice Stevens' successor can aid in stopping, or even reversing, our slide down this disastrous slope.
Tags: Democracy, Campaign Finance Reform
By Ciara Torres-Spelliscy – 05/12/10
At yesterday’s Congressional hearing on the DISCLOSE Act, one of the Republican witnesses, William McGinley, testified that "the broad reach of the new definitions of independent expenditure... now appear to regulate Internet communication, including the liberal and conservative blogosphere." The Center for Competitive Politics repeated this line today on its website.
This is a blatant attempt to kick sand in the eyes of lawmakers. The truth is, the DISCLOSE Act does expand the definition of independent expenditures subject to disclosure, but it does so using the Supreme Court’s own language. This will not put the FEC in the role of regulating bloggers.
At present, the law says "independent expenditure",
which means an expenditure by a person -
(A) expressly advocating the election or defeat of a clearly identified candidate; and
(B) that is not made in concert or cooperation with or at the request or suggestion of such candidate, the candidate's authorized political committee, or their agents, or a political party committee or its agents.
The DISCLOSE Act would expand paragraph A of the independent expenditures definition to state:
(A) that, when taken as a whole, expressly advocates the election or defeat of a clearly identified candidate, or is the functional equivalent of express advocacy because it can be interpreted by a reasonable person only as advocating the election or defeat of a candidate, taking into account whether the communication involved mentions a candidacy, a political party, or a challenger to a candidate, or takes a position a candidate’s character, qualifications, or fitness for office; and’’.
The new language comes directly from Wisconsin Right to Life II and Citizens United, where the Supreme Court clarified that express advocacy or its functional equivalent could be constitutionally regulated.
What does this have to do with blogging? Not much. The Federal Election Commission clarified four years ago that it would not be in the business of regulating the Internet. On March 27, 2006, the FEC unanimously approved its Internet Rulemaking. The Internet Rules allow individuals making political speech on the Internet the freedom to do so without registering with or reporting to the FEC. The exceptions to this general rule are political committees and candidates, who are still regulated whether on-line or off-line, and anyone who pays to place a political advertisement on another person’s webpage is subject to regulation.
In other words, even through the DISCLOSE Act expands what is covered by the term “independent expenditures” to include ads that take a position on a candidate’s fitness for office, the FEC is most likely to stand by the 2006 Internet rules and only reach PAID political banner ads; not bloggers.
You can also read our testimony submitted to the same hearing, here.
Tags: Democracy, Campaign Finance Reform, Disclosure
By Mimi Murray Digby Marziani – 05/10/10
During this year's State of the Union address, President Barack Obama and Justice Samuel Alito Jr. had a memorably public disagreement over the case of Citizens United v. FEC. "With all due deference to separation of powers," the president said, "the Supreme Court reversed a century of law that I believe will open the floodgates for special interests...to spend without limit in our elections." "Not true," mouthed Alito from his front-row seat, shaking his head vigorously to ward off the thunderous applause following Obama's remarks. Ignoring Alito's unorthodox reaction (traditionally, the justices sit stone-faced throughout the address), Obama urged Congress to save America's democracy from commercialization.
On April 29, Sen. Charles Schumer (D-NY) and Rep. Chris Van Hollen (D-MD) heeded the president's cry by introducing legislation designed to curb corporate influence in federal elections. There are many things to like about the Democracy Is Strengthened by Casting Light On Spending in Elections Act (DISCLOSE Act). Most importantly, the act would enhance current disclosure and disclaimer requirements, forcing corporations to electioneer in the plain view of voters. Also key is a provision requiring corporations to disclose all political spending to their shareholders, thereby ensuring that a business's equitable owners know how their money is being spent.
The DISCLOSE Act is a necessary first response to the problems wrought by unbridled money in politics, and its sponsors should be applauded. By itself, however, it cannot remedy our democracy's deeper malfunctions.
Here's why: The skyrocketing costs of political campaigns drive candidates to seek the support — either direct or indirect — of big-money backers. Once these candidates are elected, they feel grateful, perhaps even indebted, to those who donated substantial dollars. And big bucks connected to corporate interests have flowed freely for years, even before Citizens United, via corporate political committees, employee contributions and lobbyists.
Consider Citigroup Inc. As shown by OpenSecrets.org, the investment bank contributes millions of dollars to federal candidates of both parties each election cycle. In 2008 alone, it gave almost $4.9 million. On top of that, the bank then spent more than $5.5 million lobbying Congress in 2009. Is it any wonder that Citi is routinely hailed as one of the most influential players inside the Washington beltway?
Tags: Democracy, Campaign Finance Reform, Disclosure
By Ciara Torres-Spelliscy – 04/30/10
originally posted at The Hill.
The Supreme Court did tremendous damage in the Citizens United case by awarding corporations the same First Amendment rights as people. But the one silver lining in an otherwise abhorrent decision was its support for disclosure.
After Citizens United, we can expect more corporate money in politics but the question is how transparent will this new spending be? Will this new corporate money be done through impenetrable black boxes?
Senator Schumer and Congressman Van Hollen have just introduced an omnibus bill to address the multiple problems that Citizens United has unleashed called Democracy Is Strengthened by Casting Light On Spending in Elections Act (the “DISCLOSE Act”). This Act will address political spending by foreign-owned corporations, the use of tax dollars by TARP recipients in politics and conflicts of interest presented by political spending by government contractors.
The Supreme Court in Citizens United, like the McConnell case from 7 years before, held that full disclosure of who funds political ads is perfectly constitutional. Indeed in both cases, disclosure and disclaimers for political ads were upheld eight to one, with Justice Thomas as the lone dissenter. But this endorsement by the high court of disclosure hasn’t stopped groups from hiding behind all sorts of artifices to conceal the true source of money in politics....
read the rest at The Hill.
Tags: Democracy, Campaign Finance Reform, Disclosure
By Mimi Murray Digby Marziani – 04/29/10
Attorney James Bopp is on a crusade – in his words, a “10 year plan” – to annihilate every American law regulating money in politics. And, over the years, he’s had some success. In the case of Randall v. Sorrell, for instance, he successfully argued that campaign contribution limits can be so low that they violate candidates’ political rights. Recently, Bopp enjoyed his most significant win yet when a bare majority of the Court struck down longstanding limits on corporate political spending in Citizens United v. FEC.
Now, Bopp has moved to his next battleground: disclosure. In Bopp’s view, any type of compelled disclosure – such as laws requiring that funders of political attack ads reveal their identity – violates core speech rights. Bopp advocates a never-before-recognized “First Amendment right to privacy” that would invalidate scores of laws geared to promote transparency and openness in the political process.
Yesterday, in the case of Doe v. Reed, Bopp presented his vision of the First Amendment to the Supreme Court, arguing that signers of a Washington state ballot initiative petition should be exempt from a general law that makes such signatures public. There, Bopp met a formidable opponent: Justice Antonin Scalia.
Cutting Bopp off in the middle of his opening statement, Justice Scalia started grilling Bopp about the implications of recognizing a broad right to anonymous political activity just so that individuals can avoid public criticism: “What about requiring disclosure of campaign contributions? . . . Why doesn’t that fall within your principle that no person should be exposed to criticism? . . . You are asking us to enter into a whole new field where we have never gone before.”
As Scalia’s questioning highlighted, allowing broad exceptions to generally-applicable disclosure laws would cripple the public’s ability to engage in the type of uninhibited, robust, and wide-open political debate our country has cherished since its founding. This is particularly troubling in the campaign finance context – undoubtedly, voters have a compelling interest in knowing who is funding candidates and ballot initiatives so that they can make educated choices at the polls. As Scalia put it, “you can't run a democracy this way, with everybody being afraid of having his political positions known.”
It remains to be seen how the Supreme Court will resolve the Doe v. Reed case. The oral argument made clear, however, that Bopp’s fight against disclosure will not be an easy win. Indeed, after the first round, the score is undisputed: Scalia 1, Bopp 0.
Tags: Democracy, Campaign Finance Reform, Disclosure
By ReformNY – 04/19/10
Last week, New York State Sen. Daniel Squadron, D-Brooklyn/Manhattan, and Assemblyman Rory Lancman, D-Queens, proposed a bill which would require shareholder approval before a New York corporation could spend in politics. The bill also requires more transparency by mandating that companies tell shareholders of their past political spending. The new bill mirrors language proposed by the Brennan Center’s Ciara Torres-Spelliscy in her report, “Corporate Campaign Spending: Giving Shareholders A Voice” which encourages Congress to make similar changes at the federal level. Congress has a similar bill called the Shareholder Protection Act (H.R. 4790). If Congress fails to act, shareholders will need protections from state laws like this New York State bill. The Senate will be holding hearings on this and other election reform bills this week.
Originally posted at ReformNY.
Tags: Democracy, Campaign Finance Reform, Other Reforms, NY Reform
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