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Democracy
By Kelly Williams – 12/09/11
Crossposted at ReformNY.
When New York State’s new ethics law was announced in June of 2011, editorial boards and citizens responded in typical New York fashion — some with praise, others with the proverbial “Bronx cheer.” The law is both a product of many political compromises and, at the same time, a vast improvement over the ineffective self-policing system of legislative ethics enforcement that existed before, so timely and orderly implementation of the new joint commission on public ethics will send an important message to New Yorkers.
The law requires that the new ethics watchdog be fully operational on December 12, just 120 days after enactment. This means that by next week, 14 new commissioners must have been appointed by legislative leaders and the executive branch, who in turn will have hired an executive director approved by a bipartisan majority of the new commission. The law requires that the new commission also approve a staffing plan for the day-to-day work, adopt rules and regulations to govern its procedures, make forms available, review financial disclosure statements, continue investigations that were suspended earlier this year and begin receiving and investigating complaints and referrals.
It is an ambitious mandate and we hope legislative leadership and the executive will ensure the new commission has everything it needs to roll up its sleeves and get to work.
From the archives:
We thought it worthwhile to reprint our reasons for supporting the new joint commission on public ethics:
- For the first time ever, we will have an ethics overseer that includes both gubernatorial and legislative appointees, and excludes the persons being policed.
- New commissioners will serve fixed five-year terms, and may only be removed for cause: we hope that this degree of independence, coupled with a broader mandate and penalties for leaks about proceedings, will enable people to have thoughtful deliberations and vote their conscious.
- Officials will be required to provide unredacted financial information including sources and amounts of income, including the identity of clients for whom they perform state business, even clients of a law practice. And this information will be available, in its entirety, to the public.
- A new database will identify all firms representing everyone with state business, and since officials must disclose their business partners on their financial disclosure forms, the public will be able to also evaluate these relationships.
- Lobbyists now will be required to disclose their business relationships, if any, with public officials.
- A review commission will look at the efficacy of this in 2015, after it has been up and running.
Criticism has been aimed at the make up of the commission: the legislative leaders appoint 8 of 14 commissioners and the Governor appoints the other six. Appointments are party based and will exclude minority parties. In order for an investigation to proceed, the votes of two of the target’s appointees are required in some circumstances. There is a danger that such a large commission will be unwieldy and that the provisions requiring affirmative votes could be exercised like vetoes, as per the commissioner’s appointer, not her conscious.
Tags: Democracy, NY Reform
By ReformNY – 12/09/11
Crossposted at ReformNY.
Every Friday, the Brennan Center will be compiling the latest news concerning the corrosive nature of money in New York State politics — and the ongoing need for public financing and robust campaign finance reform. We’ll also be linking to dispatches from around the country highlighting the national scope of this crisis. This week’s links were contributed by Matthew Ladd.
For more stories on an ongoing basis, follow the Twitter hashtag #moNeYpolitics
NY Campaign Finance
1. Joan Mandle’s Sunday Op-Ed in the Syracuse Post-Standard issued a clarion call for voluntary public financing of elections in New York state. Drawing on recent visits to New York college campuses, Mandle observed that frustration with the political system is a direct result of the massive influx of corporate money in legislative campaigns, and encouraged Gov. Cuomo to return to his earlier outspoken support for a voluntary public financing system. “We believe in democracy,” Mandle wrote. “It’s time for our elected officials to prove that they do, too.”
2. The Times-Union also called for Gov. Cuomo to move forward with his campaign promise to prioritize public financing, pointing out that independent expenditure loopholes allowed a coalition of labor unions to pour $400,000 into the coffers of a challenger for Erie County executive during the final six weeks of the race. A state public funding remedy would guarantee that even “a candidate being overwhelmed by special-interest money... would be assured of funds by way of a constituency without a clear agenda.”
3. Trustees at Manhattan’s Intrepid Sea, Air and Space Museum encouraged other board members to contribute to Gov. Cuomo’s re-election campaign by attending a birthday fundraiser at the Intrepid, raising questions about when directors of a nonprofit organization may engage in political activity without risking their tax-exempt status. Although the email was sent from a trustee’s museum email address, a museum spokesman characterized the email as a “personal appeal,” implying that the sender — a co-chair of the Intrepid’s charitable foundation — did not send it in his capacity as trustee.
NY Corruption and Politics
4. William Boyland’s bribery scandal continues to make headlines, as his chief of staff, Ry-Ann Hermon, was charged this week with taking bribes from the same federal officers who recorded Boyland’s bribery solicitations. The arrest comes on the heels of Boyland’s latest charges, which include evidence that he took a $3,800 bribe from a federal agent at a Brooklyn fundraiser while claiming travel and lodging expenses as if he were in Albany on state business. The ongoing scandal has moved Republican State Sen. Steve McLaughlin to call for Boyland’s resignation.
5. Four associates of Queens State Sen. Shirley Huntley, including one of her aides, have been charged with misappropriating $30,000 in public funds that was earmarked for Parent Workshop, a nonprofit ostensibly created to help parents navigate the New York City school system. The indictments are the latest — and most high-profile — results of this year’s joint effort between attorney general Eric Schneiderman and city comptroller Thomas DiNapoli to target public corruption. Subpoenas, including one for Huntley’s daughter, were issued in March, but the state did not file charges until this week.
Campaign Finance and Politics Nationwide
6. The world’s largest ethanol producer is also a major contributor to New Gingrich’s presidential campaign, according to a study released by the Center for Responsive Politics. Individual donors from the corporation include CEO Jeff Broin, who also chairs Growth Energy, an ethanol lobbying organization that hired Gingrich as a consultant two years ago.
Tags: Democracy, Campaign Finance Reform, NY Reform
By Yanick Saila-Ngita – 12/08/11
I can clearly recall the image sprawled across the cover of my local newspaper back in 2005: a photograph of a group of Iraqi women, dressed in niqabs, proudly waving their purple inked thumbs shortly after casting their ballots in the first election following the fall of the Hussein regime. Seventy-five percent of eligible voters cast their ballots. This momentous occasion came on the heels of a presidential election convened in Afghanistan. American politicians who had supported the invasion and subsequent wars viewed this as an example of the United States transporting its values of freedom and democracy across the globe. But one must ask if these values are truly being protected and promoted within our own borders.
We often talk about voter suppression laws, as running afoul of the basic American right to vote. However, these measures also contradict our obligations as a country under international agreements. Felon disenfranchisement laws, limits on early voting—especially Sunday voting—and voter ID laws disproportionately affect minorities. This exacerbates our failure to uphold a UN convention to eliminate racial discrimination, adding yet another reason to reject these suppressive measures.
This year we have seen states impose strict voter ID laws under the guise of ensuring that the voting process is secure. These laws disproportionately impact the right to vote for communities of color, as the Brennan Center has documented. The United States is a signatory to the Convention on the Elimination of All Forms of Racial Discrimination, which requires nations, including our own, to "pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms.” In 2001, the United Nations Committee on the Elimination of Racial Discrimination called into question the “political disenfranchisement of a large segment of the ethnic minority population [in the United States] who are denied the right to vote by disenfranchising laws and practices.” They urged the United States to take necessary steps to ensure that all of its citizens are able to access the vote without any form of discrimination.
We are moving backwards from this goal. Currently, numerous state laws prohibit inmates and the formerly incarcerated from participating in the vote. The result? 8 percent of African Americans are disenfranchised, three times the national average. Allowing these individuals to vote would be one way to decrease disparity and comply with human rights law.
Photo ID requirements to vote disproportionately impact minority citizens who, for a variety of potential reasons, are more likely to lack required identification documents. The NAACP is presenting evidence of these suppressive measures this week to the UN High Commissioner on Human Rights. In March, the organization will send a delegation to Geneva to gather support from the UN Human Rights Council.
Even though many of our nation’s political leaders point to the United States as a superior model of participatory democracy, other countries far outmatch the U.S. in eliminating discriminatory voting practices. The Constitutional Court of South Africa has struck down measures that disenfranchise prisoners, remarking, “The vote of each and every citizen is a badge of dignity and of personhood.”
The same cannot be said for judges here in the U.S., and the Brennan Center estimates that more than 5 million Americans are ineligible to vote due to a criminal conviction. Only two states allow prisoners to vote. However, in the case of Sauvé v. Canada, the Supreme Court of Canada ruled that laws that sought to eliminate prisoners’ ability to vote failed to further any reasonable state aim.
The U.S. must take bigger steps to comply with the obligations it has agreed to and promoted internationally by enacting measures that improve minority access to the ballot box. There exists a troubling contradiction when so many of our resources continue to be invested in making sure people abroad are able to vote and our own citizens find it difficult to do so in their own neighborhoods. As Congressman Emanuel Cleaver passionately expressed in a recent House hearing on voter suppression laws, “we're trying to get folks around the world to vote and stopping it at home."
Tags: Democracy, Voting After Criminal Conviction, Post-Incarceration Restoration of Voting Rights, Voting Rights & Elections, Voter ID
By John Travis – 12/07/11
Cross-posted at Reform NY.
The Brennan Center released a report this week detailing the tens of thousands of votes that were lost in New York because voting machines read their choices as “overvotes” – the invalid selections of more than the allowable number of candidates. Instead of returning the ballot, as is done in many other jurisdictions, the ballots were retained and the machine displayed a screen message using complex election jargon that gave voters misleading cues about their options. In the 2010 election, this confusing message led to as many as 20,000 lost votes in the governor’s contest alone and as many as 60,000 lost votes across all contests. The New York Times, Daily News, WNYC, and Politico have all done a great job covering the story.
The Brennan Center and others warned state election officialsabout the potential problems that would arise due to this confusing message. Represented by the Brennan Center, the NAACP New York State Conference, the National Coalition on Black Civic Participation, Families United for Racial and Economic Equality, and several individual plaintiffs filed a lawsuit against the New York State and New York City Boards of Elections in June of 2010 over the discriminatory impact on minority voters.
Our new study confirms that people of color were disproportionately likely to lose their vote. One percent of black and Hispanic voters in New York City did not have their votes for governor counted. In two predominantly Hispanic election districts in the South Bronx, nearly 40% of all votes were not counted in 2010; despite our repeated requests for an investigation into the overvotes in the South Bronx, we are not aware that one has been conducted. Our report also details problems with ballot design, finding that voters were more likely to cast an overvote in a race where candidates for the same office were displayed across two rows of the ballot (such as in the governor’s contest and in Sen. Kirsten Gillibrand’s U.S. Senate contest).We estimate that if no revisions are made to the overvote message, over 100,000 votes in New York could be lost in the 2012 election, when turnout will be much higher.
Fortunately, as detailed in the report, the State Board of Elections has agreed to adopt a better overvote warning in time for the 2012 election. But more steps can and should be taken to prevent lost votes. Election officials should make election results available by precinct; those results should report the number of overvotes in each contest on the ballot. When problems are discovered, election officials should be empowered required to investigate the reasons for high overvote rates. Ballots should be treated as public records to allow members of the public and voting experts to determine if ballots were in fact overvoted or simply recorded as overvotes because of a machine error. And states should reexamine their ballot design requirements and provide election administration officials with the guidance and flexibility they need to create voter-friendly ballots.
The recommendations are not specific to New York and can serve as models for jurisdictions across the nation to ensure that votes are counted as they were intended to be cast. The new report is available through the Brennan Center’s website.
Tags: Democracy, NY Reform, Voting Rights & Elections, Ballot & Election Material Design, Voting Technology
By ReformNY – 12/02/11
Crossposted at ReformNY.
Every Friday, the Brennan Center will be compiling the latest news concerning the corrosive nature of money in New York State politics — and the ongoing need for public financing and robust campaign finance reform. We’ll also be linking to dispatches from around the country highlighting the national scope of this crisis. This week’s links were contributed by Matthew Ladd and Dan Rockoff.
For more stories on an ongoing basis, follow the Twitter hashtag #moNeYpolitics
NY Campaign Finance, Corruption and Politics:
1. The Buffalo News has issued an editorial calling for the state Senate and Assembly to work together to enact public financing of state elections in the next legislative session. Public financing would not only “help our state legislators clean up their collective act and limit the corrosive influence of money on their decisions,” the editorial argues, but would also “give challengers better footing to take on incumbents” and, combined with nonpartisan redistricting, make elections fairer and more competitive.
2. The $33,000 that Syracuse Mayor Stephanie Miner funneled to local candidates through the state Democratic Committee is “further evidence of a campaign finance system in disarray,” writes the Syracuse Post-Standard. Although Miner withdrew the contributions in the face of public criticism, steering money from PACs to campaign committees is business as usual in Albany. “It’s done all the time to get around the very lax campaign finance limits and nonexistent campaign laws in New York state,” says Barbara Bartoletti of the state League of Women Voters. “It’s not going to change until we reform the campaign finance laws.”
3. Fresh from his acquittal on corruption charges, Brooklyn State Assemblyman William Boyland Jr. has been arrested again — this time for soliciting bribes during his trial, apparently in order to pay the attorneys who represented him. Boyland is now charged with soliciting over $250,000 in bribes since he was charged in the first case; last April, mere weeks after he was released on bond, FBI agents posing as real estate investors recorded Boyland seeking money to pay his lawyers, but insisting that he needed to “stay clean” by working through a “bag man.”
4. One of the state’s key witnesses in the corruption trial of Larry Seabrook has given inconsistent accounts of her connection with the ex-assemblyman, inconsistencies that the prosecution attributes to age and memory loss. Another witness for the prosecution, Laila Yu, testified on Tuesday that three nonprofit groups connected to Seabrook received $2.1 million in city funds, in addition to overbilling the city for rent reimbursements.
5. Companies that drill for natural gas have contributed hundreds of thousands of dollars to state legislative campaigns, and spent over $3.2 million in lobbying, in the run-up to Gov. Cuomo’s decision on when and where to permit hydraulic fracturing (“fracking”) in New York State. The energy industry has also contributed to campaigns in Texas, Pennsylvania and Ohio in order to elect fracking-friendly legislators. In response to public debate over the issue, the NY Department of Energy has extended its public comment period to January 11, 2012.
National stories:
6. The New York Times criticized House Republicans for their attempt to repeal the voluntary public funding program for presidential candidates, created in the wake of the Watergate scandal. The editorial points out that the justification for attempting to repeal the program — deficit savings — is especially cynical given that the Republican Party recently requested, and received, $17.7 million in public money to finance next year’s presidential convention.
Tags: Democracy, Campaign Finance Reform, Public Financing, NY Reform
By Monica Youn – 11/29/11
Crossposted at ACSblog.
That the conservative majority of the Roberts Court are champions of free speech is a trope that simply refuses to die. The New York Times summed up the Court’s most recent term by describing free speech as a “signature project” of Chief Justice Roberts, and numerous commentators have chimed in, contributing to the common misperception that the Roberts Court is “the most free speech Court in American history.” Efforts to debunk this myth, by Erwin Chemerinsky, David Cole, and Nadine Strossen, among others, have seemingly failed to make much of a dent in the popular wisdom.
Ben Sachs’ forthcoming Columbia Law Review article, “Unions, Corporations, and Political Opt-Out Rights after Citizens United,” serves as a useful corrective, and, indeed, is one of the absolutely essential pieces of scholarship that I’ve seen in the wake of the decision. But before getting into the article in more depth, let’s look at some basic numbers for background.
In its first five years, from 2006 until 2011, the Roberts Court granted certiorari in 27 cases in which a free speech violation was claimed (including the speech, press, assembly, and association guarantees). In these cases, the Court held that that a free speech violation existed in nine of the cases, and that no free speech violation had been demonstrated in 18 of these cases. Thus, simply looking at the numbers, the Roberts Court has supported a free speech claim in 33.33 percent of argued cases. By way of comparison, as Lee Epstein and Jeffrey A. Segal have shown, from 1953 to 2004, the Supreme Court supported claims of deprivation of First Amendment liberties in 53.95 percent of argued cases. Thus, at the most basic quantitative level, the Roberts Court seems to be not especially protective of free speech rights.
Disaggregated, these numbers become more dramatic. Out of the nine cases where the Roberts Court has supported a free speech claim, five of those are cases in which the Court struck down campaign finance reform laws. These numbers bear out Chemerinsky’s argument that “what really animates [the Roberts Court’s ] decisions is a hostility to campaign finance laws much more than a commitment to expanding speech.”
Out of the four non-campaign finance cases in which the Roberts Court has supported a free speech claim, three — the animal cruelty videos case, the funeral picketing case, and the violent video games case — were what I will call free speech “slam-dunks” — that is, cases that were decided by an 8-1 or 7-2 majority, and in which (contrary to the usual Supreme Court’s certiorari practices) there was no split among circuit courts, and the Court affirmed the lower court decision. These free speech slam-dunks, with their colorful facts, were among the Roberts Court’s cases that have attracted the most press attention, but they are hardly indicative of a conservative majority with an expansive view of First Amendment freedoms. The remaining case in which the Roberts Court was willing to uphold a non-campaign finance related free speech claim was Sorrell v. IMS Health Inc., a relatively low-profile commercial speech case in which a 6-3 majority of the Court struck down a state “prescription confidentiality” law, which barred sale or disclosure of doctors’ prescription practices to pharmaceutical marketers. An interesting case, and one which warrants more attention than it has received so far, but not really a banner-worthy free speech decision. At the same time, the conservative majority has shown itself willing to disregard free speech claims by, inter alia, government employee whistleblowers, humanitarian aid organizations, and, most pertinently for today’s purposes, unions. Thus, it seems that the most that can be said of the conservative majority’s free speech record is that “The Roberts court strongly protects speech that it likes, while allowing regulation of speech it disfavors,” as Adam Winkler has put it.
Sachs’ article illuminates a piece of this picture that has been largely overlooked by First Amendment commentators — the Court’s asymmetrical treatment of corporations and unions. To put it in simplistic terms, if you think of corporate and union general treasuries as two big piles of money, Citizens United held that both corporations and unions could spend freely on campaigns from their respective piles, but left in place existing restrictions regarding the amassing of such funds for political purposes that apply to unions, but not to corporations. Specifically, under current law and settled constitutional doctrine, employees have a right to opt out of funding union political activities, but shareholders enjoy no similar right to opt out of corporate political spending. Indeed, the Roberts Court has twice reaffirmed this opt-out right — rejecting public sector unions’ First Amendment challenges to state laws requiring affirmative authorization from non-members for political spending and upholding a ban on voluntary payroll deductions for union dues – and has granted certiorari in a third union dues case set for this term.
The Court has primarily justified this asymmetry by reasoning that in the union context, employees are “compelled” or “coerced” to fund union political speech, while investing in a corporation is a fully voluntary act. Sachs persuasively undermines this distinction, observing that:
The argument that the union and corporate contexts can be distinguished on compulsion grounds reduces to a claim that the costs of being shut out of the stock market are acceptable, but the costs of being shut out of jobs covered by a union security agreement are not. Given the very real costs involved in both contexts, however, this conclusion is not an obvious one.
Especially with regard to public employee pension plans, where, as Sachs argues, public employees may be required to assent to corporate political speech as a condition of employment, the justification for the asymmetrical treatment completely dissolves. According to Sachs, state action doctrine and the associational speech jurisprudence similarly offer no sustainable rationale for this asymmetry.
As Sachs points out, prior to Citizens United, both unions and corporations could make independent expenditures only with PAC funds — those that stemmed from “knowing free-choice donations.” But while the Citizens United majority struck down the PAC requirement for both corporations and unions, “the opt-out rights that unions must grant employees mean that, with respect to political spending, the union general treasury still resembles a PAC.”
Federal law continues to impose on unions a requirement that they fund their political expenditures only with funds voluntarily and knowingly donated for political purposes. Labor law, that is, continues to impose on unions a funding requirement that Citizens United has removed from corporations.
If one takes seriously Justice Kennedy’s claim that political speech may not be restricted based on the identity of the speaker, the asymmetrical treatment of corporate and union political spending is highly constitutionally problematic.
The corporate/union political speech asymmetry may be viewed as one manifestation of a fault line that, as I have previously argued, underlies Buckley’s contribution/expenditures distinction and much of the convoluted campaign finance case law – an unresolved argument regarding the source of First Amendment value in political spending. Does such value derive from a particular spender’s voluntary decision to dedicate a particular expenditure to an expressive purpose — a.k.a., a “knowing free-choice donation”? Or should we, instead, assess such value from the point of view of the marketplace, and hold that free speech values are transgressed whenever a given restriction may lessen the amount of money that can be used for communicative purposes? One could muster strong arguments in support of either theory — but how can the supposedly “source-blind” Roberts Court continue to justify the application of one theory to corporations and a separate theory to unions? Far from imposing coherence in an area of doctrinal confusion, the Citizens United decision continues to raise more First Amendment questions than it answers.
Tags: Democracy, Campaign Finance Reform
By ReformNY – 11/18/11
Every Friday, the Brennan Center will be compiling the latest news concerning the corrosive nature of money in New York State politics—and the ongoing need for public financing and robust campaign finance reform. We’ll also be linking to dispatches from around the country highlighting the national scope of this crisis. This week’s links were contributed by Matthew Ladd and Dan Rockoff.
For more stories on an ongoing basis, follow the Twitter hashtag #moNeYpolitics
NY Campaign Finance and Corruption:
1. The Second Circuit overturned ex-state senator Joe Bruno’s corruption conviction, paving the way for a retrial and rejecting Bruno’s arguments for double jeopardy. The court found that “the government’s evidence... would permit a reasonable jury to find that Bruno performed virtually nonexistent consulting work for substantial payments.” As an example, the court observed that a new jury could reasonably conclude that a payment to Bruno of $40,000, ostensibly for a racehorse, was “an illegitimate gift.”
2. William Boyland’s acquittal on corruption charges related to his ‘no-show’ consulting job continues to generate controversy. A member of the jury that exonerated Boyland stated that the assemblyman “clearly did things wrong,” but that the jury “could not connect the dots” to reach a consensus on the legality of Boyland’s acts. After a relieved Boyland told reporters that he was “going to sleep and breathe” after the acquittal, The Capitol blog remarked that this “doesn’t seem much different from what he had been doing all year in Albany.”Commenting on the Boyland case, U.S. Attorney Preet Bharara said, “It should be a jarring wake-up call. Instead, it seems no matter how many times the alarm goes off, Albany just hits the snooze.”
3. Citing a dizzyingly long list of New York state legislatorseither convicted of or facing charges for corruption—including Joe Bruno, William Boyland, former comptroller Alan Hevesi, former Assemblymen Clarence Norman, Roger Green, and Brian McLaughlin, and former Assemblywoman Diane Gordon—City Room wryly remarks that perhaps New York’s official state motto, “Excelsior,” should be changed to “Ubi Est Mea?”, or “Where is mine?”
4. The federal criminal trial of Bronx City Councilman Larry Seabrook continued this week, as prominent Bronx lobbyist and lawyer Stanley Schlein took the stand against Seabrook, testifying that
Seabrook steered him to a local contractor looking to contract for work at Yankee Stadium. Seabrook is facing 12 counts of money laundering, fraud, conspiracy and receiving corrupt payments.
5. Further proof of the value of strong campaign finance enforcement: An undercover FBI sting culminated in the arrest Wednesday of Xing Wu Pan, a fundraiser for NYC Comptroller John Liu, for illegally funneling thousands of dollars into Mr. Liu’s campaign account. After an FBI agent posing as a businessman offered to donate $16,000—over three times the legal limit for individuals—Mr. Pan recruited 20 straw donors to circumvent the limit. He is charged with two counts of wire fraud. Mr. Liu released a statement Wednesday disavowing any knowledge of the fraud. Meanwhile federal officials continue their investigation of the comptroller’s campaign finance operations.
Other News Nationwide:
6. A study released November 16 by Citizens for Responsibility and Ethics in Washington examined campaign donations to members of key House committees and found that becoming chairman or the ranking member leads to a massive jump in donations from regulated industries. House Financial Services Committee chairman Spencer Bachus has seen contributions from all sources increase by 234 percent since 1998, while contributions from the financial industry jumped 620 percent. CRE Executive Director Melanie Sloan said, “People who are giving you that much money – it is not out of the goodness of their hearts – clearly they want something.”
7. The New York Times criticized the proliferation of “super PACS” and unlimited contributions in this election cycle, calling them a “noxious weed . . . in the lawless jungle of campaign finance.” The editorial called for the Department of Justice to pursue criminal investigationsagainst fundraisers who improperly attempt to influence the candidates, observing: “It is now clear that giving to a candidate’s PAC is equivalent to giving to his campaign; the leaders of the PAC, for all practical purposes, are the campaign’s bag men.”
8. In a New York Times Op-Ed, Harvard Law Professor Lawrence Lessig advocates for a national small-dollar public funding system for Congress. He suggests giving every voter a “democracy voucher” that could then be given to any candidate for Congress who agreed in advance to finance his or her campaign by either those vouchers or individual contributions capped at $100. Lessig argues that such a program would “weaken the power of the very few to demand costly kickbacks for their contributions.”
Tags: Democracy, Campaign Finance Reform, Public Financing, NY Reform
By Jonathan Backer – 11/17/11
James Madison once wrote, “A popular government, without popular information, or the means of acquiring it, is but a prologue to a farce, or a tragedy, or perhaps both.” By exploiting loopholes in campaign finance law, special interests have already succeeded in denying the public of essential information about the sources of money funding political speech. A farcical attempt by one group to keep the public in the dark while also coordinating its message with candidates makes for good political comedy now, but will lead to tragedy if our elected officials begin to feel the full corrupting influence of unlimited, undisclosed, corporate contributions.
In the latest installment of Stephen Colbert’s intrepid quest to expose the absurdities of campaign finance non-regulation in the post-Citizens United era, the comedian recently discussed a new attempt by Super PACs to circumvent the few constraints that remain on their electioneering activities. The Super PAC American Crossroads recently submitted a request to the Federal Election Commission seeking permission for federal candidates to appear in its purportedly “independent” ads. The group acknowledged that ads featuring candidates would be “fully coordinated with incumbent Members of Congress facing re-election in 2012.” After all, a Super PAC would obviously have to share a script and discuss the contents of an ad with a candidate in order for her to appear in it. Nevertheless, American Crossroads would like the FEC to issue an advisory opinion stating that such ads would not qualify as “coordination.”
As the Brennan Center argued in a comment to the FEC, this position runs afoul of “[c]onstitutional law, federal statutes, and common sense.” Fortunately, common sense was no barrier to Stephen Colbert, who rose to the challenge and submitted a comment to the FEC in support of American Crossroads’ request. As Colbert wrote, “The candidate would merely be appearing as a paid spokesperson, who, coincidentally, is closely aligned with the candidate that he or she also is.” To illustrate the paper-thin separation between supposedly independent Super PACs and the candidates they support, Colbert offered an illuminating metaphor:
For example, an ad in which the Kool Aid man decries our nation-wide childhood thirst problem would not necessarily be an ad for Kool Aid brand juice drink. That being said, would a tall glass of Kool-Aid solve that thirst problem? To quote one expert: "Oh, yeaaahhhh!"
Colbert’s letter far and away outstrips the competition for funniest public comment to a regulatory agency, but even the comedian’s most ardent fans recognize that the consequences of a ruling in favor of American Crossroads are far from amusing. After Colbert emailed his comment to supporters of Americans for a Better Tomorrow, Tomorrow (Colbert Super PAC), hundreds of individuals emailed the FEC calling for the agency to deny American Crossroads’ request.
As one civically-engaged student, Andrew Mugica, wrote, “As a young citizen of this country, I shudder to think of the ferocity at which campaigns are currently forced to solicit donations—the thought that they will be fighting for an even bigger chunk of shadowy money absolutely terrifies me….I hope we can find ways to avoid exacerbating this problem.”
Comedians and middle-school students don’t constitute what one would describe as usual suspects for submitting public comments on advisory opinion requests to the FEC. But the legal gymnastics that groups like American Crossroads are performing to subvert campaign finance regulations touch a nerve with large numbers of Americans. A request as absurd as American Crossroads’ belongs properly in the realm of farce, and the FEC should heed the outpouring of opposition and refuse to further expose our democracy to the tragic consequences of outright corruption in the political process.
Tags: Democracy, Campaign Finance Reform, Other Reforms, Disclosure
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