Blog
Disclosure
By Laura MacCleery – 06/12/09
Appeared on the American Constitution Society Blog
Even as Supreme Court nominee Sonia Sotomayor's campaign finance credentials
are brought to light, reform-minded court-watchers are on pins and
needles as to what the next big Roberts' Court decision in that area
will be. The Supreme Court is poised to decide this week a critical
case for the future of campaign finance reform efforts.
The case, called Citizens United v. Federal Election Commission,
is a challenge to part of the 2002 Bipartisan Campaign Reform Act
(popularly known as "McCain-Feingold") - the ban on corporate spending
on broadcast campaign ads
- asking whether it also prohibits the spending of corporate dollars on
a 90-minute on-demand broadcast of "Hillary: The Movie." As its name
implies, the documentary film was originally intended to torpedo
"Hillary: The Presidential Candidate" at a time when she was the top
contender in the Democratic primary.
At least one member of the three-judge lower court reportedly
snickered aloud at oral argument when asked to consider that the movie,
which features the likes of Ann Coulter and portrays Clinton as
"steeped in sleaze," was not an assault on her qualifications for
office. In the most recent case considered by the Supreme Court on
campaign finance, Wisconsin Right to Life II,
the court concluded that an ad that questions the qualifications or
character of a candidate for federal office was rightly subject to the
ban.
Yet March's oral argument in the Supreme Court was humorless. Many
reformers grew deeply worried about where the court was headed after
the Deputy Solicitor General Malcolm Stewart took up its invitation to
speculate about whether a similar ban could reach books downloaded on
Kindle or other, non-broadcast media.
The "what-ifs" posed by the Supreme Court utterly disregarded the
specific terms of the reform, the 2002 so-called "McCain-Feingold" law,
which extended only to "broadcast advertisements." Although its 2003
opinion did not rule out other regulations, the decision to uphold the
law focused on the problem at hand: corporate spending on television
ads that overwhelmed the airwaves during election season.
In that decision not too long ago, the Rehnquist-led Court
acknowledged congressional concern over the "corrosive and distorting
effects of immense aggregations of wealth ... [on expenditures that]
have little or no correlation to the public's support for the
corporation's political ideas." The court also noted that the
provisions were justified to stop the circumvention of other limits on
corporate spending on elections, which has been generally prohibited in
federal races since 1907.
Fast-forward six years and it is now another day, another dollar in the Supreme Court. The Citizens United oral
argument was full of flights of fancy about entire categories of speech
no one had actually imagined were at issue, including books.
But the court's parade of horribles did not instruct so much as
obscure the questions before it. While the Justices could simply have
asked whether the term "advertisement" applies to a full-length movie,
or whether "on-demand" communications are distinct in nature from
general broadcasts (they might be), the court instead showed a
dangerous, and not very "umpire-like," tendency to look past the terms of the statute to the great unknown.
If the First Amendment or any other constitutional provision is
considered in the abstract, untethered from its concrete and specific
goals, then any mere law - including McCain Feingold - has little
chance of measuring up. Indeed, the version of First Amendment
absolutism that this court appears to practice, and may apply here, is
in stark contrast to the sober assessment of practicalities, and
balancing of competing goals, that every prior court since Buckley
used to evaluate campaign finance rules. But freelancing - even when it
comes to questions regarding the reach of the First Amendment - is
hardly what we expect of our courts.
The question of how to adapt statutes written for a previous age to
fit new technologies - i.e., whether there is any conceivable
corruption interest in books purchased and downloaded to a Kindle - is
not a question best first addressed in a courtroom at oral argument,
but by a legislature or regulatory body charged with solving a specific
harm, and proposing a particular plan to address it.
It is obviously the case that major adaptations in campaign finance
law - as in many other areas - will follow in the wake of tectonic
shifts in how we share and process information. And it is likely that
new rules will need to be evolved to grapple with corruption concerns,
where they do persist.
Persist they will, because where there is power, there will be those
who try to corrupt it. Recent scandals, such as those in the rotten
mortgage bond market or the attempts to sell a U.S. Senate seat in
Illinois, show that addressing both actual and possible political
corruption remains a pressing concern for the health of our democracy.
Web-based tools mean that it will be easier and simpler than ever
before to report and track information about contributions and other
campaign spending, which may actually shift the balance in favor of
regulation. The real issue is not whether one may draw lines around
protected and prohibited categories of communication, but who
is best suited to develop and draw those lines. Should it be Congress
and the Federal Election Commission? Or should it be the court?
The mere existence of novel media does not somehow render obsolete
the concern, dating back to the Constitutional Convention, of how to
balance the access of special interests to public institutions and
officials to make them less prone to corruption, capture and other
delegitimizing influences. Thoughtful campaign finance rules demand a
reconciliation of First Amendment protections with the equally serious
need to check political corruption and the appearance of such
corruption.
This court, as well as any future composition of it, would do well
to decide cases in the campaign finance area carefully, based on the
statute before it and the weight of precedent. We hope that this week,
and in the future, it will allow the other branches of government to
adapt this part of the law to changing circumstances, rather than
allowing the shadow-boxing possible in oral argument to gain substance
in constitutional precedent.
Tags: Campaign Finance Reform, Contribution Limits, Disclosure
By Ciara Torres-Spelliscy – 05/14/09
Cross-post from Huffington Post.
Last week's TARP stress test results reminded us to ask ourselves: now that the federal taxpayer owns nearly 80% of AIG, are AIG's interests ours? We own a quarter of Citibank; does that mean the bank's desires are now in sync with ours? Is Bank of America—currently afloat with $45 billion in taxpayer dollars—now truly America's bank? In a word: No. The political interests of bailout recipients aren't necessarily consistent with public interest which is one reason recipients should be held accountable for all political or partisan spending they do with our money.
Government ownership of big portions of the economy could threaten democracy; for one thing, it creates massive conflicts of interest for those who manage bailed out companies. Do they have a fiduciary duty to the taxpayer or the companies they manage? What happens when those duties aren't perfectly aligned? Alarmingly, if not surprisingly, the AIG bonus debacle suggests managers' inclination to act in the corporate, not the public's, interest.
Read the rest of this story ...
Tags: Democracy, Campaign Finance Reform, Other Reforms, Disclosure
By Andrew Boyle – 05/13/09
A widely attended conference convened by the Brennan Center for Justice brought together academics, activists, politicians, Obama Administration officials and even an actor in a packed hall at the National Press Club in Washington, D.C., on May 8th (click here to learn more about the conference).
The event, "Money in Politics 2009: New Horizons for Reform," was kicked-off by a presentation by Congresswoman Chellie Pingree (D-ME) and closed with a ringing call of public funding of federal elections by the actor Sam Waterston. During the day were presentations by a variety of experts and commentators including Peter Overby of National Public Radio's Power, Money and Influence, Fred Wertheimer, President of Democracy 21 and Professor Allison Hayward of George Mason University School of Law.
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Tags: Democracy, Campaign Finance Reform, Contribution Limits, Other Reforms, Disclosure, Public Financing
By Andrew Boyle – 05/08/09
A day-long conference, "Money in Politics 2009: Horizons for Reform," convened by the Brennan Center [
click here to see agenda, and follow on
twitter: #bccfr], will take place today, May 8th, at the National Press Club in Washington, DC. The focus is on innovations that address the nexus between money and politics. One such proposal is the Fair Elections Now Act ("FENA"). The Act would build on successes in the states with systems of voluntary public funding of elections.
Embracing their role as "laboratories for democracy," three states, Arizona, Connecticut and Maine, enacted voluntary public funding programs for legislative and statewide elections following well-publicized scandals to reduce the power of well-heeled special interests and to enhance the participation of ordinary citizens as both candidates and voters in the political process.
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Tags: Democracy, Campaign Finance Reform, Contribution Limits, Other Reforms, Disclosure, Public Financing
By Ciara Torres-Spelliscy – 04/09/09
AIG made headlines for giving out millions of dollars in bonuses after receiving billions of dollars in federal bailout funds. But the issue of bonuses is really just the tip of the iceberg. Indeed, taxpayers do not really know how banks and other corporate recipients of hundreds of billions of taxpayer dollars have used the money.
The lack of transparency inspired the Brennan Center to write to Elizabeth Warren, the Chair of TARP’s Congressional Oversight Panel (COP), to urge greater disclosure of political spending by those entities saved by the taxpayers.
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Tags: Democracy, Campaign Finance Reform, Other Reforms, Disclosure
By Andrew Boyle – 03/27/09
The FEC's structure and appointment process has proven, time and again, to elevate partisan politics over principled decision-making. Votes that split 3–3 along partisan lines, and the resulting enforcement paralysis, are now de rigeur. With the persistent stalemate, the FEC has revealed itself as an inept overseer ofelection law.
The BrennanCenter, and other good government groups, recently sent a letter to the FEC voicing concern over this very issue, recommending long-overdue structural changes. The FEC's frequent deadlock is a product of the rule requiring that any FEC decision have the support of four commissioners. The commissioners, however, often choose loyalty to their parties over loyalty to their position, hence the even splits. As we wrote to the FEC, a far better alternative to the current process where each party fills"its" three spots, would be to "establish a system by which an advisory group made up of distinguished Democrats, Republicans and independents or members of other political parties, would provide [President Obama] (and future Presidents) with a list of potential nominees for each FEC appointment, from which he would select a nominee."
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Tags: Democracy, Campaign Finance Reform, Other Reforms, Disclosure
By Justin Gundlach – 02/26/09
Rep. Jeff Flake (R-AZ), in his February 24th op-ed in the NY Times, called on Congress to break the conduit that links campaign contributions to appropriations earmarks.
Congressman Flake’s voice is one of laudable integrity. Not only has he turned a spotlight on the insidious facts of pay-to-play, but, by acknowledging in a Washington Post op-ed after the 2008 election that “the proliferation of earmarks is largely a product of the Gingrich-DeLay years,” as well as noting news reports concerning an investigation into earmarks by Rep. Jack Murtha (D-PA), he has issued a challenge to Congress as a whole. As Congressman Flake observes, neither party can claim to be untainted by the current phrasing of the House Ethics manual, which invites members who write earmarks to pretend that campaign contributions do not constitute a “financial interest.”
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Tags: Democracy, Campaign Finance Reform, Other Reforms, Disclosure
By Monica Youn – 01/27/09
Cross-posted from Huffington Post.
Roads and bridges apparently lack the headline value of Kennedys and Clintons, and Friday's unanimous Senate confirmation of Obama's nominee for Secretary of Transportation Rep. Ray LaHood (R-Ill.) excited little news commentary. This is a crying shame because roads and bridges—and the lucrative contracts for their construction—are the stock-in-trade of pay-to-play politics, as we saw with Gov. Blagojevich's brazen sale of state contracts to campaign contributors. By softballing LaHood's confirmation hearings, the Senate missed the opportunity to exact guarantees that the pay-to-play culture of Bush's Transportation Department and LaHood's home state of Illinois won't make inroads into the Obama Administration, potentially undermining the new Executive Branch's reform agenda.
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Tags: Democracy, Campaign Finance Reform, Contribution Limits, Other Reforms, Disclosure
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