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Disclosure
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
By Jonathan Backer – 11/04/11
For years, campaign finance reform advocates have decried the paralysis of the Federal Election Commission. The FEC’s three Democratic Commissioners and three Republican Commissioners routinely gridlock on even the least controversial enforcement matters — resulting in utterly toothless enforcement of our nation’s campaign finance laws. The roots of the Commission’s ineffectiveness were on full display in Congress yesterday, where the members of the Federal Election Commission testified before a House Subcommittee but could scarcely simulate functionality for the purposes of the hearing.
The FEC is charged with enforcing the nation’s campaign finance laws. To take any action, from routine enforcement to rulemaking to the issuance of advisory opinions, the FEC requires a four-vote majority. Because the Commission is composed of three members from each party, its habitual 3-3 votes along partisan lines mire the Commission in inaction.
Despite the desperate need for the FEC to update disclosure rules in light of loopholes created by Citizens United v. FEC, the Commission has twice this year deadlocked on votes to merely initiate the rulemaking process. The Commissioners have routinely ignored the recommendations of their own non-partisan staff, voting 3-3 against penalties for blatant malfeasance.
The behavior of the Commissioners at Thursday’s hearing mimicked the dysfunction that regularly governs FEC activity. When asked if they felt current disclosure law is adequate, the Republicans said, yes, the Democrats, no. When asked if a request for additional information from someone filing a report with Commission constituted an act of enforcement, the Commissioners again divided along partisan lines.
Unfortunately, this oversight hearing was a lost opportunity. While the hearing caricatured the tendencies of the agency, the subcommittee members failed to probe the sources of gridlock on the Commission. Instead, they spent an inordinate amount of time squabbling amongst themselves and with the Commissioners about procedural matters concerning the agency.
The blame for FEC dysfunction lies with the agency, Congress, and President Obama. Five members of the Commission currently languish as lame ducks. Their terms have expired, and they cannot be reappointed, but President Obama has made a lackluster effort to replace them, nominating no Commissioners since 2009. Fixing the FEC will take more than a Congressional hearing. President Obama needs to fill the vacancies on the FEC now with members who, regardless of partisan affiliation, believe in the mission of the agency — to enforce the nation’s campaign finance laws.
Tags: Democracy, Campaign Finance Reform, Disclosure
By Jonathan Backer – 10/25/11
Crossposted at Campus Progress.
Members of the Congressional Super Committee — a bipartisan group of lawmakers charged with cutting a minimum of $1.2 trillion from the federal budget — have just one month before their deadline. Despite the many issues that divide them, Super Committee members have at least one thing in common — they have allowed special interest influence to haunt their committee, much like the spooky ghosts known to stir up mischief this time of year.
As fans of Ghostbusters know, ghouls cannot be eliminated, but they can be contained. In the 1980s blockbuster, Bill Murray, Dan Aykroyd, and Harold Ramis restore order to New York City by capturing evasive spirits in a high-tech containment unit. When it comes to the groups trying to influence the Super Committee, we too need a little “ecto-containment.” Special interest money will influence the decisions that the Super Committee makes, but prompt disclosure will give the public the ability to contain its ill effects by holding lawmakers accountable.
In a nationwide push spearheaded by the Sunlight Foundation this Halloween, constituents of Super Committee members will knock on district office doors to ask for neither tricks nor treats, but transparency.
As many have argued, robust transparency is the best way to keep Super Committee members working for the American people. To this end, the Brennan Center has pushed for real-time disclosure of contributions to Super Committee members, their meetings with lobbyists, and any solicitations by committee members for third-party groups. Legislators from both sides of the aisle, including Sen. David Vitter (R-LA), and Reps. Dave Loebsack (D-IA), Mike Quigley (D-IL), and James Ranacci (R-OH), have sponsored bills that would require many of these policies. These efforts have not borne fruit. But the stakes keep rising.
The Project on Government Oversight estimates that the average Super Committee member, since being appointed, has raised an additional $2,270 per day in campaign contributions. (That’s more than many people earn per month.) One Super Committee member, Rep. Chris Van Hollen (D-MD), reportedly raised twice as much in the third quarter of 2011 as he did in the second. The Sunlight Foundation reports that PACs for 19 of the biggest political donors — corporations like Lockheed Martin, the National Association of Realtors, Pfizer, and Chevron — donated a total of $83,000 to Super Committee members in the three weeks after their appointment.
On top of that, Politico reports that in the past six weeks, 200 companies and special interests have reported that they are lobbying Super Committee members. The Washington Post found that 100 former staffers for Super Committee members currently work as lobbyists. And according to the Huffington Post, half of the lawmakers on the Committee currently employ former lobbyists. The revolving door between Capitol Hill and K Street, while nothing new, has a magnified potential to distort policy given the amount of power wielded by these twelve members.
Moreover, the 2010 Supreme Court decision Citizens United v. FEC has greatly expanded the role of supposedly independent political groups. Lawmakers, including Super Committee members, face more pressure than ever to fundraise for these groups and secure a larger piece of the third-party spending pie.
But between now and Thanksgiving, when the Super Committee must submit its proposals, information about these means of influence-peddling will remain cloaked in darkness. The Federal Election Commission will next report candidate contribution data on Jan. 31, 2012, long after the Super Committee reaches a final verdict. Even worse, the major independent spenders have all devised mechanisms to hide the identity of their donors, so we may never know who donated to these political powerhouses at Committee members’ requests. And, members have refused to create a public log of lobbyist meetings with their staff — this information too may never see the light of day.
But it is not too late for the Super Committee to voluntarily adopt these common sense rules. That’s why grassroots activists around the country are heeding the Sunlight Foundation’s call to celebrate Halloween by haunting the House and Senate — and you should too. On Oct. 31, visit the district offices of Super Committee members and call for greater transparency. With enough support, we can trap the ghosts of special interest influence in an “ecto-containment unit” of simple disclosure policies.
Tags: Democracy, Campaign Finance Reform, Other Reforms, Disclosure
By Elizabeth Kennedy – 09/26/11
Crossposted at The Hill's Congress Blog.
Have Washington’s partisans found something to agree about?
In a rare moment of agreement, it seems members of both parties want to take action to prevent political spending from leading to political favoritism.
In an unexpected reversal, Rep. Darrell Issa (R-CA) has launched an investigation into White House ties to campaign donors seeking government contracts, loans, and other benefits. This move comes just a few months after news of an executive order that would bring greater transparency to government contracts was leaked to the press — and a few months after Issa came out against such efforts.
At the time, Issa was against requiring companies bidding on government contracts to disclose their political spending, including any currently-masked spending done through third-party groups. Now, as chair of the House Committee on Oversight and Government Reform, he wants to probe the system for granting government contracts and regulatory approvals.
In this moment of rare bipartisan agreement, President Obama should sign his draft executive order without delay.
Often, political spending by those seeking to do business with the government takes place in the dark, as front groups with innocuous names run harsh political attack ads without revealing the true source of their funds. When voters don’t know where the money is coming from, they can’t detect which deals are truly in the public’s interest, and what is improper political payback.
Since the draft executive order leaked this spring, we’ve seen multiple stories of political spending leading to political favoritism, most recently involving Republican presidential candidate Rick Perry. The New York Times reported that “a review of Mr. Perry’s years in office reveals that one of his most potent fund-raising tools is the very government he heads.” Bloomberg reported that “Perry has a public record of rewarding his political donors with jobs and state contracts.” For example, a major Perry donor received an environmental permit for a radioactive waste dump, despite concerns it would contaminate a critical source of drinking water. Three members of the technical review team resigned to protest the permit’s approval. One of the commissioners, (who, though appointed by Perry, voted against the permit and then did not rejoin the commission), said “[e]verybody was aware that this was an important item for the people that were seeking the license as well as for the governor’s office.”
The same “crony capitalism” that infects Texas politics can threaten the federal contracting process. Without transparency, corruption in the contracting process can lead to sweetheart deals that benefit the recipient of the contract and the recipient of the political contributions at the expense of taxpayers. The executive order would unearth some of the millions of dollars in secret spending that is playing an ever greater role in our political system.
Back in May, Issa characterized the administration’s attempts to shed light on financial relationships between government contractors and the beneficiaries of their electoral spending as “Chicago hardball politics that will clearly lead to a chilling effect on contributions by those required to participate.” But companies seeking to curry favor with governmental representatives are not shy about letting them know they’ve provided financial support in one way or another. The only people currently in the dark are the American people. Issa himself has lobbied executive agencies for the types of loans he is now investigating, but he now says this is “a back-door easy way to end up with corruption in government.” We need the executive order to keep these financial relationships out of backrooms and expose political spending to the light of day.
And Issa has company — Rep. Ralph Hall is also examining whether political spending played a role in actions taken by the White House. In a letter to the Office of Management and Budget, Hall wrote that “[w]hile some may call it a coincidence . . . we remain skeptical that shortly after two separate sets of meetings and meeting requests, LightSquared employees made five-figure donations to the Democratic Party.” This is the same information that the executive order would bring to light about political spending by companies. Expanding the information available to citizens, watchdog groups, and Congress itself will enable these groups to uncover any questionable contracting decisions linked to financial relationships.
Critically, requiring the disclosure of political spending by those seeking government contracts will not only fight corruption, but also prevent the appearance of corruption and political favoritism, which has a corrosive effect on confidence in government. And knowing that these financial relationships will be disclosed will help deter any contracting decisions not made in the best interest of the American people.
The draft executive order states, “It is incumbent that every stage of the contracting process – from appropriation to contract award . . . be free from the undue influence of . . . political favoritism.” The recent actions of Issa and Hall indicate that, though they both voted to block the effectiveness of the executive order should it be signed, they support this goal. President Obama should take this opportunity to sign the executive order and increase transparency and accountability in political spending to prevent political favoritism.
Tags: Democracy, Campaign Finance Reform, Disclosure
By Mimi Murray Digby Marziani – 09/15/11
Crossposted at Salon.
All summer, NFL owners and players faced off in bare-knuckled negotiations that threatened to scotch this year's season. In the end, they reached a compromise. Americans have been cheering since last Thursday's first game.
The NFL opener coincided with the start of negotiations among members of the congressional supercommittee, tasked with crafting a long-term financial plan for our country. Unfortunately, the prospects for a crowd-pleasing, conciliatory ending seem much less likely.
This powerful committee held its first public hearing on Tuesday. Its "fans" — corporate lobbyists of all stripes — went wild, rushing the Capitol and positioning to get the biggest bang for their clients' bucks. One candidly revealed his best offensive strategy: "writing 12 really large checks." No doubt prominent campaign contributors of past elections, like the telecom giant AT&T and the abortion-rights advocate Emily's List, are also expecting front-row seats.
But, in the words of Supreme Court Justice Elena Kagan, "Democracy is not a game." The committee's choices will set the nation's fiscal course for years — if not decades — to come, and will affect virtually all American voters, industries and communities of interest. The stakes couldn't be higher.
There is only one way to ensure that committee members (the "supers") stay super-focused on the general good rather than personal gains: through robust transparency. All potentially corrupting outside influences — large campaign contributors, lobbying contacts and fundraising relationships with outside political groups — must be made public.
The reasons for the first two are obvious. Real-time disclosure of large campaign contributions made to supers while they are deliberating is a key way for the American people to ascertain who is trying to curry favor now. Indeed, there is bipartisan support to impose a tight deadline upon such contributions — a rarity in today's polarized political environment.
In early August, Sen. David Vitter, R-La., introduced the Super Committee Sunshine Act, which would force committee members to disclose contributions over $1,000 within a 48-hour window. In his words, "Given the important work this committee will be doing over the next four months, it's just plain good government for the public to know what special interests are trying to influence the committee."
Last week, Reps. Dave Loebsack, D-Iowa, Mike Quigley, D-Ill., and Jim Renacci, R-Ohio, introduced the more comprehensive Deficit Committee Transparency Act. Like its Senate counterpart, this bill would demand prompt disclosure of campaign contributions. It would also require supers and their staffs to publicly disclose meetings with lobbyists and other special interests within 48 hours.
Disclosing lobbying contacts is just plain common sense. As the Washington Post recently reported, almost 100 registered lobbyists who used to work for members of the supercommittee now represent "defense companies, health-care conglomerates, Wall Street banks and others with a vested interest in the outcome of the panel's work." And, half of the supers currently employ former lobbyists on their staffs. These close connections already raise the suspicion of backroom dealings. Holding meetings in secret does nothing but confirm our worst suspicions.
Unfortunately, both these bills are currently languishing in committee, and are not likely to see the light of day unless public attention forces congressional leaders to act. Even so, these measures are not enough.
The supers must also be forced to disclose their involvement in soliciting funds for supposedly independent groups that seek to influence politics. These groups — like SuperPACs, 501(c)(4)s, and trade organizations like the Chamber of Commerce — play an outsize role in today's elections, and can be designed to shield tit-for-tat arrangements with specific candidates. Without transparency, special interests could funnel political dollars for supers through friendly third-party groups with no disclosure obligations, ensuring that their political largess never becomes public.
Supers have certainly benefited from outside spending in recent elections. In her tight reelection last year, Sen. Patty Murray, D-Wash., enjoyed more than $9 million of outside spending, helping her squeak by her Republican opponent, Dino Rossi. Sen. Pat Toomey, R-Pa., spent years as the president of the anti-tax Club for Growth, a group that spent $8.2 million on independent expenditures last election cycle. As supers anticipate future hard elections, there is no question they will want these heavy-hitting political players on their side.
The temptation to promise political favors today for electoral support tomorrow will be hard to resist. The only solution is full transparency. After all, our democracy is on the front line.
Tags: Democracy, Campaign Finance Reform, Other Reforms, Disclosure
By Mark Ladov – 08/12/11
In another victory for political transparency, the First Circuit Court of Appeals upheld the constitutionality of disclosure laws in Maine and Rhode Island. The Court found that disclosure serves the public’s right to know the source of money in politics — without limiting or chilling the speech of advocates like the National Organization for Marriage, which brought both lawsuits. The Maine and Rhode Island decisions mark the latest in a string of court victories, which leave little doubt that robust disclosure laws serve the values of the First Amendment and promote a vigorous and open marketplace of ideas.
Current events in Washington remind us of the need for political transparency and disclosure of money in politics. With the debt ceiling raised, Congress now looks to the 12 Super Committee members to come up with $1.5 trillion in deficit reduction by November 23rd. Unsurprisingly, lobbyists are already focusing their attention — and money — on these dozen Senators and Representatives.
Given the stakes, the Brennan Center is calling on the Super Committee to make its dealings as transparent as possible, writing an op-ed in Politico and sending a letter to the Senate Rules Committee. All potentially corrupting outside influences — campaign contributors, ties to business corporations, relationships with political groups — must be made public.
Tags: Democracy, Campaign Finance Reform, Disclosure
By Elizabeth Kennedy – 08/09/11
Crossposted at Huffington Post.
Stanley Greenberg recently described the current crisis of government legitimacy. He wrote that "the nexus of money and power, greased by special interest lobbyists and large campaign donations" means that "the game is rigged" and "the wealthy and big industries get policies that reinforce their advantage." He quotes voters who say "we don't have a representative government anymore." Considering the federal government's recent performance, and with Congress's disapproval rating at an all time high of 82 percent, it's a legitimate critique.
The major justification for laws governing the financing of political campaigns is that they will prevent "both the actual corruption threatened by large financial contributions and the eroding of public confidence in the electoral process through the appearance of corruption." Unfortunately, a real roadblock to comprehensive reform is the constrained, impoverished view of corruption articulated by the Supreme Court's conservative majority. They have disavowed the Court's prior understanding of the corrosive and distorting effects of immense aggregations of wealth on a democracy
The idea that money can have deleterious influences on elections, even outside the context of bribery, goes back more than a century. The Supreme Court recognized this in McConnell v. FEC, when it found that corruption of government is "not confined to bribery of public officials, but extend[s] to the broader threat from politicians too compliant with the wishes of large contributors." The possibility that legislators will "decide issues not on the merits or the desires of their constituencies, but according to the wishes of those who have made large financial contributions valued by the officeholder" is a more subtle form of corruption than straight quid pro quo transactions, but is "equally dispiriting." And in FEC v. Beaumont, the case upholding the ban on direct corporate contributions to candidates, the Court expressed concern that corporations would "use resources amassed in the economic marketplace to obtain an unfair advantage in the political marketplace."
Money in politics leads to corruption of government not only when a quid pro quo arrangement between a campaign contribution and favorable political treatment exists. The special access and undue influence awarded to those who have financial resources to support or oppose a representative's re-election are themselves a form of democratic corruption. It leads to the rampant cynicism and civic disengagement when voters conclude that "there's just such a control of government by the wealthy that whatever happens, it's not working for all the people; it's working for a few of the people."
Regrettably, in Citizens United the Court expressly found that "the appearance of influence or access . . . will not cause the electorate to lose faith in our democracy." As evidenced by Mr. Greenberg's research, the public has a more realistic understanding than the Supreme Court of the corruption that results from campaign finance policies that allow large amounts of money to dominate elections in a democracy. The American people understand that who pays the piper calls the tune, and don't care about the formalistic distinctions that run through campaign finance jurisprudence.
The Supreme Court has moved far away from a holistic view of what corruption of a representative government looks like. In another case decided this year, Nevada Commission on Ethics v. Carrigan, Justice Scalia discussed the motivations that induce a legislator to vote one way or another, and equated a legislator voting according to his best judgment, voting against his best judgment but in the interest of his constituents, and voting against his best judgment but in the interest of his contributors. Only the first two are democratically legitimate considerations when determining the public policy of our country — the last is a perversion of our democracy to benefit the wealthy and elite.
There are several proposals to increase transparency and accountability for money in politics. The Fair Elections Now Act would enact public financing of Congressional campaigns to break the stranglehold of special interest money. This would increase the amount of political speech available to voters, allow candidates to spend more time reaching out to voters and addressing their concerns, and supercharge the power of small donors. The draft Executive Order on disclosure of political spending by government contractors would shine a light into back-rooms and discourage political favoritism when spending taxpayer money. The Shareholder Protection Act would require companies to get permission from their shareholders and disclose the money they spend to influence elections. The 2012 elections are expected to be the most expensive ever, and awash in the secret spending should our leaders fail to enact reforms.
During the debate on the debt ceiling, polls showed that most Americans, including a majority of Republicans, were in favor of taking a balanced approach and raising revenue by closing loopholes that benefit the wealthiest Americans and special interests. And yet, once again, the result from Washington did not reflect the people's preferred policy solution. Our government is not serving their interests, and it is a democratic shame.
Tags: Democracy, Campaign Finance Reform, Other Reforms, Disclosure
By Maria da Silva – 08/08/11
The American Bar Association (ABA) House of Delegates approved a judicial disqualification resolution today. The resolution urges states to establish clear procedures for dealing with judicial disqualification and calls for greater transparency of campaign spending in judicial races. The Brennan Center applauds the ABA’s for its leadership on judicial recusal and for taking this historic action.
The Brennan Center has consistently advocated for clear and comprehensive disqualification rules. We previously documented the threats that costly, negative, and special interest funded judicial election campaigns present to a fair and impartial judiciary. Indeed, numerous public opinion polls report that Americans are concerned about judicial neutrality in light of the ever increasing incursion of cash in the courtroom—three in four believe that campaign spending can influence courtroom decisions and a similar majority overwhelmingly agree that a challenged judge should not have the final say on his or her own disqualification.
Reforming disqualification practices in state courts is one way to reassure the public that judges’ decisions are not held captive by partisan political concerns nor—in the 39 states that elect judges—judicial campaign spending. In 2009, the U.S. Supreme Court recognized in Caperton v. Massey that there was a “serious, objective risk of actual bias” when a judge refused to step aside from a case involving his principal benefactor. The Court also noted that states would be well served to adopt recusal rules “more rigorous” than the Constitution requires. Nonetheless, more than two years after the landmark judicial disqualification decision, states have failed to implement meaningful reform.
We hope that states will heed the ABA’s suggestions. We are pleased the ABA’s judicial recusal guidelines closely follow the proposals outlined in our study of state action on judicial recusal: Promoting Fair and Impartial Courts through Recusal Reform.
As special interest spending in judicial elections continues to escalate, states must respond to the ABA’s resolution and develop new standards and procedures for judicial disqualification and related disclosure in order to preserve the fairness and impartiality of the judiciary.
Tags: Democracy, Fair Courts, State Judicial Elections, Disclosure
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