Blog
Disclosure
By Ciara Torres-Spelliscy – 07/28/10
Yesterday the threat of filibuster in the Senate killed — at least for the moment — a transparency bill the country both needs and wants. This is another example of how the continual threat — and use — of the filibuster is bringing our democracy to a halt. Tuesday’s victim? Americans who might want to know who is funding political ads in our elections.
The Constitution set up two different houses of Congress, and each governed by different rules. The House is designed for speed. The Senate, by contrast, has a different design which by its very nature slows down the pace of legislation and encourages deliberation — that’s why its members are older, serve longer, staggered terms, and why power is dispersed among committee chairs instead of being concentrated in the majority leader. As a former Senate staffer, I have seen firsthand how the Senate counters the impulsiveness of the House.
But, while debate and compromise make our country’s laws better, an overused minority veto makes progression impossible. The filibuster was never intended to be a tool for permanently derailing every piece of legislation. In recent years, the filibuster — and even the threat of a filibuster — has morphed from the exception to the rule, preventing the Senate from addressing critical policies, even those that the voters demand.
The latest casualty of the Senate filibuster was the DISCLOSE Act, which would have ensured that corporate and union political spending on future federal elections (including this fall’s upcoming election) was fully disclosed to voters. The act also would have banned foreign-owned companies from spending in U.S. elections and kept TARP recipients and large federal contractors from running campaign ads. Now, thanks to the threat of filibuster, all of these doors are wide open to abuse.
After the Supreme Court granted corporations and unions the constitutional ability to spend their treasury funds on elections in the Citizens United case last winter, polls of likely voters showed that approximately 80 percent the American public vehemently disagreed with the decision and wanted Congress to enact legislative remedies. What did the voters want? According to the polling, significant majorities from across the political spectrum wanted foreign corporate dollars to stay out of U.S. elections, shareholders to have a say on how their investments were used in politics, pay-to-play politics to stop, and real transparency of where political money was coming from. The same polls showed majorities also support the Fair Elections model of funding campaigns to empower voters and small donors over big special interest money. Happily, even in the wake of the defeat of the DISCLOSE Act, other reform options — such as the Shareholder Protection Act and the Fair Elections Now Act — remain alive for Congress to embrace as responses to Citizens United.
Read the rest at The Hill's Congress Blog.
Tags: Democracy, Campaign Finance Reform, Other Reforms, Disclosure
By Ciara Torres-Spelliscy – 07/06/10
The confirmation hearings for Supreme Court nominee Elena Kagan provided a miniature seminar on constitutional law. Kagan was asked over 500 questions and she discussed topics as diverse as gun rights to partial birth abortion. But front and center has been the January 2010 Supreme court case, Citizens United v. FEC. This was the case that granted corporations the same right to spend money on elections as a living, breathing human being.
Both Republicans and Democrats on the Senate Judiciary Committee – who will determine Ms. Kagan’s professional fate – appeared to be largely talking past her when they referenced Citizens United. For Republicans, the case is about an absolutist view of the First Amendment, which equates corporate money and individual speech. Several Republican Senators took the opportunity to repeat Senator Mitch McConnell’s debunked claim that Kagan urged book bans or would censor literature.
Meanwhile, Democrats harped on the Citizens United case as an example of a conservative Court run amuck and a danger to the integrity of the democratic process by unleashing free-spending corporations and unions into the political environment. In particular, Senator Franken among others, worried aloud that as Congress tries to adopt new environmental reforms, consumer protections or regulations of Wall St., lawmakers may be reluctant to anger corporate CEOs with buckets of money to throw into future elections.
Throughout the hearings, Solicitor General Kagan performed the common dance for judicial nominees, pledging fidelity to all Supreme Court precedents no matter how far afield from her own preferences any particular holding may be. Through most of the hearings, it was difficult for viewers to discern how Ms. Kagan personally feels about the underlying legal and social issues.
Ms. Kagan, though, may have inadvertently revealed her personal beliefs when she suggested the Court wrongly decided the Citizens United case. Ms. Kagan argued this case for the government as Solicitor General last September but nonetheless carefully provided the obligatory observation that the Court’s Citizens United opinion – which rejected her own argument on behalf of the government – is established precedent, and, that she would, of course, respect it as such. Asked whether she agreed with the government’s position in the case, she responded “[a]t least for me when I prepare a case for argument, the first person I convince is myself.” In other words, when she argued to the Supreme Court that they should follow over 60 years of federal law to keep corporate dollars out of elections, she meant it.
Thinking Citizens United is wrongly decided puts nominee Kagan in the mainstream of Americans. Polls conducted after Citizens United was decided, suggest 80% of Americans think the case was wrongly decided. The same polls show 72% of Americans want reforms to limit corporate spending, 85% of Americans want to keep foreign-owned corporations from spending on American elections, 80% of voters want shareholders to have the right to vote on future corporate political spending before managers spend corporate funds on elections, and voters support the public financing by a margin of two to one. The polls found these beliefs were held by Republicans, Democrats and independents.
Pending legislation would address Americans’ concerns about Citizens United. The DISCLOSE Act (H.R. 5175) would stop electioneering by certain foreign-owned corporations and would require more transparency with respect to political expenditures; the Shareholder Protection Act (H.R. 4790) would give shareholders a vote on future corporate political spending by managers. And the Fair Elections Now Act (H.R. 1826) would provide public financing for congressional candidates thereby empowering voters, by putting power to fund elections in the hands of small donors. Of course there is a great deal of resistance to these bills by special interests, but Congress needs to show some fortitude in marshalling them to the President’s desk for signature.
Solicitor General Kagan will likely soon be Justice Kagan. But after Congress completes its work on her nomination, it should turn quickly to the task at hand of passing the legislation that will respond to Citizens United. In reviewing these new laws, hopefully the new Supreme Court will have an opportunity to temper Citizens United’s excesses so that corporations can participate in meaningful ways without burying the electoral system under a dump truck of money.
Tags: Democracy, Campaign Finance Reform, Other Reforms, Disclosure, Public Financing
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 Ciara Torres-Spelliscy – 04/14/10
Iowa is used to being a political leader. After all, they get first cut at choosing the Presidential candidates though the Iowa Caucuses. And the Hawkeye State has continued to show leadership by adopting a strong stance against Citizens United.
Iowa was among the two dozen states that banned corporate political expenditures up until January 21 of this year. The Supreme Court’s Citizens United decision wiped out that protective part of Iowa’s statutes. But Iowan lawmakers used the tools that are still at their disposal: they improved Iowa’s corporate governance to ensure that corporations have internal controls over their political spending.
The new law signed by the Governor on April 8, 2010, requires a majority of the board of directors to vote in the affirmative to authorize political expenditures from the corporation’s coffers. This mirrors board approval requirements already in place in Missouri and Louisiana. The bill also bars corporate political expenditures from foreign corporations and has clearer coordination rules. Furthermore, like West Virginia’s new law, and Arizona’s new law, Iowa’s law improves disclosure of corporate political spending so that voters know who is behind political adverts.
The Brennan Center has suggested that states and Congress could go further to constitutionally require not only board approval, but also shareholder approval as well. Iowa’s midwestern neighbor Wisconsin, just passed shareholder approval in its Senate and the bill is on the way to the House for further consideration. But Iowa’s groundbreaking law is a step in the right direction towards more accountability that is worthy of duplication.
Tags: Democracy, Campaign Finance Reform, Other Reforms, Disclosure
By Brennan Center for Justice – 04/12/10
The Brennan Center urges adoption of the Shareholder Protection Act (H.R. 4790). The Act would provide shareholders with notice of corporate political spending, as well as providing shareholders with the ability to vote on future political spending by corporations. Today we sent two open letters to Congress urging support of the bill.
Frederick ('Fritz') A.O. Schwarz, Jr., the Brennan Center’s Chief Counsel and partner at Cravath, Swaine & Moore, is primary signatory of the first letter. The Schwarz letter urges Congress to improve shareholder protections in the wake of Citizens United v. FEC. Among other professional accomplishments in private practice, Mr. Schwarz is an expert in campaign finance law and was Chair of the New York City Campaign Finance Board. Mr. Schwarz and other leaders of the bar signed the letter as former and present legal counsel to corporations and associations.
Ciara Torres-Spelliscy, Counsel at the Brennan Center and author of “Corporate Campaign Spending: Giving Shareholders A Voice” (which argues for the U.S. to change its securities laws to improve transparency and accountability of corporate political spending), is signatory of the second letter. Both letters urge passage of the Shareholder Protection Act (H.R. 4790) as a key reform after Citizens United.
Read the letters here.
Tags: Campaign Finance Reform, Disclosure
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