September, 16 2013, 02:14pm EDT

Upcoming Case Tests Whether U.S. Supreme Court Will Allow Increased Flow of Corrupting Money in Federal Elections
McCutcheon v. Federal Election Commission Poses Challenge to Limits on Direct Political Donations
WASHINGTON
Note: On July 25, U.S. Reps. Chris Van Hollen (D-Md.) and David Price (D-N.C.) submitted an amicus curiae, or "friend-of-the-court," brief to the U.S. Supreme Court in defense of the Federal Election Commission in this case. Public Citizen Attorney Scott Nelson and former U.S. Solicitor General Seth Waxman are leading their team of attorneys.
McCutcheon v. Federal Election Commission (FEC), a case whose impact on our political system could be as damaging as Citizens United, is headed for the U.S. Supreme Court this fall, and it could dramatically boost the corrupting influence of the wealthy over candidates in federal elections.
In the case, the justices will consider whether to eliminate the limit on the total sum that people can give directly to candidates and political parties in a single election. The current overall limit for an individual making direct contributions to parties, political action committees (PACs) and federal candidates is $123,200 per two-year election cycle, but a win for the challengers in McCutcheon could allow total contributions above $7 million.
The case is being heard just a few years after the highly controversial Citizens United v. Federal Election Commission, in which the court gave corporations the green light to spend unlimited sums to influence elections. That decision, the biggest game-changer to date in a long-term effort by corporate interests to kill campaign finance laws, led to unprecedented spending by the wealthy and corporations in the 2010 midterm congressional elections and last year's presidential elections. It also sparked a robust movement, led in part by Public Citizen, for a constitutional amendment to overturn the decision. Depending on how the justices rule, McCutcheon could be the next game-changer.
The McCutcheon suit was brought by Alabama businessman Shaun McCutcheon and the Republican National Committee (RNC). In challenging the current law, McCutcheon says he made direct contributions to 16 federal candidates in recent elections and wanted to give the same amounts to 12 more. Those additional contributions would have put him over the aggregate limit for candidate contributions in an election cycle, which in 2012 was $46,200 to federal candidates, made up of individual contributions of no more than $2,600 (or $5,200 in a two-year election cycle comprising a primary and general election). He also says he wanted to give $25,000 to each of the three Republican national political committees, which would have put him over the $70,800 limit then in effect for party committees.
McCutcheon, together with the RNC, is claiming that these aggregate limitations violate the First Amendment and that if contributions at the current base limits of $2,600 per election for individual candidates and $32,400 a year per party committee are not enough to corrupt politicians (a standard by which the Supreme Court has judged such cases), then a larger number of contributions in those amounts also would not lead to corruption. The RNC says it would receive additional contributions from people like McCutcheon if it were not for the aggregate limits.
The challengers' argument ignores the close relationship among the political parties and their candidates, and the way they work hand-in-hand to ask for and receive donations from large contributors. Already, candidates and parties routinely form joint fundraising committees to solicit the largest contributions permitted by the aggregate limits, which are then divided up among the candidates and party committees making the ask. Without the aggregate limits, officeholders, candidates and party officials could solicit multimillion-dollar donations, to be divided up among the parties' various national and state committees and candidates, and used for their common benefit.
"Citizens United is bad enough in allowing big-money interests to spend large sums in support of candidates," said Public Citizen attorney Scott Nelson, who is representing two members of Congress as amici curiae in the case. "But at least those spenders must maintain an arm's length distance from the candidates and parties. If McCutcheon and the RNC prevail, political parties and their candidates would be able to ask for, and receive, huge donations directly from contributors, maximizing the opportunities for corrupt bargains to be struck."
Legal precedent squarely on the side of the FEC
While both this case and the 2010 Citizens United ruling involve election-related spending, the key legal principles governing the cases are very different. Citizens United addressed independent political expenditures--money spent for things like broadcast ads and fliers. These expenditures must be made without the direct cooperation or consultation of a candidate, a candidate's authorized committee or a political party. McCutcheon deals with directcontributions to candidates, political parties and PACs--that is, checks written to the candidate's campaign.
This distinction is critical to the First Amendment question the case poses. The Supreme Court has found that political expenditures are a form of free speech. But, the court said in its 1976 decision in Buckley v. Valeo, because "the transformation of contributions into political debate involves speech by someone other than the contributor," limits on contributions "entail only a marginal restriction" on speech.
"The good news here is that the court's precedents are very much on our side," Nelson said. "The Supreme Court has repeatedly said, even in Citizens United itself, that it views limits on political contributions much more favorably than limits on political spending."
In their amicus brief, Reps. Chris Van Hollen (D-Md.) and David Price (D-N.C.) argue that the fundamental question in the case is whether the allowance of larger individual contributions would create the reality or appearance of corruption--the prevention of which is a compelling government interest--and they show that previous Supreme Court decisions say the answer is yes:
In every case in which this Court has considered federal contribution limits, it has upheld those limits because they serve an interest the Court has always deemed sufficiently important to justify campaign finance regulation: preventing corruption and the appearance of corruption. Very large political contributions create both the risk that officeholders and potential officeholders will be tempted to forsake their public duties and the opportunity for corrupt bargains. They thus threaten to foster both actual corruption and, what may be just as damaging, its appearance. Buckley, 424 U.S. at 26-27; accordCitizensUnited, 558 U.S. at 345, 356-357.
The brief also notes that seven Supreme Court justices, including Justice Anthony Kennedy, who wrote the Citizens United decision, voted to uphold the federal ban on soliciting large contributions in McConnell v. Federal Election Commission:
As this Court recognized in McConnell, the prospect of candidates soliciting and receiving multi-million dollar checks from donors creates both the risk of corruption and the appearance of corruption. To be sure, these funds might not all be expended directly on the candidate's own campaign. But this Court has not required a direct financial benefit to the candidate's own campaign committee to recognize the potential for corruption or its appearance when a contributor makes a large donation at a candidate's request. It is enough that the contribution benefits the party and its candidates, directly satisfying the request. Thus, in McConnell, seven Justices held that solicitation of very large contributions for national parties presented corruption concerns regardless of how those contributions were ultimately used.
As Public Citizen's brief concludes: "Permitting the parties and their candidates to solicit and receive contributions of millions of dollars from individual donors would again foster the appearance that our officeholders and our government are for sale. ... This [c]ourt must not countenance, let alone bring about, that result."
Breaking down the numbers
The impact of a decision for the challengers would be extreme. The Federal Election Campaign Act's longstanding aggregate limits currently impose a cap of $123,200--more than double median household income--on the amounts individuals can contribute directly to federal candidates, political parties and PACs during a two-year election cycle. If the Supreme Court were to strike down the aggregate donation limit in McCutcheon, a single wealthy individual could give up to $3.6 million (70 times the median household income) to one party and all its federal candidates per election cycle. He or she could theoretically give another $3.6 million to the other party and give $5,000 each to an unlimited number of (PACs).
The $123,200 aggregate donation limit is a combination of a $48,600 limit on contributions to federal candidates and a $74,600 limit on gifts to all PACs and parties.
An individual now may give up to $48,600 to federal candidates during the upcoming election cycle, but may give only up to $5,200 per election cycle ($2,600 during the primary and $2,600 during the general election) each to an individual federal candidate. Similarly, within the $74,600 overall limit on contributions to parties and PACs, an individual can give no more than $5,000 per year to any one PAC, $10,000 per year to any one state party committee, and $32,400 per year to any national party committee (of which each of the major parties has three: its national committee and its congressional and senatorial campaign committees). Most of these limits are adjusted for inflation between election cycles. A victory for McCutcheon would maintain the current limits on how much an individual may give to each candidate, party and PAC, but it would remove aggregate limits on how many of those donations one can make.
Without the limits, an individual could give $32,400 to each national party committee each year. For a person who gave only to one party, that would be $97,200 a year (between the party's national committee and its congressional and senatorial committees), or $194,400 over two years, compared to the maximum of $74,600 that you could give to all party committees and PACs in a two-year period now. The same contributor could, on top of that, give $10,000 to each of the party's state party committees each year, for another million dollars over a two-year period, and $5,200 to each of the party's federal candidates, another $2,438,800, for a grand total of over $3.6 million. The same contributor could also give the same amount to the other party, plus $5,000 each to an unlimited number of PACs.
The public opposes the corrupting influence of corporations and the wealthy in politics
A relatively small number of people use contributions to maximize their leverage over elected officials. All told, around 1,700 donors gave the maximum permitted amount to committees of the major parties in the 2012 election cycle, accounting for more than $100 million in contributions. Almost 600 reached the aggregate limit on contributions to federal candidates.
Many more people oppose the corrupting influence of large donors on our government. A February 2013 YouGov poll found 44 percent of Americans think the 2012 election cycle's aggregate limit of $46,200--raised to $48,600 this cycle--to federal candidates was already too high. Eighteen percent think it was just right, and just 12 percent think there should be no limit.
A 2012 Brennan Center for Justice survey found that 69 percent of respondents disapproved of the Citizens United decision, making it one of the most unpopular Supreme Court decisions in history.
Before the Citizens United decision, the idea of money equaling speech was largely supported by public opinion, by a margin of 56-37 percent, according to 2009 polling by Gallup and the First Amendment Center. Once Americans got to see the effects big money had on politics, there was a huge shift in public opinion. Polling done by YouGov in 2013 shows that Americans now overwhelmingly reject the notion that money is equivalent to speech, by a margin of 55 to 23 percent.
Accordingly, public confidence in the Supreme Court has dropped significantly, with a recent Rasmussen poll finding only 28 percent of Americans have a favorable view of the court.
Both the court's precedents and a proper concern for the court's legacy and legitimacy point to only one outcome: a decision upholding the aggregate contribution limits as a bulwark against corruption.
Public Citizen is a nonprofit consumer advocacy organization that champions the public interest in the halls of power. We defend democracy, resist corporate power and work to ensure that government works for the people - not for big corporations. Founded in 1971, we now have 500,000 members and supporters throughout the country.
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Abortion Rights Groups Bring 'People's Voice' to Florida Supreme Court, Demanding End to 15-Week Ban
"The people of Florida have said over and over that their right to control their own bodies and make their own healthcare decisions should remain a protected right in the Florida Constitution," said one advocate.
Sep 08, 2023
Abortion providers and reproductive rights advocates demanded that that Florida Supreme Court consider "the will and the well-being of the people" in the state on Friday as an attorney for the ACLU argued before the court that it should block the 15-week abortion ban signed into law by Republican Gov. Ron DeSantis last year.
The court heard oral arguments in Planned Parenthood of Southwest and Central Florida, et al. v. State of Florida, et al., in which the reproductive rights organization has argued that the 15-week ban—as well as a six-week ban signed by DeSantis earlier this year, which would go into effect if the current law is upheld—violates the state constitution.
Whitney White, staff attorney for the ACLU Reproductive Freedom Project, represented the plaintiffs and argued before the court that Floridians have repeatedly affirmed that the right to obtain abortion care is protected by the the state constitution's privacy clause, which was added to the document via a referendum in 1980.
"In 2012," noted the ACLU, "voters overwhelmingly rejected Amendment 6, which would have taken those abortion protections away."
The group argued that the language in the constitution and those votes—along with a poll taken last year that showed two-thirds of Floridians support abortion rights—demonstrate that the Supreme Court must block House Bill 5, the 15-week ban.
In court, White said that for more than a year, H.B. 5 has been "violating fundamental rights and subjecting pregnant Floridians to serious and unnecessary risks to their health and indeed their lives."
"Now the state is asking this court not only to allow these harms to continue, but to in fact hold that there is no protection for abortion under the Florida Constitution whatsoever, and indeed hold that there is no protection for any decisional privacy rights at all," she said.
She told the justices that doctors across the state "are finding their hands tied by H.B. 5, and it is forcing them to wait for patients who are experiencing treatable medical pregnancy complications to deteriorate to the point of, for example, experiencing life-threatening conditions like sepsis before providers can intervene and feel confident that they can provide care."
"In another case," White said, "a provider was forced to deny care to a 14-year-old rape survivor—a child who had already been traumatized by the assault and now had to bare the additional trauma of continuing a pregnancy against her will."
"These injustices have been ongoing for a year, and if this court doesn't step in now there's an even more dangerous six-week ban waiting in the wings," she continued.
By sharing the stories of doctors and patients while defending a viewpoint held by the majority of the Florida population, White brought "the people's voice" to the state Supreme Court, said Stephanie Fraim, president and CEO of Planned Parenthood of Southwest and Central Florida.
"Across the state, Floridians are outraged that the government continues to interfere in their personal medical decisions," said Fraim. "The people of Florida have said over and over that their right to control their own bodies and make their own healthcare decisions should remain a protected right in the Florida Constitution. Moreover, the Florida Supreme Court must respect the decades of precedent that make this law clearly unconstitutional. Floridians understand that this ban is a gross overreach into their lives, and they will not stand for it. We will continue to fight for our reproductive rights through all possible avenues."
DeSantis—who is also running for the GOP's presidential nomination in 2024—appointed five of the seven justices to the Florida Supreme Court; only one justice was appointed by a Democratic governor. During the oral arguments, Chief Justice Carlos Muniz referred to Roe v. Wade at one point as "an abomination."
Considering the makeup of the court, abortion rights advocates have expressed fear that the justices are likely to uphold H.B. 5 and allow a six-week ban to be enforced, which would put abortion almost entirely out of reach across the Southeast, remaining legal only before 12 weeks of pregnancy in North Carolina and six weeks, before many people know they're pregnant, in Florida, Georgia, and South Carolina.
Like advocates in states including Arizona and Nebraska, rights groups in Florida are working to place a referendum on abortion access on 2024 election ballots.
"Florida prides itself on individual freedom without government interference and abortion bans directly contradict who we are," said Kelly Flynn, president and CEO of A Woman's Choice of Jacksonville. "This 15-week abortion ban undermines the care we provide to patients who come to our clinic, often under complex and difficult circumstances. Many patients in Florida aren't able to receive an abortion by 15 weeks, let alone six weeks, due to financial obstacles, logistical hurdles, and navigating overlapping policies designed to make it harder to provide and access care."
"We remain committed to providing abortion care to Floridians," said Flynn, "and attaining abortion justice for all."
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With Funds Opposed by GOP, IRS to Target Ultrawealthy Tax Delinquents
"This news stands in stark contrast to the approach taken by House Republicans, who want to allow wealthy tax cheats to continue business as usual," said U.S. Senate Finance Committee Chair Ron Wyden.
Sep 08, 2023
The U.S. Internal Revenue Service on Friday won praise from congressional Democrats and progressive groups for announcing "a sweeping, historic effort to restore fairness in tax compliance by shifting more attention onto high-income earners, partnerships, large corporations, and promoters abusing the nation's tax laws."
The IRS effort is enabled by some of the $80 billion in funding for the agency included in the Inflation Reduction Act (IRA), which President Joe Biden signed into law last year. About a quarter of that money is set to be clawed back as part of his recent deal with congressional Republicans to temporarily suspend the nation's debt limit.
The agency intends to contact about 1,600 people with incomes above $1 million and over $250,000 in tax debt, building on an earlier push that collected $38 million from more than 175 high-income earners. It also aims to expand a pilot program targeting large partnerships, with help from artificial intelligence (AI). The IRS plans to launch examinations of 75 partnerships with an average of over $10 billion in assets—including hedge funds, law firms, and real estate investors—this month.
"This new compliance push makes good on the promise of the Inflation Reduction Act to ensure the IRS holds our wealthiest filers accountable to pay the full amount of what they owe," IRS Commissioner Danny Werfel said in a statement. "The years of underfunding that predated the Inflation Reduction Act led to the lowest audit rate of wealthy filers in our history. I am committed to reversing this trend, making sure that new funding will mean more effective compliance efforts on the wealthy, while middle- and low-income filers will continue to see no change in historically low pre-IRA audit rates for years to come."
"The nation relies on the IRS to collect funding for every critical government mission—from keeping our skies safe, our food safe, and our homeland safe. It's critical that the agency addresses fundamental gaps in tax compliance that have grown during the last decade," he added. "There is a sea change taking place at the IRS in every aspect of our operations. Anchored by a deep respect for taxpayer rights, the IRS is deploying new resources towards cutting-edge technology to improve our visibility on where the wealthy shield their income and focus staff attention on the areas of greatest abuse."
The commissioner pledged that "we will increase our compliance efforts on those posing the greatest risk to our nation's tax system, whether it's the wealthy looking to dodge paying their fair share or promoters aggressively peddling abusive schemes. These steps are critical for the future of the nation's tax system."
Americans For Tax Fairness was among the organizations that celebrated the announcement on social media, declaring that "this is what happens when you give the IRS the funding it needs to catch rich tax cheats."
Groundwork Action highlighted that the agency's new moves are "all possible thanks to additional resources from the Inflation Reduction Act," while its sister organization Groundwork Collaborative said, "Just think of what we can accomplish with a fully funded IRS and a tax code that makes corporations and the wealthy pay their fair share."
However, such policies are highly unlikely to pass in the current Congress, with many Republicans who continue to not only oppose IRS funding but also push for tax bills designed to serve rich individuals and companies.
In addition to welcoming the "historic crackdown on rich tax cheats," Congressman Bill Pascrell (D-N.J.) said, "Reminder: every single Republican in Congress voted against this crackdown on big business tax cheats."
Senate Finance Committee Chair Ron Wyden (D-Ore.) similarly praised the IRS while calling out the congressional GOP.
"Today's announcement from the IRS makes clear that wealthy tax cheats are no longer allowed to play by a different set of rules than everyday Americans," he said in a statement. "I'm pleased to see the IRS using the enforcement funding from the Inflation Reduction Act to crack down on large, complex partnerships using groundbreaking technology—this is a big deal and represents a fresh approach to taking on sophisticated tax cheats."
"This action goes to the heart of Democrats' effort to ensure the wealthiest are paying their fair share so Medicare and Social Security can be protected and strengthened, education can be improved, and more investments can be made in priorities Americans are demanding," he added. "This news stands in stark contrast to the approach taken by House Republicans, who want to allow wealthy tax cheats to continue business as usual, paying little to no tax and asking middle-class taxpayers to foot the bill."
The New York Timesreported Friday that "the fight over IRS funding is continuing, as the House and the Senate try to agree on spending legislation to avert a possible government shutdown at the end of the month. Senate Democrats want to hold the base budget of the IRS steady while holding on to some of the Inflation Reduction Act money that lawmakers had agreed to rescind as part of the debt limit deal, while House Republicans are pushing for far deeper cuts that would eat into the tax agency's enforcement budget."
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Rolling Medicaid Purge Called 'Largest Concentration of Health Insurance Loss' in US History
One activist warned that "this is going to become the healthcare legacy of the Biden presidency" if his administration doesn't act.
Sep 08, 2023
States across the U.S. have stripped nearly 6 million people of Medicaid coverage over just the past several months, creating what one healthcare activist and researcher described as "the largest concentration of health insurance loss in American history."
"This is happening in red states like Texas, Utah, or Idaho, where we expect this brutal Medicaid retrenchment," Beatrice Adler-Bolton, co-author of " Health Communism" and co-host of the popular "Death Panel" podcast, said in a statement on Friday.
"But there are huge amounts of procedural disenrollments happening in California. It's happening in Rhode Island and California and New Mexico," noted Adler-Bolton. "This is a year-long process, and it's just getting started. It's moving slowly, and it's more dangerous this way. This process is rolling, so the data is slow. We're not going to have a full picture of how to compare states against each other for months and months."
The latest data compiled by KFF—which includes publicly reported figures from 48 states and Washington, D.C.—shows that at least 5.7 million people have lost Medicaid coverage since April, when states began eligibility checks and disenrollments that were paused during the coronavirus pandemic.
A bipartisan deal reached by Congress and approved by President Joe Biden late last year lifted the pandemic-era continuous coverage requirements that prevented states from kicking people off Medicaid during the public health emergency. The policy led to record Medicaid enrollment, and its termination could cause upwards of 15 million people—including millions of children—to lose coverage under the program.
According to KFF, 73% of the people disenrolled from Medicaid so far have lost coverage for procedural reasons—such as a failure to return paperwork on time or jump through other, often confusing, bureaucratic hoops—not because they were deemed ineligible due to their income or other factors.
"High procedural disenrollment rates are concerning because many people who are disenrolled for these paperwork reasons may still be eligible for Medicaid coverage," KFF explained earlier this week. "Some states, such as Maine, have temporarily paused procedural terminations for some enrollees while the states address problems in the renewal process that lead to increased procedural disenrollments."
"Many of these individuals did not receive any notice of denial, leaving them unaware of their coverage termination."
Texas has removed more people from Medicaid than any other state, disenrolling around 617,000 in just a few months.
Late last month, the state's entire Democratic congressional delegation implored the Centers for Medicare and Medicaid Services (CMS) to intervene and ensure that Texas' Republican-dominated government complies with federal rules to "prevent the catastrophic loss of coverage."
The Democratic lawmakers, led by Reps. Lloyd Doggett and Greg Casar, cited a July whistleblower letter that issued dire warnings about Texas' Medicaid purge.
The whistleblowers, who identified themselves as employees of the Texas Health and Human Services Commission, wrote that roughly two weeks after the mass disenrollments began, "we started receiving numerous emails from agency leadership indicating that thousands of individuals had been erroneously denied coverage."
"As a result of the initial process we ran in April, we were informed that approximately 80,000 individuals lost coverage erroneously, including several thousand pregnant women who required critical services during their pregnancies or essential post-pregnancy care coverage," the whistleblowers wrote. "Additionally, we received subsequent emails from agency leadership indicating that several thousand elderly individuals were slated to lose medical coverage, which previously paid a portion of their Medicare Part B expenses."
"Many of these individuals did not receive any notice of denial," they added, "leaving them unaware of their coverage termination until their social benefits were reduced to cover the premium payments."
Shortly after the whistleblower allegations emerged, CMS sent letters to all 50 states noting that it had "learned of additional systems and operational issues affecting multiple states, which may be resulting in eligible individuals being improperly disenrolled."
One problem identified by CMS could be having a disproportionate impact on kids, the agency said in a statement.
"CMS believes that eligibility systems in a number of states are programmed incorrectly and are conducting automatic renewals at the family level and not the individual level, even though individuals in a family may have different eligibility requirements to qualify for Medicaid and [the Children's Health Insurance Program]," the agency said. "For example, children often have higher eligibility thresholds than their parents, making them more likely to be eligible for Medicaid or CHIP coverage even if their parents no longer qualify."
Speaking on the condition of anonymity, one Biden administration toldThe Washington Post that the number of children affected by the programming issue "is likely in the millions."
CMS has also warned that long call center times in at least 16 states could be causing people to give up on trying to renew their coverage.
While Republican-led such as Texas and Florida have moved aggressively to gut their Medicaid rolls, drawing outrage and lawsuits from residents, California, New York, and other blue states have also collectively removed hundreds of thousands of people from the program, often for procedural reasons—indicating a nationwide crisis.
Adler-Bolton warned Friday that "this is going to become the healthcare legacy of the Biden presidency" if his administration doesn't act quickly.
"When we look at [Affordable Care Act] enrollment expansion, 13 million people added in 2014. We're going to see a contraction of a similar amount—if not 10 million more—in the course of a calendar year," said Adler-Bolton. "CMS has the authority to halt procedural determinations today. We're only a few months into this and 74% are procedural determinations. CMS should be saying pause... It's their responsibility to do it."
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