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Critics Say New Revelations in Judicial Record Bolster Case for Thomas Impeachment
"The lack of options for real accountability highlights why we so desperately need robust judicial ethics reform—now," said one ethics watchdog.
Apr 20, 2023
Calls for impeachment proceedings against U.S. Supreme Court Justice Clarence Thomas intensified Thursday amid new reporting that revealed several specific conflicts of interest related to the justice's financial ties to right-wing real estate magnate and Republican donor Harlan Crow.
Following a bombshell report by ProPublica earlier this month regarding trips Thomas took on Crow's private jet, his superyacht, and to his properties in New York and Texas which had not been included in financial disclosures as required by federal law, the conservative justice brushed off criticism by saying he benefited only from "personal hospitality from close personal friends" and that Crow "did not have business before the court."
While also denying any ethics breaches, Crow, who has donated at least $13 million to Republican politicians, acknowledged in an interview with The Dallas Morning News that "every single relationship... has some kind of reciprocity."
The truth of that admission became clearer Thursday as The Guardian reported on findings in the judicial record, which showed Crow's ties to right-wing groups that have been involved in Supreme Court cases since Thomas was first confirmed to the bench in 1991.
The Texas billionaire was part of anti-taxation group Club for Growth's "founders committee," which helped direct its policymaking, in 2003 when the group filed an amicus brief challenging the McCain-Feingold Act, a campaign finance reform law.
"DOJ is the only agency positioned to truly hold Thomas accountable, because Thomas's conduct is more than unethical—it's likely criminal."
Thomas wrote a blistering dissent when the court permitted the law to stand against the wishes of Club for Growth and other right-wing groups. As The Guardian reported, at this point Crow had already "showered Thomas with several lavish gifts" including "a 1997 flight from Washington to northern California on Crow's private jet to attend an all-male retreat at Bohemian Grove" and a $150,000 donation to create a wing dedicated to the justice at a library in Savannah, Georgia.
Crow also held seats on the boards of at least three right-wing organizations that have written amicus briefs in Supreme Court cases; is a longtime trustee of the conservative American Enterprise Institute, which has filed numerous supporting briefs; and is on the board of the Hoover Institution, which filed an amicus brief challenging student debt relief.
Thomas' involvement with Crow raises questions not only about whether the billionaire has "business before the court," said Democratic Sen. Sheldon Whitehouse (D-R.I.). "Nowadays it's consorting with those... whose business is the court—who are deeply enmeshed in the efforts to capture and corrupt the court."
Several progressives have demanded that Thomas be impeached as the latest alleged ethics breach has come to light—amid ongoing outcry regarding the justice's refusal to recuse himself from cases involving the January 6, 2021 insurrection and the 2020 election, which his wife, right-wing activist Ginni Thomas, pushed to overturn.
Following Thursday's revelations, Citizens for Responsibility and Ethics in Washington (CREW) doubled down on a call for an investigation into Thomas both by the Supreme Court and by the U.S. Department of Justice (DOJ).
"DOJ is the only agency positioned to truly hold Thomas accountable, because Thomas' conduct is more than unethical—it's likely criminal," said CREW.
The group acknowledged that "accountability through the legal system in this case is likely to be slow and limited," and suggested Congress hold impeachment proceedings against Thomas.
While the Republican-controlled House is unlikely to pass articles of impeachment, Senate Judiciary Committee Chair Dick Durbin (D-Ill.) announced this month that he plans to hold a hearing on May 2 regarding ethics at the Supreme Court, and on Thursday called on Chief Justice John Roberts to testify.
"The time has come for a new public conversation on ways to restore confidence in the court's ethical standards. I invite you to join it, and I look forward to your response," Durbin wrote in a letter to Roberts.
Democrats currently lack subpoena power on the committee due to Sen. Dianne Feinstein's (D-Calif.) absence, which leaves them without a majority. The 89-year-old lawmaker is out indefinitely on medical leave and the GOP this week blocked an effort to temporarily replace her on the panel.
"The lack of options for real accountability highlights why we so desperately need robust judicial ethics reform—now," said CREW on Thursday. "It is outrageous that the Supreme Court doesn't have a binding code of conduct, so there's no way to enforce justices' compliance with ethics and recusal rules."
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'New Hampshire Rebellion' Kicks Off Fight Against Money in Politics
Democracy advocates trek across state for campaign finance reform
Jan 11, 2014
Staging what they have dubbed "the New Hampshire Rebellion," a group lead by Harvard intellectual and activist Lawrence Lessig set out for a 185 mile journey across the "live free or die" state on Saturday, calling attention to what they see as one of the most important issues in U.S. politics today--the dire need for campaign finance reform.
"On Saturday, we begin a walk across the state of New Hampshire, to launch a campaign to bring about an end to the system of corruption that we believe infects DC. This is the New Hampshire Rebellion," states Lessig in a recent op-ed.
The march will pay homage to a similar attempt by famed activist Dorris Haddock, or "Granny D," who, fifteen years ago at the age of 88, marched across the United States from Los Angeles to Washington DC with a sign reading "Campaign Finance Reform" across her chest.
"Haddock is credited with helping to galvanize public will around the McCain-Feingold Campaign Finance Reform Act," Al Jazeera America reports, "which was signed into law in 2002." However, two months after Haddock passed away at the age of 100, the Supreme Court ruled in favor of big donors, and the politicians who use them, in Citizens United vs. Federal Election Commission, "which undid many of the limits put in place on campaign finance and heralded a new era in unprecedented spending by special interests and corporations."
Lessig said he expects over 100 people to join him along the way as they stop in over a dozen towns over the course of two weeks. The group will hold events and public discussions centered around the issues of big money in politics--and how to cleanse such influence from the democratic process.
Citing the importance of New Hampshire in U.S. presidential elections, being the site of the first presidential primary, the goal of the walk will be to convince voters to pressure candidates on the issue of campaign finance reform.
"Along the way, we will recruit everyone we can to do one thing: We want them to ask every presidential candidate at every event between now and January 2016, this one question: 'How will YOU end the system of corruption in DC?'" Lessig writes.
Lessig continues:
A system of corruption, not particular crimes. Our focus is not Rod Blagojevich; it is the system of campaign funding in which fundraising is key, and the funders represent the tiniest fraction of the 1%. That system, we believe, corrupts this democracy. (We, and 71% of Americans according to a recent poll.) And until that system changes, no sensible reform on the right or the left is possible. Politicians may continue to play this fundraising game. We believe that New Hampshire can change it.
As this question gets asked, we will record the responses. Literally. And post them. And through allied campaigns, we will put pressure on the candidates to surface this issue -- and if we're lucky -- make it central to their campaigns.
The walk begins in Dixville Notch, NH, the place the first 2016 presidential ballots will be cast and will end in Nashua, NH, on the day Granny D was born.
The activists embark Saturday January 11th, exactly one year after the the suicide of internet activist Aaron Swartz, a close friend and colleague of Lessig's.
"I wanted to find a way to mark this day," Lessig writes. "I wanted to feel it, as physically painful as it was emotionally painful one year ago, and every moment since. So I am marking it with the cause that he convinced me to take up seven years ago and which I am certain he wanted to make his legacy too."
Lessig is asking anyone who can to join the walk and sign an online petition to pressure candidates to take on the issue.
Lessig talks about the New Hampshire Rebellion:
Lawrence Lessig talks about the New Hampshire Rebellion (Animated)Prof. Lawrence Lessig, Director of the Edmond J. Safra Center for Ethics at Harvard University, and founder of the Rootstrikers, ...
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Move to Amend: Citizens United is Just the Tip of the Iceberg
It's been three years since the Supreme Court issued its outrageous decision in Citizens United vs. FEC, overturning the flimsy campaign finance protections afforded under McCain-Feingold law. The case opened the floodgates to billions of dollars perverting our elections, much of it completely unreported, and some amount even coming from foreign corporations and governments. The Court literally legalized bribery, and wealthy individuals and special interests took full advantage of it.
Jan 20, 2013
It's been three years since the Supreme Court issued its outrageous decision in Citizens United vs. FEC, overturning the flimsy campaign finance protections afforded under McCain-Feingold law. The case opened the floodgates to billions of dollars perverting our elections, much of it completely unreported, and some amount even coming from foreign corporations and governments. The Court literally legalized bribery, and wealthy individuals and special interests took full advantage of it.
At the crux of the crisis are two core legal doctrines. One is "corporate personhood," a court-created precedent that illegitimately gives corporations rights that were intended for human beings. The other is "money equals free speech."
An amendment to the US Constitution is the only lasting solution to this problem. The only amendment worth fighting for MUST address both doctrines. As a quick refresher, here is are some examples of we must abolish ALL corporate constitutional rights:
- 1st Amendment Free Speech rights. Corporations use these rights, meant to protect human beings from the power of the state, to influence elections through political "contributions" (more like "investments"); to advertise for guns, tobacco and other dangerous products over the objections of communities; to avoid having to label genetically modified foods or food laced with hormones.
- 4th Amendment Search and Seizure rights. Corporations have used these rights to avoid subpoenas for unlawful trade and price fixing, and to prevent citizens, communities and regulatory agencies from stopping corporate pollution and other assaults on people and communities.
- 5th Amendment Takings, Double Jeopardy and Due Process corporate rights. Corporations must be compensated for property value lost (e.g. future profits) when regulations are established to protect homeowners or communities. Corporations cannot be retried after a judgment of acquittal in court. The granting of property to a corporation by a public official cannot be unilaterally revoked by a subsequent public official or Act of Congress.
- 14th Amendment Due Process and Equal Protection corporate rights. These rights, originally enacted to guarantee equal protection for African Americans, were gradually extended to corporations by the courts. Corporations have used these rights to build chain stores and erect cell towers against the will of communities; oppose tax and other public policies supporting local businesses over multinational corporations; and resist democratic efforts to prevent corporate mergers and revoke corporate charters through citizen initiatives.
- Commerce Clause-related corporate rights. Corporations have used this section of the Constitution (Art 1, Sec 8) to ship toxic waste from one state to another over the "health, safety, and welfare" objections of communities - claiming the waste isn't actually "waste" but "commerce."
- Contracts Clause-related corporate rights. The Supreme Court ruled in Dartmouth vs. Woodward (1819) that a corporation is as a party in a private contract based on the Contracts Clause (Art 1, Sec 10) rather than being a creature of public law. Even though the state creates a corporation when it issues a charter, that state is not sovereign over the charter, merely a party to the contract. Thus, corporations became "private contracts" with the state and, therefore, shielded from many forms of control by We the People.
Since the problem of corporate constitutional rights is multidimensional, the solution must be comprehensive.
One hundred and sixty years ago, those who believed the section of the Constitution (Art 4, Sec 2) defining people as property (slavery) was fundamentally immoral didn't call for ending one or two dimensions of slavery. They didn't organize to establish legislation through Congress, or a Slavery Protection Agency, nor ask slaveholders to sign a voluntary code of conduct to treat slaves a little less harshly. They called for abolition of the institution of slavery.
And today, the Move To Amend coalition suggests that we should not limit our vision and actions. Yes corporate money in elections is a problem. So let's make sure our solution actually gets to the root causes.
Let's set out to amend the constitution in a way that abolishes all rights wrongly granted to the corporate form over the last two centuries. Let's put an end to the institution of corporate constitutional rights itself.
Nothing less is worth the considerable time and learning, grit and energy, required to amend the Constitution.
Why not make the result worth the effort?
To get involved in the grassroots movement to amend the Constitution, sign the petition at www.MoveToAmend.org.
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Voters Lose, Secret Money Wins (Again) in Court's Campaign Finance Decision
In a setback for those trying to curb the secrecy behind election year 'issue ads' funded by shadowy special interests groups, the DC Circuit Court today overturned a lower federal court's ruling which made public disclosure of such spending a statutory requirement.
Sep 18, 2012
In a setback for those trying to curb the secrecy behind election year 'issue ads' funded by shadowy special interests groups, the DC Circuit Court today overturned a lower federal court's ruling which made public disclosure of such spending a statutory requirement.
The earlier decision, in the case Van Hollen v. Federal Election Commission, stipulated that nonprofit 501(c)(4) organizations like Americans for Prosperity and Karl Rove's Crossroads GPS as well as 501(c)(6) associations like the Chamber of Commerce and the American Petroleum Institute would have to disclose their donors.
The 3-judge panel today said the previous judge was wrong when he determined that the McCain-Feingold campaign finance bill intended for more complete financial disclosure from such groups and argued that because of the Supreme's Court decision in Citizens United vs. FEC, the judge should review and reevaluate his decision.
"This decision dooms voters' last chance of finding out who is intent on pumping millions of dollars into the elections. With 49 days to go, there's still no sheriff in town, it's the wild, wild west." --Bob Edgar, Common Cause
US Congressman Christopher Van Hollen (D-MD), who filed suit in the original case, issued a statement saying the DC Circuit Court's decision "struck a blow against transparency in the funding of political campaigns and reinstated the flawed regulation that rendered the disclosure requirements meaningless - made clear by the fact that millions of dollars of special interest money has flooded the airwaves with ads from anonymous sources."
The court's action, he added, "will keep the American people, for the time being, in the dark about who is attempting to influence their vote with secret money."
Disclosure and campaign finance reform advocates also slammed the decision.
"Today's decision by the D.C. Circuit Court overturned one of the few glimmers of hope in campaign finance disclosure law," said Melanie Sloan, executive director for Citizens for Responsibility and Ethics in Washington. "Voters are being pummeled by campaign ads with no way to discover who is really trying to influence our elections."
Bob Edgar, president of Common Cause, said that big-money and corporate interests--who are spending millions to influence the outcome of the elections--were busy celebrating the decision, but that the "big loser" in the decision was the American people.
"This decision dooms voters' last chance of finding out who is intent on pumping millions of dollars into the elections. With 49 days to go, there's still no sheriff in town, it's the wild, wild west," he said.
"People and companies making six- and seven-figure investments in candidates and causes will want something in return for their money," said Edgar, acknowledging that this creates inevitable incentives to serve their interests. "That's why disclosure is so important; before we go to the polls, voters should know to whom the candidates we choose will be beholden."
And the Los Angeles Times adds:
Campaign finance reform advocates said they were not giving up, saying they still believed they had a strong argument to make at the district court level if the FEC chooses to defend the current rules.
"The Court of Appeals got it wrong," said Fred Wertheimer, president of Democracy 21. "There is no way Congress enacted a statute to result in no disclosure of contributors when the statute calls for all disclosure of contributors."
Wertheimer said his group would also continue to press the Internal Revenue Service to scrutinize the activities of groups such as Crossroads GPS that claim to be nonprofit social welfare organizations.
But he admitted that in the prospect of forcing such organizations to reveal their donors this year has been effectively shut down.
"They'll go back to doing electioneering and claim that their campaign ads are not campaign ads," Wertheimer said.
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Never Mind Super PACs: How Big Business Is Buying the Election
On January 27, 2010, one year into his term, President Barack Obama used the occasion of his State of the Union address to issue a warning. The Supreme Court had just opened the "floodgates for special interests--including foreign corporations--to spend without limit in our elections." He was speaking about the ruling in Citizens United v. Federal Election Commission, in which the Court struck down nearly a century of law, granting corporations vast new leeway to influence the outcome of elections.
Aug 31, 2012
On January 27, 2010, one year into his term, President Barack Obama used the occasion of his State of the Union address to issue a warning. The Supreme Court had just opened the "floodgates for special interests--including foreign corporations--to spend without limit in our elections." He was speaking about the ruling in Citizens United v. Federal Election Commission, in which the Court struck down nearly a century of law, granting corporations vast new leeway to influence the outcome of elections.
In the months after Obama's speech, the American Petroleum Institute, an oil industry trade association that represents hundreds of multinational oil and gas companies, would demonstrate just how prescient the president's warning was.
Before Citizens United, API had gone to battle with the president over his efforts to address global warming. It took out issue ads, hired lobbyists from K Street, and financed dubious studies to claim that even the most piecemeal legislative fixes, such as the Waxman-Markey bill designed to cap carbon emissions, would lead to economic ruin. The group spent $7.3 million on federal lobbying during the year the bill was being debated.
But as the 2010 midterm elections loomed, Citizens United handed API an additional arrow for its quiver. The group could now funnel undisclosed corporate donations directly to campaign entities. Among the oil executives leading API at the time--and still to this day--was Tofiq Al-Gabsani, a registered lobbyist for the Saudi government. Al-Gabsani is the chief executive of Saudi Refining Inc., a wholly owned subsidiary of the Saudi Arabian Oil Company, the government-owned Saudi oil giant better known as Aramco.
... after Citizens United, trade associations like API--whose influential members include foreign corporations--are free to spend as they wish, unburdened by disclosure requirements.
Aramco, by means of its US subsidiary, is understood by insiders to be one of the top donors to API, where, according to the Washington Post, membership dues for the largest firms can be as much as $20 million a year. API has roughly 400 member firms, but only a small group of oil and gas industry CEOs sit on its board of directors, which oversees the trade association's major political campaigns, according to API state business filings and two former API executives. Alongside the top officials of such major American firms as ExxonMobil and ConocoPhillips, one of those directors for the past three years has been Al-Gabsani.
US law still bans foreign corporations from participating directly in elections. But after Citizens United, trade associations like API--whose influential members include foreign corporations--are free to spend as they wish, unburdened by disclosure requirements. And these groups have taken full advantage of their new freedoms. While other campaign committees, from labor unions to Super PACs, face strict transparency rules, trade associations enjoy unparalleled power to covertly manipulate elections using corporate money.
API-funded groups were a force behind the tidal wave of negative advertisements to hit Democrats in the midterms. Pennsylvania Representative Joe Sestak "voted for Pelosi's job-killing cap-and-trade plan," intoned one election-season TV ad from Americans for Tax Reform, one of several groups financed by API in 2010. Sestak's vote for a bill to put a price on carbon pollution, the ad continued, constituted "a great big tax that would make utility bills skyrocket, gas prices soar." Sestak lost his bid for the US Senate, and his Congressional seat was one of sixty-three taken by the Republicans.
The ads bankrolled by entities like API helped deliver one of the greatest midterm election upsets in American history. For the first time, outside spending groups eclipsed party spending. The young president, with his party's ranks decimated and the House flipped into the hands of the far right, was forced to abandon much of his domestic agenda.
Perhaps the most profound aspect of the Democrats' defeat that year: the window for confronting global warming all but closed. With extreme weather events convulsing the globe, 86 percent of incoming freshman Republicans signed an oil industry-sponsored pledge to oppose all climate regulation. As John Boehner lifted the House speaker's gavel, any chance of passing climate legislation collapsed. In this way, the Democrats' defeat was a resounding victory for the oil companies represented by API--and for Saudi Arabia, the world's largest exporter of crude oil.
Saudi Arabia has worked for years to obstruct progress on climate reforms. Just weeks prior to Obama's State of the Union address warning of the dangers of foreign corporate money, Mohammad Al-Sabban, a senior adviser to the Saudi government on energy policy, helped lead the opposition to a global climate accord in Copenhagen. Like many of the interest groups dependent on fossil fuels, Al-Sabban even disputed the idea that industry has contributed to global warming. "Climate is changing for thousands of years, but for natural and not human-induced reasons," he told BBC News.
* * *
Before the advent of the Roberts Court, Saudi Aramco would have been prohibited from using corporate money to influence an American election. The company's only option would have been to ask its US-based employees to make small donations to a transparent political action committee.
A 1990 Supreme Court decision, Austin v. Michigan Chamber of Commerce, required trade associations to spin off separate, highly regulated PACs if they sought to influence federal elections. These PACs could only be funded with disclosed contributions from individuals, in amounts limited by the Federal Election Commission. Trade associations were further restricted by the 2002 McCain-Feingold campaign finance reform act, which prevented corporations from airing so-called electioneering communications within sixty days of a general election. This ban encompassed sham issue ads, which attack a candidate without explicitly calling for his or her defeat--those ubiquitous commercials that go something like: "Call Senator John Smith and tell him to stop killing jobs!"
Then, in 2007, just a year after Samuel Alito replaced Sandra Day O'Connor, and only two years into John Roberts's tenure as chief justice, the Court went to work chipping away at these restrictions. That year, in Federal Election Com- mission v. Wisconsin Right to Life, the Court's conservative majority struck down the limits on corporate-funded sham issue ads. Three years later, Citizens United vastly expanded the scope of that ruling, striking down any prohibition against corporations airing election ads of any type, at any time.
In his dissent, Justice John Paul Stevens warned that the Court's logic, which put campaign spending by corporations on an equal footing with spending by individuals, would open the door to foreign influence on American elections. The decision affords "the same protection to multinational corporations controlled by foreigners as to individual Americans," wrote Stevens.
The retiring justice, in the longest dissent of his career, mocked the majority's claims that corporations are censored in American society. Had the decision been in place before World War II, he noted, Japanese propaganda broadcasts in the South Pacific would have been accorded First Amendment protections. And although Stevens continued to sound the alarm about foreign influence in speeches, lobbyists immediately recognized the ways that corporations could take advantage of the extraordinary decision.
In 2010, Cleta Mitchell, a prominent Republican election attorney who advises GOP candidates as well as corporations, began delivering a PowerPoint presentation to the officers of major trade associations. In one version called "Political Activity After Citizens United: Understanding the Opportunities and the Risks," presented at a Washington, DC, conference center for such trade groups as the Consumer Electronics Association, Mitchell pointed out that "many corporations will not risk running ads on their own," nor will they choose to work with Super PACs, which are subject to disclosure requirements. Such direct corporate involvement, she warned, could lead to "public image problems like those experienced by Target."
She was referring to an episode that has since become notorious in the world of corporate electioneering, when Target and Best Buy became two of the first large firms to take advantage of Citizens United by donating a combined quarter of a million dollars to Minnesota Forward, the committee set up to support Tom Emmer, a Republican gubernatorial candidate. But Emmer was an outspoken opponent of gay rights, and when filings revealed that Target had funded his campaign, MoveOn.org called for a boycott of the company's stores. Target CEO Gregg Steinhafel was forced to backpedal, and the entire episode became what James Kahl, a former general counsel to the FEC who now advises trade associations, calls "a cautionary tale."
The real tsunami in corporate spending has come from nonprofits, in particular trade associations, which are classified as 501(c)(6) organizations under the tax code and are virtually fully funded by corporate cash.
In such a system, Mitchell said, "[trade] associations are the big winners": no filings, no disclosure, no fuss.
* * *
Though much media attention has been heaped on Super PACs--the new political action committees that can take unlimited contributions from nearly any source, such as Mitt Romney's Restore Our Future--they haven't caught fire within corporate America owing to their monthly (in some cases, quarterly) disclosure requirements. Most donations to Super PACs are from wealthy individuals, such as casino magnate Sheldon Adelson, making them not so different from the so-called 527 groups that proliferated in the immediate wake of McCain-Feingold. Among the eight largest Super PACs active during the Republican presidential primaries, 86 percent of their funding came from individuals, not corporations.
The real tsunami in corporate spending has come from nonprofits, in particular trade associations, which are classified as 501(c)(6) organizations under the tax code and are virtually fully funded by corporate cash. In 2010, 501(c)(6) trade associations and 501(c)(4) issue-advocacy groups outspent Super PACs $141 million to $65 million, according to the Center for Public Integrity and the Center for Responsive Politics.
After Citizens United, trade associations quickly moved to augment their traditional PAC spending with secret corporate cash. Take the Pharmaceutical Research and Manufacturers of America, the pharmaceutical industry's trade association. In 2008, PhRMA spent less than $200,000 on federal elections, using only money bundled from transparent individual contributions, mostly from drug company executives. The following election cycle, after Citizens United, PhRMA spent $10.36 million on federal elections, 98 percent of it from undisclosed corporate sources.
Likewise, the shift allowed the National Association of Realtors, already a heavy hitter when it came to PAC spending, to unleash an additional $1.1 million on federal elections from undisclosed real estate companies in 2010.
"What Citizens United has done, it has wholesale changed the landscape," said Stefan Passantino, a partner at the law and lobbying firm McKenna, Long & Aldridge and a former Newt Gingrich campaign adviser. He was addressing a seminar in Atlanta, Georgia, on corporate political engagement in the 2012 election cycle. He recounted advising one corporate client on how to "engage in an issue where we're not popular," in this case to preserve certain tax loopholes. Passantino said businesses have enormous new opportunities for influencing elections without being detected. "We gotta keep our corporate logo out of the bull's-eye," he added.
The ability to avoid disclosure is what makes trade associations the perfect vehicle for corporate electioneering. Quirks in IRS rules allow trade associations to hide all of their donor information. The few disclosures mandated for 501(c)(6) organizations, which pertain to yearly budget information and transfers of money to other groups, only become public a full year after an election has occurred. The disclosures for trade associations active this election season won't be released until the fall of 2013--and even then we won't know which individual corporations provided funds for the ads blanketing the airwaves.
By an eight-to-one vote, the Supreme Court, in Citizens United, upheld existing disclosure laws. It's ironic now to note that Justice Anthony Kennedy's majority opinion spoke of the danger that groups running election-season ads would hide "behind dubious and misleading names," and that citizens deserved disclosure to "make informed choices in the political marketplace," since the decision he wrote has ushered in a new era of dubious and misleading campaign entities. Since then, Congress has failed to pass an updated disclosure law to deal with trade associations and other groups exempted from election transparency rules. And a three-to-three deadlock at the FEC has prevented a tighter reinterpretation of the existing rules.
* * *
The consequence is that API and other trade associations can cloak multinational and even foreign corporate election spending under an American flag. API no longer has to formally segregate its corporate dollars when seeking to influence federal elections, allowing companies like Aramco to pour money into campaign ads without detection. Federal law prevents Saudi lobbyist Al-Gabsani, as a foreign national, from leading a political action committee. But there's nothing stopping him from leading a trade group that makes campaign expenditures just as a PAC would.
Over the years, API has spent tens of millions of dollars on ads casting oil industry prerogatives as patriotic responsibilities, taking up the GOP's call for American "energy independence" through increased domestic drilling. After pushing climate reform off the table by funding Republican victories in the midterm elections, API has now set its sights on pressuring the administration to back the Keystone XL pipeline and to preserve billions in tax credits extended to oil companies, both foreign and domestic.
Will President Obama "say 'Yes' to new jobs, 'Yes' to economic growth, and make our nation more secure?" asks an API television spot calling for approval of the Keystone XL pipeline, a controversial project to bring crude oil from Canadian tar sands to refineries along the Gulf Coast. "Tell the president we need it now," the ad ends, as the White House phone number appears over an image of the Stars and Stripes.
During this election season, API has tapped similar themes in radio ads targeting several US senators up for re-election. Senator Claire McCaskill (D-Mo.) is still in a tight race against Republican Representative Todd Akin despite his inflammatory remarks about "legitimate rape," in part because she's been hit by so many independent ads, including one from API that claimed her position against oil subsidies would raise gas prices. "Senator McCaskill, higher taxes won't lower gas prices," the narrator says. "Tell her Americans can't afford to pay more." A similar radio ad aired in Massachusetts to support Republican Senator Scott Brown for backing oil tax breaks. (In that case, because Brown and his opponent, Elizabeth Warren, had pledged to reject outside advertising, Brown's campaign contributed $34,545--half of the ad's cost--to charity.)
To make both of these issues--the Keystone XL pipeline and oil subsidies--a prominent part of the campaign this year, API launched a mix of paid grassroots and media efforts. The group has deftly exploited the town hall tradition to push its priorities. At a Pizza Ranch restaurant north of Des Moines in July 2011, I watched as several individuals saying they were from a seemingly local organization called Iowa Energy Forum peppered Rick Santorum with questions about his support for Keystone. Though they didn't disclose it, their organization was fully financed by API. The same ordinary-looking Americans hounded Mitt Romney during the primaries, and Romney has since made building the pipeline part of his platform.
API also led "Energy Citizens" and "Vote 4 Energy" campaigns that paid for billboards and broadcast ads featuring Americans who say that oil and gas are the most important issues this November. The Energy Citizens website features yet another American flag; it asks visitors to "Pledge Today" to vote for candidates who support Keystone and sign up for e-mail alerts to oppose "energy taxes," API's deceptive moniker for efforts to end oil company subsidies.
The campaign, like any political endeavor by a trade association, never discloses the individual companies underwriting the effort. And though API's furious flag-waving certainly benefits American oil firms, it also masks the multinational scope of the organization's members. In fact, Saudi Aramco, an API power broker, stands to benefit greatly from both Keystone and federal oil subsidies.
The Keystone XL pipeline will get Canadian crude to refineries that will supply the United States, but much of that refined oil is destined for export to buyers across the globe, according to a report from Oil Change International. Saudi Aramco has joined with Shell Oil to expand their refinery in Port Arthur, Texas, soon to be the largest refinery in the country. That refinery is slated to make its money by processing both imported Saudi oil and crude from the Keystone XL. And Aramco owns a 50 percent share.
Aramco isn't a publicly traded company, and therefore it's not required to file reports with the SEC, which would provide a better picture of which taxpayer subsidies the firm collects. But the company is eligible for at least some of the many controversial tax credits extended to oil companies. Industry experts say that Aramco is eligible, for example, for the manufacturing tax deduction that was given to oil refineries in 2004, which now permits them to reduce their taxable income by up to 9 percent. Aramco, which co-owns three major US refineries, has much to gain from preserving this loophole.
The API-led campaign to boost these policies promises to help many of its American member companies, including Chevron and ExxonMobil, but likely also Aramco and TransCanada PipeLines, the US subsidiary of the Canadian firm seeking to build Keystone.
According to John Hofmeister, the former chief executive of Shell Oil and a former board member at API, the board on which Al-Gabsani sits approves all major communication campaigns with "essentially unanimous consent." An internal API document shows that the board oversees the Political Affairs Committee, which is responsible for API's political campaigns.
As a lobbyist, Al-Gabsani is registered to shape "public debate regarding the importation of crude oil into the United States" on behalf of the Saudi government, according to lobby disclosures. But he is also accomplishing that through his leadership role at API. His position there has been left off the mandatory Justice Department registration forms filed by the Saudi government. (Both Aramco and API declined to comment for this article in response to calls and e-mails. A representative of Al-Gabsani also declined to respond, referring our queries to API.)
API is hardly the only major trade association that represents foreign corporations. SABIC, the Saudi government-owned chemical company that ranks among the world's largest, is a dues-paying member of the American Chemistry Council, another 501(c)(6) that has taken advantage of the new system. The council, like API, represents large American-based firms, such as DuPont and Dow Chemical, as well as multinationals like Solvay SA, a Belgian chemical concern, and Daikin Industries, a Japanese company.
In 2010, for the first time, the American Chemistry Council spent corporate money from its general treasury on federal campaign ads. One ad promoted Joe Manchin, then West Virginia's Democratic governor, in his bid for the late Robert Byrd's open US Senate seat. The commercial, aired with $225,000 in corporate cash from ACC, hailed Manchin as a "Senator for Our Future."
Once elected, Manchin went to work as a loyal ally of the industry. He has cited ACC in his speeches on job creation, appeared at the group's events and supported its interests in Congress. In one of his first acts as senator, Manchin was the lone Democrat to co-sponsor Republican Minority Leader Mitch McConnell's amendment to bar the EPA permanently from using the Clean Air Act to regulate greenhouse gases--a position being pushed at the time by the ACC's top lobbyist, Cal Dooley.
Since then, the ACC has aired nearly identical campaign-style ads in support of over a dozen lawmakers from both parties who sit on key committees affecting the chemical industry. In July, the association began airing a second set of Manchin ads to aid his re-election. The ads come at a time when Congress has moved to delay key updates to the Toxic Substances Control Act, which regulates the chemicals used in consumer products. When New Jersey Senator Frank Lautenberg introduced a bill to this effect, Manchin's name was conspicuously absent from a list of supporting senators. Manchin's staff did not respond to requests for comment.
For its part, the pharmaceutical industry's trade association, PhRMA, boasts many French and British firms with US subsidiaries as members. In 2010, after passage of the Affordable Care Act, PhRMA transferred millions of dollars to PACs to curry favor on both sides of the aisle: $4.5 million went to the American Action Network, a Republican group set up to run ads against Democrats (one famously claimed that convicted rapists would receive Viagra "paid for by the new health bill"), while $3.4 million went to a Democratic-aligned Super PAC called Citizens for Strength and Security.
PhRMA's electioneering came at a time when the industry needed to cultivate political capital with both parties. The industry sought to reward the Democrats for expanding prescription-drug subsidies for seniors as well as protecting drug companies from generic competitors--both part of Obama's healthcare reform package. On the other hand, PhRMA was counting on Republicans to block government studies that would pit drugs against each other in order to create cost-conscious treatment protocols that would eliminate waste--but put drug sales at risk.
Some progressive organizations, such as community credit unions, have benefited from the new latitude granted by Citizens United. The Credit Union National Association, for example, has lobbied obsessively over one bill, the Small Business Lending Enhancement Act, that would lift the amount credit unions can lend to businesses from 12.25 to 27.5 percent of their assets. The higher rate, credit unions claim, would make them competitive with commercial banks.
Still, it was the group's direct electioneering that seems to have produced results. CUNA mobilized its members to send 600,000 partisan mailings during the midterm elections, carrying explicit messages like "Support Rob Woodall for Congress." Trey Hawkins, CUNA's vice president for political affairs, said that credit unions went in big for Suzanne Bonamici, the Democrat running to fill the Oregon Congressional seat left vacant by David Wu earlier this year. Bonamici won, and her first official act as a member of Congress was to co-sponsor the small business lending legislation. (Check out CUNA's PowerPoint for members, "The Election 2012 and Your Credit Union.")
But the spending by such groups (in CUNA's case, slightly over $1 million during the 2010 midterms) is eclipsed by major corporate trade groups like the US Chamber of Commerce, which spent a reported $75 million on electioneering in 2010--a sum larger than any of the Super PACs' in that election cycle. At least $32.8 million of that spending would have been illegal before the Roberts Court deregulated the system.
The US Chamber of Commerce, like many large trade associations, is international in scope. As I reported in 2010, foreign businesses--many of which have little in the way of US operations, such as the Bahrain Financial Harbour Holding Company--contributed at least $885,000 to the Chamber's 501(c)(6), the entity that pays for partisan attack ads. The Chamber acknowledged the foreign funds but claimed that the money was segregated from its domestic corporate dues. The American Petroleum Institute and the American Chemistry Council may also segregate their foreign funds from their domestic money--but no one knows for sure, because they aren't required to say.
"The segregating of money within a trade association, that's a plausible defense. But as an outsider, I have no idea if they're mixing their foreign money with their domestic money," said Ciara Torres-Spelliscy, a legal expert who formerly covered campaign finance for the Brennan Center for Justice.
Current FEC rules allow a foreign-owned corporation to spend in an American election as long as its subsidiary is registered in the United States, the money used for electioneering is generated from US-based operations, and the election spending decisions are made by American citizens or green-card holders.
But under current law, there's no way to audit foreign corporate spending when it occurs through trade associations. "Precisely because there is no disclosure by these groups, there is no way to monitor what they're doing," said Trevor Potter, a former FEC chairman.
Labor unions, like trade associations, are organized under Section 501 of the Internal Revenue Code. But unions are forced to disclose all of their political spending; the LM forms that unions have to file with the Department of Labor list all of their spending in detail, making them uniquely transparent.
By contrast, information about trade associations' campaign activities only gets out if corporations choose to disclose it--or do so by accident. Some companies, such as the drugmaker Merck, have adopted governance policies that require disclosure of contributions to trade associations. Then there are companies like Aetna, the health insurance giant, which accidentally revealed on a regulatory filing that it had given $4 million to the Chamber in 2011--far more than the $100,000 in Chamber dues it reported in 2010.
In the main, the public and the press are shut out of the process. Only corporations, their army of lobbyists and the politicians they influence fully understand what's going on behind the legal walls set up around a 501(c)(6).
"Prior to Citizens United, all federal election money could be traced back to an individual who expended it or contributed to a political committee," said Karl Sandstrom, a former FEC commissioner now with the law firm Perkins Cole. "Once you enable artificial entities to contribute, money is no longer traceable back to identifiable individuals."
* * *
Defending their new privilege of secret corporate electioneering, trade associations have bitterly opposed any attempts, post-Citizens United, at reform.
Last year, when President Obama publicly considered issuing an executive order that would force companies receiving government contracts to disclose their political spending--including spending done via trade associations--the Chamber reacted harshly. "We will fight it through all available means," one Chamber lobbyist told the New York Times in April 2011. "To quote what they say every day on Libya, all options are on the table."
More than 120 trade associations came together last year to reinforce the Chamber's message, signing a letter endorsing legislation that would block President Obama from enacting such an executive order. And in July, when Senator Sheldon Whitehouse (D-R.I.) put forward the DISCLOSE Act, which would have required the trade associations to reveal their spending, dozens of trade groups joined together to denounce the bill before a Republican-led filibuster prevented it from coming up for debate. A letter from the groups blasting the bill, which placed no restrictions on trade associations but simply required disclosure, described it as a "purely partisan effort to silence one, and only one, group of speakers--the business community."
Among the signers of both letters: Saudi Aramco's trade association, the American Petroleum Institute.
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The Solution to Citizens United That No One Is Talking About
Could a narrow focus on Citizens United actually set back our drive for democracy?
That's been a real worry of mine, but my thinking has been fussy. So I was relieved to see Matt Bai, the New York Times Magazine's political correspondent, take on the challenge of deciphering what can and cannot be laid at the feet of this awful ruling.
Jul 30, 2012
Could a narrow focus on Citizens United actually set back our drive for democracy?
That's been a real worry of mine, but my thinking has been fussy. So I was relieved to see Matt Bai, the New York Times Magazine's political correspondent, take on the challenge of deciphering what can and cannot be laid at the feet of this awful ruling.
In "How Did Political Money Get This Loud?" Bai suggests that Citizens United mainly "intensified" unintended consequences of earlier reforms. He argues that the burst of political spending in the last two years, while huge, is actually in line with the trajectory of growth in campaign spending since McCain-Feingold reforms in 2002.
He stresses that the biggest consequence of McCain-Feingold and Citizens United may not be the staggering scale of spending, but that "candidates don't really have control of their own campaigns anymore..."
With the passage of McCain-Feingold, Bai explains, "parties could no longer tap an endless stream of soft money [unlimited contributions used in a range of party activities not directly asking for votes]." So they turned to another means: "independent groups with their own turnout and advertising campaigns limited in what they could say," emphasizes Bai, "but accountable to no candidate or party boss..."
Then, Citizens United and related Court decisions wiped out most remaining limits, so "[n]ow any outside group can use corporate money to make a direct case for who deserves your vote and why, and they can do so right up to Election Day." The big outside groups today are "social-welfare groups" (including, believe it or not, Koch brothers' Americans for Prosperity) and Super PACs, and the difference between them? Super PACs must disclose donors' identities, but social-welfare groups generally don't.
Many will likely debate Bai's analysis, but my concern is what it misses altogether:
"That there are solutions we can realize at least in part in the foreseeable future."
We can move democracy forward even before a new Supreme Court majority reversing Citizens United or victory in a long battle for a constitutional amendment.
Wonderfully, Americans are united across political divisions in our anger at big money's control of politics. Sixty-seven percent of us favor "voluntary public financing" of elections, already enabling regular citizens to run for the legislature in three states. And two-thirds of Americans also support disclosure of large contributors.
So let's get on with building a bipartisan uprising of voters with the guts to insist that candidates we support in November pledge to back DISCLOSE Act and Fair Elections legislation -- now being refined in Congress -- and that, once in place, they use this system, not private wealth, for their campaigns. (Under the "fair elections" bill, a candidate raises a specific number of small, in-state contributions -- each no bigger than $100 -- to qualify for significant public funds, both a lump sum and five dollars for each small-donor dollar up to a cap.) And let's demand that candidates we support denounce any unaccountable electioneering bodies, whether backing them or other candidates.
Join with the dozens of groups already on board from Public Citizen to Friends of the Earth at FairElectionsNow.org and reach out to friends and strangers who've never heard of this option.
Note that the DISCLOSE Act failed last week to achieve the super majority it needed by only nine votes. Nine is an achievable shift this November.
We can't afford to wait for the Supreme Court. We can't afford to wait for a constitutional amendment. Let's focus now on electing a president and a Congress who share the majority's position on these foundational questions. On this path, we begin to reduce the power of concentrated wealth in public decision making as we also build the inclusive citizen pressure necessary to reverse laws and rulings hindering solutions to all our biggest national challenges.
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The Price of Democracy
Jun 01, 2012
We pay a lot of money for health care in the United States, more per capita than anywhere else in the industrialized world. If you point out this inescapable fact to opponents of socialized medicine, they invariably respond that we get high-quality care in return. Exasperated, you might go further and say that spending nearly $8,000 a year per capita still leaves us with the 8th-lowest average life expectancy among OECD countries, that the Japanese spend $5,000 less per person per year and live longer. But rich foreigners flock to the United States for operations, your interlocutor insists, so clearly we get what we pay for. The uninsured, alas, would agree with this grim assessment - since they have little to no money, they get little to no care.
Americans also spend more per capita on the military than any other industrialized country (the United Arab Emirates, with a population of only 7 million people, is the only country with a higher rate). The Pentagon and its clients boast that all this money is well spent, that no country comes close to us in terms of quality or quantity of security. Critics, meanwhile, decry the waste, the cost overruns, the systems that work poorly (the F-35) or will never work (missile defense), and of course the enormous opportunity costs.
On health care and the military budget, no one can dispute that the United States spends exorbitantly. Whether we get our money's worth is a matter of considerable debate.
But there is one arena in which the United States is a world-class spender where you'd be hard-pressed to find anyone who would argue that we get world-class results for our money. I'm talking about our electoral system, which has produced a legislature that attracted a historic low of 10 percent public approval this year, an administration still beholden to Wall Street and the military industrial complex, and (indirectly) a Supreme Court that tilts so far to the right that I'm surprised the building itself hasn't fallen over.
The presidential candidates spent, for instance, over $1.3 billion on the 2008 campaign, a record. The election cycle in 2008 cost more than $5 billion, including congressional races and the primaries. We spent, in other words, about $17 per capita for our last big elections. Sound like a bargain?
Over the border, Canadians spent about $12 per capita for the last election. Australians spent about $7 per person in the 2010 parliamentary elections. Cambodians spent over $45 per person in their first democratic election in 1993, but had brought the cost down considerably to only $2 a person by 2003.
These per-capita figures run the risk of apple-orange comparisons, since countries have very different financing for elections. In the United States, as in Australia and the United Kingdom, private donors dominate. In Sweden and Mexico, on the other hand, public financing is the norm.
But the overall point holds: we spend lavishly on elections, much of it on campaign ads. Politics is not a game for the faint of wallet. Nearly half of our members of Congress are millionaires. These elected officials spend 30-70 percent of their time fundraising, and they are highly, shall we say, responsive when Big Money talks. Indeed, lobbying brings in one of the best returns on investment. In a recent This American Life episode, a tax professor estimated what one dollar of lobbying netted on the American Jobs Creation Act of 2004, which provided tax breaks to multinational corporations repatriating their profits. Bernie Madoff offered 10-percent return on investment. These lobbyists got 22,000-percent return. The former went to jail, the latter went to the bank, and we the people were taken to the cleaners.
You'd think that the best political minds of our generation would be focused on how to reduce the hold that money has over our democracy. True, we've had various waves of campaign finance reform, culminating in the McCain-Feingold legislation of 2002. But the cost of campaigning continues to rise. It's quite counterintuitive, then, that we recently changed the rules of the game so that we can pump even more hundreds of millions of dollars into politics.
Actually, "we" is a misnomer. As Jeffrey Toobin points out in The New Yorker, the decision to overturn campaign finance reform in the Supreme Court's Citizens United decision was largely the work of one man: Chief Justice John Roberts.
The Citizens United case should have been focused narrowly on one provision of the McCain-Feingold campaign finance reform law that prohibited private funding of TV and radio ads about candidates within a certain period before elections. Citizens United produced a documentary slamming Hillary Clinton and planned to show it in the run-up to the 2008 elections. Blocked from broadcasting the documentary during that defined pre-election period, Citizens United took the case to court.
Roberts and his conservative cohort on the Court saw an opportunity to interpret the First Amendment on free speech in such a way to open the floodgates for political contributions. The Court determined in its 5-4 decision that corporations and individuals enjoyed equal rights to free speech and so corporate entities should not be restricted in their campaign contributions. The Bill of Rights doesn't, of course, mention corporations at all. It talks about the "people," about soldiers and "the accused," about the federal government and the states. To argue that the First Amendment's provision that "Congress shall make no law... abridging the freedom of speech, or of the press" applies to corporations making campaign contributions is as absurd as asserting that buying a nuclear weapon is protected by the Bill of Rights (I'm just waiting for the NRA to make this argument).
"The Roberts Court," Toobin concludes, "will guarantee moneyed interests the freedom to raise and spend any amount, from any source, at any time, in order to win elections."
As a result of the Citizens United decision, political campaigns don't have to disclose the identity of their contributors. "Citizens United created an environment in which it is perfectly legal for a shell non-profit corporation to engage in election-related spending on behalf of a hidden interest," writes Lisa Rosenberg of the Sunlight Foundation. "And there is nothing to ensure that the hidden interest is not a foreign national, a foreign company or a foreign government." U.S. subsidiaries of foreign companies can already establish political action committees, and their contribution levels have been rising. Now, foreign entities have additional ways of illegally masking their influence on American politics.
It would be useful to have a watchdog within Congress who represented the public interest against the moneyed elite. But politicians are simply too busy trying to get reelected to scrutinize the money flow.
Imagine, however, if we had 535 William Proxmires in Washington. Proxmire was the legendary skinflint from Wisconsin. In its obituary for the senator when he died in 2005 at the age of 90, The Washington Times wrote that Proxmire "said most senators could get re-elected without spending a penny, but he didn't take the chance -- in his last election, he spent $145.10, down from the $178.75 he lavished on his previous bid. Much of it went for postage to return campaign contributions, which he did not accept. Proxmire preferred the cheapest kind of politicking: He would shake hands till his hands bled, then start again the next day with bandaged hands."
The Citizens United decision ensures that any potential Proxmire will not have the remotest chance of getting elected - not on less than $200 in campaign funds.
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How Conservatives Use Campaign Finance Law to Promote Anti-Choice Agenda
Mar 20, 2012
By now it should come as no surprise that anti-choice activists are engaged in a targeted and specific legal strategy to roll-back abortion rights. After all, it has proven to be more successful to slowly and steadily chip away at access to abortion care via judicial opinion than through any attempts at outright bans in state legislatures.
But what might come as more of a surprise is the fact that a key part of that legal strategy involves attacking campaign finance law. In fact the pro-corporate personhood movement and the anti-woman, anti-choice movement share the same attorney: conservative campaign-finance crusader and abortion-rights foe James Bopp Jr.
Bopp is most famous as the legal architect behind the Citizens United decision but his ties to the anti-choice world run deep. Bopp's clients include the National Organization for Marriage, National Right to Life Committee, Susan B. Anthony List, and Focus on the Family, just to name a few. And it's worth remembering that the Citizens United crusade started as an anti-Hilary Clinton smear campaign dressed up as a free speech movement. Bopp is, by all accounts, the principle litigator for conservative causes.
Since his victory in Citizens United Bopp has traveled the country looking to challenge statewide campaign finance disclosure laws. He does this through actions filed on behalf of anti-choice and anti-marriage equality activist groups. The goal is two-fold: take any victories in decisions that turn back corporate spending disclosure requirements and create conflicting precedents in competing jurisdictions to facilitate Supreme Court review to tie down any lose ends left by the Citizens United decision.
That's exactly what Bopp has done in Washington where he led the challenge to that state's disclosure law. In Human Life of Washington v. Brumsickle, Bopp argued that the state's requirement that advocacy groups like Human Life of Washington register with the state and report its financial activities had a chilling effect on groups' First Amendment speech rights and was therefore unconstitutional. The Ninth Circuit disagreed and last month the Supreme Court denied review of the decision which means the Ninth Circuit decision stands. And since the Supreme Court refused to review this decision, Bopp needs a conflicting decision from a conflicting jurisdiction to force the issue before the Court.
Enter Iowa and the Eighth Circuit Court of Appeals. There, Bopp represents Iowa Right to Life in a challenge to Iowa campaign finance law that is strikingly similar to Human Life of Washington case. It's a circuit that tends to produce conservative-friendly decisions and, as it so happens, is chock-full of conservative advocacy groups with an appetite for litigation.
In each of the challenges Bopp's argument is the same. When states compel groups like Iowa Right to Life to get board approval for political spending and then to disclose those dollars and their donors to regulators and the public, it puts an undue burden on their First Amendment speech rights. Instead, Bopp argues Iowa Right to Life and other corporate groups should be able to spend freely and without accountability at the state level thanks to the precedent set by Citizens United.
The fact that each state regulates campaign spending differently means plenty of opportunities for Bopp to challenge individual laws and crack any regulatory scheme. This then forces a federal appellate court to find some consistency among the differing state approaches in answering the federal constitutional question of whether disclosure burdens speech rights. If it sounds familiar it should. It's the same litigation strategy the right has used with abortion access for decades. Look at the 20-week abortion bans, for example or the 5th Circuit decision on trans-vaginal ultrasounds. This is how the right makes abortion law and it's being exacerbated by the results of the Citizens United decision.
If Bopp is successful it means even more undisclosed campaign spending at the state level. This means more campaign materials containing outright lies linking abortion to breast cancer, for example, since outside ads are not governed by consumer protection limitations or so called "truth in advertising" regulations. It means an open and direct pipeline to groups like the Catholic Church that can't directly spend on political campaigns but sure are eager to influence public policy and simply need a surrogate to do so. And it means the battle to protect abortion access just got a whole lot more expensive.
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High Court Opened Door to Legalized Bribery
Remember the 2010 State of the Union address when President Obama spoke directly at the Supreme Court justices sitting in the front row and "lectured" them about their Citizens United decision?
Jan 11, 2012
Remember the 2010 State of the Union address when President Obama spoke directly at the Supreme Court justices sitting in the front row and "lectured" them about their Citizens United decision?
"Last week, the Supreme Court reversed a century of law to open the floodgates for special interests -- including foreign corporations -- to spend without limit in our elections," Obama told the justices, as the glare of the cameras focused on them. "Well, I don't think American elections should be bankrolled by America's most powerful interests."
The court, by a 5-4 vote, had just declared that corporations are, in effect, people when it comes to First Amendment rights and, therefore, their "free speech" can't be limited by campaign spending laws.
As Obama sternly expressed his displeasure and Democrats in the chamber rose to applaud him, the cameras caught Justice Samuel Alito, one of the five in the majority, shaking his head and mouthing the words, "Not true."
Well, here we are barely two years later and already the impact of the Citizens United decision is being felt across the land. Those who were criticized for predicting that the decision would swamp election campaigns with even more wild special-interest spending have already been vindicated. That includes the four dissenting justices, who wrote a blistering dissent forecasting what would happen.
The "not true" Alito now looks like just another ivy-towered jurist who can't fathom what his opinion might mean to the real world with which he is so painfully out of touch.
Just look at Iowa last week.
Political committees, unfettered by limits established by the McCain-Feingold campaign finance law, for instance, spent so much on attack ads during the last weeks before the caucuses that they actually swamped the efforts of the candidates themselves.
Noted the Chicago Tribune: "The early activity heralded a transformation across the country in the first presidential cycle since a 2010 Supreme Court decision lifted the limits on individual and corporate donations to independent political organizations known as super PACs."
According to the paper, the decision has rendered "quaintly obsolete the old system under which donations were strictly limited to candidates and party committees. If the trend continues, the 2012 presidential election will reverse more than a century of efforts to curb the influence of big money on politics."
The effort to rid the system of big money, as former U.S. Sen. Russ Feingold, the co-author with Sen. John McCain of the McCain-Feingold Act, used to point out, began with former President Theodore Roosevelt. Roosevelt was a fierce foe of corporate spending in elections.
Since the Supreme Court opened the doors, super PACs have been formed to support specific candidates, although they're not supposed to be linked with the campaigns themselves. But this is yet another subterfuge in the never-ending spending binge that marks today's campaigns. The super PACs raise and spend unlimited funds while the candidate claims to know nothing about the ads and, of course, is "powerless" to do anything about them. That's what Mitt Romney claimed in Iowa, where millions were spent on his behalf to tear down Newt Gingrich.
Fred Wertheimer, president of a national campaign finance reform group, believes the super PACS are vehicles that will spread to Congress and lead us back to a system of pure legalized bribery.
In other words, with Iowa, we have just seen the beginning.
Someone should inform Justice Samuel Alito that his "not true" was the real falsehood.
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5 Ways You Can Fight Citizens United
The Story of Citizens United v FEC: How we the people can reclaim our democracy.
Feb 22, 2011
We never expected to be writing an article with this title. Aren't united citizens a good thing? Civil Rights movement? Egypt? Madison?
Yes, but that's not the kind of people power we're talking about here. What we want to fight is the disastrous 2010 Supreme Court Citizens United v Federal Election Commission (FEC) decision. Ironically, "Citizens United" is the name of a conservative advocacy group which receives corporate funding and works to promote increased rights for corporations. The Citizens United v. FEC case originally dealt with the question of whether or not airing Citizens United's documentary about Hillary Clinton was an advocacy ad, and therefore subject to existing restrictions on election ads under the McCain-Feingold law.
But in a brazen act of judicial activism, the court decided to consider the much broader issue of corporate spending to influence elections, which wasn't even presented in the original case. In a decision that stunned democracy advocates and trampled a number of campaign finance laws, a slim five-Justice majority ruled that corporations--including for-profit corporations--do indeed have a right to spend as much money as they want to elect or defeat candidates in our elections.
This decision effectively grants corporations the same First Amendment Free Speech protections granted to real live people.
The catch is that corporations obviously are not people. Someone get the Supreme Court a biology textbook! There are some really big, and really significant, differences. For starters, people are part of the biological system; we need clear air and water, a healthy environment, a stable climate to thrive. Corporations are legal entities, created by people, and have no such biological needs and thus no inherent reason to safeguard the environment.
People make decisions based on a constant balancing of many interests, including love for our families and communities, compassion, kindness, desire for a better world, as well as economic and material interests. Corporations don't have families and communities, nor hearts with which to love them. As Justice Stevens said in his dissenting opinion, "corporations have no consciences, no beliefs, no feelings, no thoughts and no desires." Instead, corporations--by both law and the demands of the market--are under enormous pressure to focus on one thing: maximizing profit.
Their single minded focus, plus their enormous scale, means it's dangerous to invite them into our democracy. If corporations spend even a tiny percentage of their profits on influencing election outcomes, they can dwarf the contributions from real people, skewing election results to favor corporate interests, which aren't always the same as the interests of workers, families, and the environment.
At the Story of Stuff Project, we have partnered with organizations working for solutions to issues as diverse as climate change, toxics in consumer products, and the wastefulness of bottled water. In every case, when we ask these experienced organizers what the biggest obstacles to progress are, the answer is the same: corporate influence in the political process.
The Citizens United v. FEC decision makes this problem even worse. Reversing it is a critical step to reclaiming our democracy by the people and for the people. Yes, we know that reversing this case won't immediately prevent the myriad other ways that corporations exert influence in our democracy, but it is a really, really important place to start. Reversing a Supreme Court decision requires a new Constitutional Amendment so we're joining with a number of organizations launching a national campaign to obtain one. It's not going to be quick or easy, but working for big changes requires big efforts. And while we're working on it, we can be building a broad-based national movement to get corporations completely out of our democracy--and get the people back in.
This is a really important fight. Until we wrestle control back from the corporations, we can't leverage our amazing democracy for real progress on any of the issues we care about. So, whether your passion is protecting the environment or creating green jobs or improving public education--or really any other issue on which corporate interests are blocking real solutions--this is your campaign too. Here are five ways to plug in and get started.
Five Ways to Fight Citizens United:
Watch The Story of Citizens United v. FEC
Watch The Story of Stuff Project's latest film, The Story of Citizens United v. FEC: Why Democracy Only Works when People are in Charge at www.storyofcitizensunited.org. Then share it widely! Post it on Facebook, tweet about it, blog about it, organize a showing in your school or church, put a link on your website. Help turn the volume up on this much needed conversation!
Video Trailer:
- Party for the Cause
Hold a house party to screen the The Story of Citizens United v. FEC and invite others to join the campaign. Invite friends, neighbors, family members over to your place for an evening of democracy in action! You can download our House Party Guide, which has house party tips and action ideas, here. - Sign on
Sign Public Citizen's petition calling for a Constitutional Amendment clarifying that free speech is for people, not corporations. We need a lot of signatures to launch this ambitious campaign. Please download the petition here, make copies and carry them around with you collecting signatures--and thus telling others about the campaign--everywhere you go. If you want to sign electronically, please do so here and forward this link on to your friends and family. - Get National
Join a national organization working on taking back our democracy. This way your local efforts can be magnified and it'll be a lot easier to track this issue and identify opportunities to get involved locally and nationally. Check out Public Citizen, Free Speech for People, People for the American Way and Move to Amend. - Democracy: Use it or Lose it
One reason corporations have been able to hijack our democracy is that many of us haven't engaged much in it ourselves lately. If we want policy makers who prioritize public good, healthy jobs, and a sustainable environment, we need to get involved, hold them accountable, and engage as active citizens every day--not just on voting day. Join a local organization working on an issue you care about, host a community event to share information, write letters to your congresspeople and local newspapers to share your opinion. There are an infinite number of ways to get involved and once enough of us do, we can take back our government so that it really is by the people, for the people. Then, we can get to work solving today's pressing problems with a government working for us, instead of big business.
YES! Magazine encourages you to make free use of this article by taking these easy steps.
Annie Leonard and Allison Cook wrote this article for YES! Magazine, a national, nonprofit media organization that fuses powerful ideas with practical actions. Annie is the author and host of The Story of Stuff and the director of the Story of Stuff Project; Allison is special project coordinator for the Story of Stuff Project.
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