New Citizen United Case

A case now working its way through Federal court has the potential to fully dismantle the McCain-Feingold Campaign Finance law of 2002, finishing the job the Supreme Court started when its 2010 Citizens United decision loosed a tidal wave of outside money on the American Electoral system.

That case, Republican Party of Louisiana v. FEC, is currently before the District Court for the District of Columbia, but it could be on its way up to the Supreme Court. On Friday, three campaign reform groups filed a joint amicus brief warning of "extraordinarily far-reaching negative consequences" if the district court rules in favor of the plaintiffs. "The return to the era of soft money would be complete," wrote attorneys representing the Campaign Legal Center, Democracy 21, and Public Citizen in the brief.

"Soft money" is a colloquial term for the unregulated contributions that political parties could legally collect prior to the passage of the McCain-Feingold bill. Although there continue to be strict limits on how much individual donors can give to particular campaigns, before 2002 there was no cap on the amount that could be given to a party for general purposes. Parties would use their virtually unlimited soft money to produce "issue ads," including attack ads, that were ostensibly not connected to particular campaigns.

The McCain-Feingold bill had two major effects: It banned soft money, and it limited outside political spending by large entities such as corporations and labor unions. The Supreme Court's Citizens United ruling struck down limits on outside spending but left the soft money ban intact.

In Republican Party of Louisiana v. FEC, the plaintiffs argue for "a First Amendment right of political parties to spend unlimited sums on behalf of their candidates," Richard Hasen, an expert in election law at the University of California Irvine school of law, told International Business Times.

Those plaintiffs are being represented by Jim Bopp, the attorney who successfully persuaded the Supreme Court to rule against strict outside spending limits in Citizens United. Hasen said the newer lawsuit seems engineered to move up to the highest court in the nation, as indicated by the fact that a three-judge panel is currently reviewing it. "Filing before a three-judge court is kind of a shortcut to get to the Supreme Court," he said. "It makes it much more likely that the Supreme Court will take the case."

But since the case was filed last year, the plaintiffs have hit a surprise stumbling block: the death of Supreme Court Justice Antonin Scalia, which robbed the high court of its conservative majority and left it split down the middle.

Hasen said he thinks Merrick Garland, President Barack Obama's nominee to replace Scalia, would be unlikely to rule in favor of overturning the soft money ban. "Less certain is if someone like Judge Garland would be willing to overturn Citizens United," said Hasen.











NYC Wins When Everyone Can Vote! Michael H. Drucker

Federal Election Commission Enacts Policies by Not Acting

Under federal law, no more than three members of the commission may belong to the same political party.  Four votes are required to issue an advisory opinion, pursue an investigation or agree on a punishment.  Veterans of the commission say that for many years the arrangement was effective in encouraging commissioners to apply rules consistently to both parties.

But deadlocks have become far more common since 2008, when three new Republican commissioners joined the commission.

According to a study by Craig Holman, a lobbyist at Public Citizen, the commission has not only taken up far fewer advisory requests and issued fewer regulations than it did before 2008, it has also split votes on a greater proportion of the matters it does consider.

“The Republicans on the commission realized they can render the commission toothless,” said Mr. Holman, whose organization favors tougher disclosure rules and is suing the commission for what it says is a failure to enforce existing disclosure rules against Crossroads Grassroots Policy Strategies, a leading Republican outside group.

Mr. Goodman acknowledged that candidates and outside groups were operating in a less restrictive regulatory environment than five years ago.  But he argued that the shift reflected deregulatory court rulings, such as Citizens United, and a proper restraint in applying limits on political speech.

Mr. Goodman also said “If there aren’t four votes to support a regulatory position, it’s not the position of the F.E.C.”

So, the three Republican and three Democratic appointees of the Federal Election Commission had reached yet another deadlock: They would issue no advisory opinion on whether the Conservative Action Fund could accept contributions of Bitcoin, the online currency created to be untraceable.

The Republican commissioner, Lee E. Goodman, suggested that the group could essentially do as it pleased.  The fund “has a clear statutory right to give and receive in-kind contributions regardless of what we say here today,” Mr. Goodman said.

The case was just one of the more than 200 times in the past six years that the commission has split votes, reflecting a deep ideological divide over how aggressively to regulate money in politics that mirrors the partisan gridlock in Congress.

But instead of paralyzing the commission, the 3-to-3 votes have created a rapidly expanding universe of unofficial law, where Republican commissioners have loosened restrictions on candidates and outside groups simply by signaling what standards they are willing to enforce.

Campaign lawyers of both parties say the deadlocks have profoundly, if informally, affected the rules governing campaigns, particularly on questions involving whether political nonprofit groups must disclose their finances and the threshold for starting an investigation.

The splits are consistent enough in spelling out the likely direction of enforcement, they say, that they now advise clients that a 3-to-3 split comes close to official commission policy.

“If you’ve got a client who is not as risk-averse, then you can sit down with them and say, ‘Here’s the situation, you have three commissioners who say this is lawful, and that is something you can rely on between now and November for your campaign strategy,’ ” said Michael E. Toner, a Republican election lawyer and former commissioner.

Some election lawyers have even turned the deadlocks into a kind of marketing spiel. As Anthony Herman, a lawyer at Covington & Burling, put it in an article on the firm’s website: “The F.E.C.: Where a ‘Tie’ Can Be (Almost) a ‘Win.’ ”

In an interview, Mr. Goodman, the commission chairman, described the guiding principle as one of deference to First Amendment political speech.  In case of a deadlock, he said, the “tie goes to the speaker.”

F.E.C. deadlocks have transformed the regulatory system intended to ensure that outside groups operate independently of the candidates they support — the distinction that, under the Supreme Court’s Citizens United decision, permits them to raise and spend unlimited amounts of money.

Twice the commission has reached an impasse on rules affecting whether a “super PAC” can borrow video prepared by a candidate for his or her own ads.  Candidates of both parties now routinely make available so-called B-roll video, ensuring that super PAC ads look and feel similar to the candidate’s own ads.

In a January hearing on text-message advertising, Caroline C. Hunter, one of the Republican commissioners, told the lawyer for a left-leaning digital media firm that his client need not worry if the commission declined to bless its proposed approach to disclosure.

“It looks like this is going to go down 3 to 3,” Ms. Hunter said. “And so there’s not four votes to say, ‘You can’t do this.’ ”

The deadlocks appear to have had a particular impact on enforcement cases.  In a series of deadlocks over proposed fines or settlements, Republican commissioners have in effect created a new, higher standard for investigations, arguing that direct evidence of a violation must already exist before the commission staff can even begin investigating a complaint.

A commission deadlock on a complaint can be challenged in court, but under court rulings dating to the early 1990s, federal judges in such cases have deferred to the legal interpretation of the three commissioners voting to block an investigation.

“The fact that there is this deference given to what is an obstacle to disclosure ultimately means that there is no meaningful judicial remedy when the F.E.C. does not come to a decision,” said Ann M. Ravel, a Democrat who joined the commission last year.

Even apparent agreements among the commissioners can be illusory. In May, in a separate request involving Bitcoin, the commissioners unanimously agreed that a fledgling group called Make Your Laws could accept small Bitcoin contributions of no more than $100.  But in a separate statement, Mr. Goodman suggested that potential Bitcoins donors should not worry about the new policy.

The Commission is made up of six members, who are appointed by the President of the United States and confirmed by the United States Senate.  Each member serves a six-year term, and two seats are subject to appointment every two years.

But it does not say that a commissioner has to be a member of a party.  So we need a President and a Senate that will approve two independents.










NYC Wins When Everyone Can Vote!

Michael H. Drucker
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Webinar About Overturning Citizens United Decision

This Wednesday, January 8, at 8:30 p.m. Eastern, Public Citizen, along with Free Speech for People, is hosting a webinar featuring Ben Cohen, co-founder of Ben & Jerry’s Ice Cream and superstar activist for a constitutional amendment to overturn Citizens United.

During this conversation, the discussion will address how a bad ruling in another case — McCutcheon v. Federal Election Commission — that the Supreme Court will rule on soon, could enable nearly unlimited direct contributions to candidates from individuals.  You will learn what steps we can take together to fight back.

Ben Cohen has been storming the nation with the “Stamp Stampede” — a campaign in which activists stamp messages on dollar bills supporting a constitutional amendment to reclaim our electoral process from corporate domination.

You won’t want to miss what Ben Cohen has to say about the imminent McCutcheon ruling, which could further eviscerate limits on campaign spending, giving CEOs and plutocrats even more power to sway elections.

This is a unique opportunity, not only to learn what’s happening, but also to join the nationwide response in a way that puts your outrage about the destruction of our democracy front and center in the public eye.

You must sign up to join Wednesday’s online conversation and to make sure you receive an email with all the details.

CLICK HERE to sign up to be a part of the conversation on Wednesday, January 8, at 8:30 p.m.

P.S. Unable to attend, but want to receive a recording of the video presentation along with additional in-depth insights from Public Citizen’s experts:

CLICK HERE to sign up to receive weekly emails.










NYC Wins When Everyone Can Vote!

Michael H. Drucker
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Overturning Citizen United v. FEC

On January 21, 2010, the U.S. Supreme Court announced its ruling in the Citizens United v. Federal Election Commission case.

Moments after the court issued its decision many groups announced campaigns to overturn the ruling. One of these groups, Public Citizen, began their campaign to overturn the ruling and prevent a wholesale corporate takeover of the American experiment in living democracy.

As they near the midpoint of year four in their campaign, here is an update of their efforts:

1. A majority of members of both houses of Delaware’s legislature signed a letter urging the U.S. Congress to pass a constitutional amendment reversing Citizens United. Delaware joins Illinois, Maine and West Virginia, along with the District of Columbia, in formally calling for an amendment this year. To date, 15 states have joined the nationwide of support for an amendment. Ultimately, an amendment will have to be ratified by three-fourths of the states. That’s 38. Four more and they are halfway there.

2. In New Hampshire and Oregon, the state legislatures are still in session and there is anticipation they will be the 16th and 17th states to join the amendment movement.

3. They have been working with supporters and allies in nine other states — Alaska, Arkansas, Georgia, Iowa, Kansas, Kentucky, North Carolina, Pennsylvania and Texas — that highlight an ability to carry the momentum into states where this kind of movement may be a tougher sell.

4. $23 million was spent in the New Hampshire gubernatorial race in 2012, where 80% of that record-breaking amount was spent by super PACs. Or $400,000 on four city council seats in Oklahoma City last fall, where a single super PAC tried to buy seats that pay an annual salary of $12,000. Corporate executives can do basic math. And they know that investments in election outcomes can pay for themselves many, many times over — both in access to officials and in pro-corporate policies.

At the time of the Citizens United ruling, nearly half the states had laws restricting corporate political spending. In an instant, five Supreme Court justices wiped out these popular and commonsense policies. They turned the corporate money valve fully to “ON” and broke off the lever.

Even though Citizens United prohibits states from limiting corporate political expenditures, states are allowed to require full disclosure of the money corporations spend trying to influence elections.

A report from the Corporate Reform Coalition (a network of more than 70 organizations spearheaded by Public Citizen) compiled examples of states working to limit corporate money in politics:

1. Twenty-one states — Alaska, Arizona, Colorado, Connecticut, Florida, Illinois, Iowa, Kentucky, Maine, Maryland, Massachusetts, Minnesota, Nevada, North Carolina, South Carolina, South Dakota, Tennessee, Texas, Washington, West Virginia and Wisconsin — changed their disclosure laws after Citizens United rendered their original laws unconstitutional.

2. Alaska, California and North Carolina now require the names of the top contributors to be listed in any electioneering advertising.

3. Iowa now requires a corporation’s board to approve its independent spending.

4. Maryland now requires that shareholders be informed of corporate political spending directly.

5. Connecticut now requires that the chief executive officer appear in any ad paid for by a corporation.

Outside spending is overwhelmingly focused on negative advertising.

Public Citizen found that more than 85% of unregulated independent expenditures made by the 15 biggest outside groups in the 2012 election cycle financed negative messages.

More than 90% of the money spent by Karl Rove’s Crossroads and by the U.S. Chamber of Commerce was directed against candidates, as was ALL of the money spent by the Obama-supporting Priorities USA Action.

Voters are discouraged and alienated by the slew of negative ads aired by outside groups.

Where candidates are somewhat deterred from running attack ads, because voters may hold them accountable for the tone of their campaign, outside groups are accountable to nobody other than their handful of funders and therefore are not deterred at all.

The reality is that negative advertising works, but it does so largely by turning people off to politics and the electoral process altogether.

This outrage has translated into more than 2 million signatures on petitions calling for a constitutional amendment to overturn Citizens United, with more added every day.

The coalition of groups working for an amendment has grown from 60 organizations last year to more than 150 today, representing a spectrum of civil rights, community, environmental, labor and student groups, and many more — with Public Citizen among those at the forefront.

Some 500 cities and towns throughout the entire country have passed resolutions calling for an amendment.

As has been noted, a key step on the path to an amendment is getting support from two-thirds of the members of each house of Congress.

That would be 290 representatives and 67 senators.

We already have 109 representatives and 29 senators.

With 36 more representatives and 5 more senators, we’ll be halfway to that two-thirds threshold.










NYC Wins When Everyone Can Vote!

Michael H. Drucker
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The Democracy Is For People Amendment

Earlier today, Senator Bernie Sanders and Representative Ted Deutch introduced resolutions in both houses of Congress for a constitutional amendment to overturn Citizens United v. Federal Election Commission.

It’s called the Democracy Is For People Amendment. Sen. Sanders and Rep. Deutch named their proposed constitutional amendment after a Public Citizen’s campaign!

The Democracy Is For People Amendment not only would give Congress the authority to regulate money in politics, it also — and without additional congressional action — would end all corporate election spending.

Democracy Is For People is a project of Public Citizen.

Because the government should serve voters, not corporate interests, Public Citizen pushes to curb the influence of money in politics by exposing the influence of big corporations on government, pushing to open the government to public scrutiny and holding public officials accountable for their misdeeds. They do this by engaging citizens in grassroots efforts, undertaking groundbreaking, data-driven research and championing citizen interests before Congress, the executive branch agencies and the courts.

A major focus of their work over the past year has been building a movement to counteract the U.S. Supreme Court’s decision in Citizens United v. Federal Election Commission.

In the past two years, they have also:

•Pressed for restrictions on pay-to-play, the all-too-common practice in which businesses make campaign contributions to public officials in the hopes of winning lucrative government contracts.

•Lobbied to stop insider trading by members of Congress and their staffs by pressing for a bill that would make government officials abide by the same insider trading restrictions as everyone else.

•Recommended ethics rules to the Obama administration; the administration’s policy, announced in January 2009, is stricter than that of any previous administration, and the best aspects are based on our recommendations.

CLICK HERE To learn more about the campaign.










NYC Wins When Everyone Can Vote!

Michael H. Drucker
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