Toobin: Another Citizens United—but Worse (The end of campaign finance reform?)

[cali]

Think the Supreme Court’s decision in Citizens United was bad? A worse one may be on the horizon.

To recognize the problem, it’s necessary to review some of the Court’s gnarled history on the subject of campaign finance. In Citizens United, which was decided in 2010, the Court rejected any limits on what a person or corporation (or labor union) could spend on an independent effort to help a candidate win an election. Thus the rise of Super PACs; that’s why Sheldon Adelson could spend sixty million dollars to help Mitt Romney in 2012. But, though Citizens United deregulated independent expenditures on behalf of candidates, the case said nothing about direct contributions to the candidates themselves.

That’s where the new case comes in. Current federal law allows individual donors to give up to two thousand six hundred dollars to any one candidate during a single election. In addition, they can give only an aggregate hundred and twenty-three thousand dollars to candidates, political action committees, and parties over a two-year period. Shaun McCutcheon, an Alabama Republican, wants to give more money to the candidates he supports, so he has sued to invalidate the rules limiting the over-all amounts he can give. (Indeed, the patriotically minded McCutcheon wanted to give “$1,776” to enough candidates to exceed the current limits on direct contributions.) The Supreme Court will hear his case in the fall, and he has a good chance of winning.

To see why McCutcheon may win, one must examine the strange reasoning that governs the Supreme Court’s decisions on campaign finance. In his brief to the Justices, McCutcheon makes an argument that is breathtaking for its candor. He says that when Congress first upheld limits on contributions, in the 1976 case of Buckley v. Valeo, the limits on aggregate giving served a useful purpose. Without the ceiling, the Court explained, a person could legally “contribute massive amounts of money to a particular candidate through the use of unearmarked contributions to political committees likely to contribute to that candidate, or [make] huge contributions to the candidate’s political party.”

<snip>

http://www.newyorker.com/online/blogs/comment/2013/07/supreme-court-another-citizens-united-but-worse.html?mbid=gnep&google_editors_picks=true

[Hydra]

1. *flush*

Was that the sound of what was left of our democracy swirling the drain?

[starroute]

2. This is one of Dan Backer's crap moves

I posted several times about Backer's operations last fall and winter. He specializes in (1) ripping off the Tea Party and (2) destroying campaign financial reforms. Here's what I posted initially:

http://sync.democraticunderground.com/1014215800#post26

According to SourceWatch (http://www.sourcewatch.org/index.php?title=Dan_Backer):

In January 2011, Dan Backer, Esq. of DB Capitol Strategies PLLC filed suit against the Federal Election Commission on behalf of National Defense PAC, Rear Admiral James J. Carey , and Kelly S. Eustis 'to protect the free speech rights of individuals - ensuring that Americans remain free to contribute to political groups who speak out about issues and candidates without government imposed limits.'

The basis for the case was Kelly Eustis wanting to give $10,000 to National Defense PAC (NDPAC) to run attack ads against Democratic Representative Anthony Wiener. Since NDPAC was a traditional PAC, not a Super PAC, Eustis could only give $5,000, the maximum acceptable contribution. Plaintiffs argued that NDPAC should not have to create a separate entity to exercise its constitutional rights.

This suit was successful and led to the creation of something called Carey PACs, which are particularly insidious because they can collect both hard and soft money donations -- as long as they keep them in separate bank accounts -- and therefore undermine campaign finance regulations.

Backer is currently involved with a suit by another associate of his, Shaun McCutcheon, that aims to completely overturn the limits on how much individuals can donate to federal candidates, on the grounds that any kind of restrictions violate freedom of speech. In other words, Citizens United on steroids.


(See also http://www.democraticunderground.com/10021533199 and http://www.democraticunderground.com/10022302757)

[starroute]

3. For anybody who really wants to get into the dirt, there's this

The story will probably be insanely confusing to anyone who hasn't been following the entire saga. But the short version is that when Anonymous came into possession of the trove of documents from HB Gary that have recently been the subject of numerous threads here, they revealed (among other things) that one of the targets of the planned smear campaigns was Brett Kimberlin, who had been campaigning against both the Chamber of Commerce and Andrew Breitbart.

This led to Kimberlin and elements of Anonymous coordinating their efforts against their mutual enemies -- which led to Kimberlin becoming the bogeyman-du-jour for much of the right -- and eventually to Kimberlin filing a restraining order against a particularly aggressive right-wing blogger, Aaron Walker.

At that point, Dan Backer came to Walker's defense -- probably because he saw an opportunity to make money off the deal. But as indicated by the item quoted below, that provoked heightened scrutiny of Backer, which demonstrated that he was being less than truthful about his involvement -- and also that money from his pal McCutcheon was part of the web of connections.

http://www.breitbartunmasked.com/latest-news/how-clean-were-backers-hands/

Right Solutions and The Bloggers Defense Team (claimed) they are not affiliated with any other club or organization unless they specify it on their website. Well many in this scene already know that the National Bloggers Club was the initial point of contact for Aaron Walker who went to bat for Walker in raising money for his defense against Brett Kimberlin who had filed a restraining order against Walker, which then resulted in a massive backlash against Kimberlin brought on by extremist right wing conservatives. Soon after, it was discovered that Ali Akbar who ran the National Bloggers Club was a convicted felon and had a number of issues while trying to use Walker’s case to raise money for the cause of free speech and all that hogwash. So after numerous calls for Akbar to step down or step aside, Dan Backer from DB Capitol Strategies stepped in with his clean hands to run the show for raising funds and showing the donors that a new Sheriff was in town, and he had clean hands and could be trusted with “other people’s money.”

But are those hands actually clean? Are they clean from Ali Akbar and The National Bloggers Club? . . .

Dan Backer, the guy representing Aaron Walker in his numerous lawsuits against Brett Kimberlin who is also the head of the Bloggers Defense Team, actually had prior professional contact with Ali Akbar and his Vice and Victory organization during which time Ali Akbar was on probation in Texas for numerous counts of Credit Card Fraud and Burglary as reported by BU. As a matter of fact, Dan Backer paid Ali Akbar from a loan of 35,000.00 dollars that was given to the Conservative Action Fund by Shaun McCutcheon of which Ali Akbar was the prime beneficiary of at least 15,800.00 of that loan for web, technology and marketing consulting. So Dan Backer has long been associated with Ali Akbar, and the clean hands appear to be not so clean after all. It appears that this connection to Akbar was in the form of a prior business relationship while Mr. Akbar was on probation, and it appears that Dan Backer had zero problems funding Mr. Akbar through those loans given to the Conservative Action Fund.

[cali]

4. thanks a lot for this.

Great info

[Jim Lane]

5. This case illustrates why "corporate personhood" is the wrong focus for us.

A Constitutional amendment abolishing corporate personhood wouldn't touch this case. Shaun McCutcheon may be a filthy rich right-wing jerk but he's a HUMAN filthy rich right-wing jerk. Most of the "overturn Citizens United" amendments being proposed would have no effect on McCutcheon's argument.

Beyond that, I (contrary to most DUers, it seems) support corporate personhood. For example, the Due Process Clause protects any "person" from a taking. I don't think that Governor Scott Walker (or, worst-case scenario, President Ted Cruz) should be able to confiscate a corporation's property without due process of law.

The better response to Citizens United is to recognize that campaign contributions or independent expenditures do involve free speech but also involve conduct, which can be regulated. That conduct can be regulated regardless of whether it's by a corporate person or a natural person. The regulation must walk the line between impermissibly restricting freedom of speech and permissibly restricting the undue influence of big money, and there will be some gray areas, but that's the way to go -- whether by changing the composition of the Supreme Court or by amending the Constitution.

[dreamnightwind]

6. No it doesn't

It just shows how removing corporate personhood doesn't fix this particular problem.

And I think there are better ways to protect corporation's rights, if that's what you see as a pressing concern (I don't), than by giving them the rights we give to natural persons.

Seems to me the "money is not speech" part of the proposed reforms is closer to the mark here.

[Jim Lane]

7. It's more complicated than what you imply.

Corporations don't have all the rights of natural persons.

As for finding "better ways to protect corporation's rights," remember that the better way must restrain executive orders by the likes of Governor Scott Walker or President Ted Cruz; must restrain the U.S. Congress, which, depending on future election results, might well find a majority in each house ready to confiscate the assets of Planned Parenthood or the like; and must restrain state legislatures, such as the one in North Carolina that's now busy enacting every right-wing nutjob proposal they can find.

How do you prevent abuse by all those potential actors? The only way I can think of to do it is through a provision in the U.S. Constitution.

We have that now, in the Due Process Clause (found in the Fifth Amendment and the Fourteenth Amendment). It says that no person may be deprived of life, liberty or property without due process of law. Under the current wording and interpretation (an interpretation that long predates Citizens United), that means that a right-wing governor can't just order the confiscation of the property of a corporation he or she doesn't like. Do you favor retaining that prohibition? If so, how would you retain it in the face of a constitutional amendment declaring that corporations are not persons?

The problem with "money is not speech" is that it is speech. It's just not only speech. The trick is to regulate money flooding into campaigns without impairing the values that the First Amendment protects. To take an extreme example, a law that prohibited all campaign contributions and spending, by anyone (whether candidate or supporter, human or corporation), would violate the First Amendment. Forcing all candidates to rely solely on free media would give incumbents a huge advantage.

[dreamnightwind]

8. Yes I understand it is more complicated

and thanks for your well-thought-out reply.

First, my reply was to this claim you made:

"This case illustrates why "corporate personhood" is the wrong focus for us.

A Constitutional amendment abolishing corporate personhood wouldn't touch this case."

to which I replied "No it doesn't. It just shows how removing corporate personhood doesn't fix this particular problem."

You seem to have a pro-corporate-personhood agenda, and you bent the issue to that end, when this case is not even a corporate issue, it's about an actual person's desire to have no limits when he wants to use his own money to influence the minds of voters.

Your concern for the health of corporate personhood seems to revolve around government "takings" of corporate property, a fairly common right-wing concern, and very low on my list of concerns.

Much higher on my list of concerns is the growing oligarchy, and corporate personhood is a useful tool for oligarchical architects.

How about you explain to me how money is speech? It's just not true, on its face nor substantively. Money is what people use to leverage their speech over the speech of people who have less money. The speech is protected, the multiplier of unlimited campaign spending should not be.

Unfair advantage to incumbents? How so? I tell you what, if we get private money out of elections, our incumbents won't be so corrupt, they'll be representing our interests instead of the interests of the billionaires who used to write their campaign checks, and they'll be authoring legislation themselves instead of merely shepherding lobbyist-written legislation through congress. At that point, though I disagree that there would be one, I would have no problem with an advantage to incumbents, it would be great to have some continuity with good public servants in office. These would be different kinds of people than the corporate proxies who hold office now, they'd be people who actually believed in service to the common good, and if they weren't, we'd be able to vote them out.

In your "extreme example", the government would pay for the elections and for campaign spending. Your assertion that candidates would have to rely on free media, giving incumbents a huge advantage, seemed to contain two assumptions that I disagree with:

One is that we, as an electorate, are well served and informed by political spending in our current system. Actually we are highly misinformed, the ads teach us next to nothing. Their focus is merely to make themselves look better than their opponent, regardless of how they do it. Lies, deception, scandal, and little to no accountability to the veracity of the claims. They are not a tool to in-depth understanding of an issue, so they serve no public interest. We would be better informed without them.

The second false assumption was that only so-called free media would be available to a candidate. Not true at all. There are a number of ways to actually implement public campaign money, but they don't require that the electorate goes uninformed due to lack of exposure. The government is involved on the spending side, and we, as a people, could decide how much campaign spending we want, and how it gets allocated. It's quite likely that the mass media would have a partnership in this, broadcasting speeches, publishing position papers, covering debates and town halls, etc. There is no reason such a system would under-inform the electorate, there would just be a lot less shady money floating around to misinform us. Plenty of other countries have a handle on this, our system is one of the worst in this regard, kind of like our approach to health care.

[Jim Lane]

9. Address the money problem directly, not via corporate personhood

You write, "You seem to have a pro-corporate-personhood agenda, and you bent the issue to that end...." That first phrase is an unjustified personal attack. My agenda, in this instance, is to limit the ability of Teahadist elected officials to do damage. I explained why, within the context of the current Constitution, corporate personhood serves that end. I still haven’t seen the “better way” to restrain the Scott Walkers of this world.

As for bending the issue of campaign spending to corporate personhood, no, that’s precisely the view I’m criticizing. Citizens United created a major campaign spending problem. The most common response on the left has been to call for abolition of corporate personhood. I was decrying that linkage. Abolishing corporate personhood, without a good substitute for the Due Process Clause, would be terribly dangerous, and wouldn’t address all the important campaign finance issues because rich individual donors would still have inordinate influence.

You agree with me that removing corporate personhood doesn't fix this particular problem (at least not completely). That means we need to address the money issue, whether the money comes from Goldman Sachs or from the Kochs. Once we’ve addressed the money issue, it’s legitimate to ask if there’s something a government might want to do that corporate personhood would prevent and that we think government ought to be able to do. All I can think of is a few minor things at the margins of the Due Process Clause, where right-wing activist judges have given unduly broad scope to the concept of takings – though, again, those rulings would apply to individuals as well as to corporations.

My hypothetical example was of no spending permitted on elections – no private contributions or spending, and no public finance. That won’t be enacted, but my point was that, if it were, it would be struck down as unconstitutional. That’s a way of illustrating that money is speech, at least in some ways and to some extent. Campaign finance regulation shouldn’t be completely prohibited by the First Amendment, but there is some role for free-speech considerations, which complicates the formulation of rules.