Campaign Finance

  • February 12, 2016

    by Nanya Springer 

    The IRS awarded Karl Rove’s “social welfare” group, Crossroads GPS, tax-exempt status Tuesday, reports Justin Miller at The American Prospect. Groups like Rove’s exploit “the lack of enforcement from the IRS and the Federal Election Commission to give cover to high-dollar donors who want to remain anonymous,” he says.

    Also in The American Prospect, Eliza Newlin Carney investigates the pitfalls of giving political parties the same freedom to raise unrestricted, high-dollar contributions that super PACs and other outside groups currently enjoy.

    In The Atlantic, J. Weston Phippen reports that Officer Peter Liang has been found guilty of manslaughter and official misconduct by a New York jury for the shooting death of Akai Gurley.

    Sara Sternberg Greene at The Marshall Project discusses her forthcoming study that examines why low-income individuals–and low-income African Americans in particular‒mistrust the civil justice system, and the consequences of that mistrust.

    Laura McKenna examines Ill. Gov. Bruce Rauner’s proposal for a state takeover of Chicago’s struggling public school system in The Atlantic.

  • February 5, 2016
    Guest Post

    by Kent Greenfield, a Professor of Law and the Dean’s Research Scholar at Boston College, where he is the faculty adviser for the ACS student chapter. He is the author of the forthcoming Corporations Are People Too (And They Should Act Like It). Follow him on Twitter @Kentgreenfield1

    If government employees can object to funding a union’s political activity, should shareholders have the right to object to a corporation’s? The Supreme Court has answered no, and a new case risks making the gap between the rights of dissenting employees and dissenting shareholders more stark.

    But there is good reason to treat shareholders and employees differently.

    The tension arises from two lines of free speech cases. One protects corporations’ right to spend money in elections while another allows government employees to opt out of their share of union dues. These cases have little in common at first glance. But the corporate spending cases assume that shareholders have no right to object, while the union cases enshrine the right to object as a constitutional value.

    In January, the Court heard arguments in Friedrichs v. California Teachers Association. That case is a challenge to the 1977 case Abood v Detroit Board of Education, which allowed unions to charge employees they represent a fair share of the costs of collective bargaining. Objecting employees can refuse to fund a union’s political involvement, the Court said, but had to pay for non-political activity. Court watchers believe the justices will use Friedrichs to expand government employees’ rights to object to include the non-political.

    Meanwhile, the Court’s protections of corporate speech pay little heed to the interests of dissenting shareholders. In Citizens United v Federal Election Commission six years ago (how time flies!), the Court rejected the argument that shareholders should be protected from corporate spending with which they disagreed. “Allowing government to use the excuse of protecting shareholder rights to stifle the speech of private, voluntary organizations undermines the First Amendment,” said the Court. Critics are already blasting the Court’s apparent inconsistency. Corporations can engage in political activities without concern for the views of shareholders, but unions must offer objecting employees an opt-out from paying even for collective bargaining?

    But it is a false analogy.

    Let me be clear. Overruling Abood would be a mistake, and Citizens United was a blunder. But shareholders and employees are not the same.

    Unions are associations, united by a common and collective purpose. The union itself has a legal duty to represent the interests of its members and others in the bargaining unit. And the union is financed by contributions from its members and others who benefit from its representation.

  • January 28, 2016
    BookTalk
    When Money Talks
    The High Price of "Free" Speech and the Selling of Democracy
    By: 
    Derek Cressman

    by Derek Cressman, a longtime reform advocate and architect of anti-Citizens United voter instruction measures in California, Colorado and Montana.

    Common sense tells us that if money is equivalent to political speech, then that speech is not free. But contemporary campaign finance jurisprudence presumes that paid advertisements, which can indeed disseminate political speech, deserve identical First Amendment protections as the free press. Supreme Court rulings such as Buckley v. Valeo, Citizens United v. FEC, and McCutcheon v. FEC have undone post-Watergate reforms to limit big money in politics and have given a small group of billionaires an outsized role in deciding who runs for office, who wins elections, and what issues dominate our political discourse.

    I wrote When Money Talks: The High Price of “Free” Speech and the Selling of Democracy in order to draw a bright line between paid speech (which is funded by the speaker and foisted on the listener unsolicited) and free speech (which is sought out and usually paid for by the listener when she buys a newspaper, for example). It’s an instruction manual intended to equip citizens with arguments and an assortment of tools to overturn Supreme Court rulings in Citizens United and related cases. It eschews legalese for plain talk, but includes plenty of arguments that lawyers, academics, and advocates will find provocative.

    Once the line is drawn between paid and free speech, some constitutional protections for paid speech remain – as Justice Stevens has eloquently explained. So while we may limit the amount of money anyone spends on paid speech, we may not ban it entirely and must justify the limits with a compelling public interest.

    Legal scholars have long debated the extent to which preventing corruption or promoting equality justify some restrictions on paid speech. I offer a third interest: the wisdom of the crowd. For both voters and legislators to make wise decisions about public policy, we need robust but also balanced information from opposing viewpoints.

  • January 21, 2016
    Guest Post

    by Ron Fein, Legal Director, Free Speech for People

    Six years after the Supreme Court’s Citizens United v. FEC decision, it’s time for campaign finance reformers to move from defense to offense—in the courts.

    Since Citizens United struck down limits on corporate and union political spending, the Court has further chipped away at federal and state campaign finance laws in areas such as per-person overall contribution limits and effective public financing in elections with big-money candidates. These decisions have led to a growing popular movement to amend the Constitution to overturn Citizens United and the doctrines that led to it. They have also led to a florescence of innovative thinking from scholars and advocates on money in politics, corporations, and democracy.

    We have the foundation for a new jurisprudence ready for courts to adopt. And we have evidence of how big money in politics causes real harm to Americans’ wallets, justice system, environment, and even quality standards for children’s surgery.

    Now it’s time to move away from a position of indefinite defense, where James Bopp sets the legal agenda. It’s time to develop game-changing affirmative impact litigation challenging the role of big money in politics. It’s time to stop being amici in support of defendants and start being plaintiffs.

    Of course, we should be strategic in identifying the most likely avenues for success in the medium term. One area is state judicial elections, where the campaign finance reform position has won twice in a row at the Supreme Court, in cases stemming ultimately from concerns about judicial impartiality. Professors Erwin Chemerinsky and James Sample have argued that the due process implications of campaign spending in judicial elections justify a constitutional analysis quite different from legislative and executive elections.

    Another promising area involves challenging super PACs, the contribution-limit-evading mechanisms created by SpeechNow.org v. FEC, a D.C. Circuit decision that moved well beyond what the Court actually decided in Citizens United. Professors Laurence Tribe and Albert Alschuler have argued that the Supreme Court may be ready to overrule the court of appeals even while holding fast to Citizens United. Finally, we need to think beyond federal court and develop innovative cases based on state constitutions.

  • January 13, 2016
    BookTalk
    Plutocrats United
    Campaign Money, the Supreme Court, and the Distortion of American Elections
    By: 
    Richard L. Hasen

    by Richard L. Hasen, Chancellor’s Professor of Law and Political Science, University of California, Irvine School of Law

    As I was working on my new book, Plutocrats United: Campaign Money, the Supreme Court, and the Distortion of American Elections, a UC Irvine colleague asked me a key question: Who was I writing this book for? The answer I gave him, half-jokingly, was that I had written the book for a single person: Justice Elena Kagan.

    You see, before Justice Kagan joined the Supreme Court, she was Professor (and later Dean) Kagan, a progressive thinker to be sure but one who expressed some serious skepticism about a 1990 Supreme Court case, Austin v. Michigan Chamber of Commerce, which upheld the ability of the government to require business corporations to pay for their political expenditures out of a separate PAC fund. Professor Kagan queried whether Austin represented a government passing a campaign finance law to protect incumbents, and whether the Court was wrong in rejecting a First Amendment challenge to the law. The Supreme Court later overturned the Austin case in its notorious 2010 Citizens United case.

    The Kagan story ends with Kagan as Solicitor General of the United States defending the corporate PAC requirement in the Citizens United case, then losing that case, then getting an appointment to the Supreme Court despite misplaced conservative cries that she wanted to ban books, and now with Justice Kagan dissenting from the conservative Supreme Court’s deregulatory campaign finance decisions.

    In Plutocrats United, I argue for a fundamental rethinking of 40 years of campaign finance decisions, beginning with the 1976 case of Buckley v. Valeo. In Buckley, the Court held that the government might have an interest in limiting money in politics to stem corruption, but not to assure political equality, an interest the Buckley Court called “wholly foreign to the First Amendment.”