Campaign Finance

  • August 11, 2016
    Guest Post

    by Michael Vargas, Associate at Rimon

    In his Citizens United v. FEC dissent, Justice Clarence Thomas sent up a signal flare that could have far greater repercussions than the landmark decision itself. In his dissent, Justice Thomas argued that disclosure requirements on corporations were unconstitutional compelled speech because they opened up corporations to public reprisal for the information found in those disclosures, and he steadfastly rejected the argument that these disclosure requirements could be justified on the grounds that they simply “provided voters with additional information.” This startling pronouncement, if applied to all corporate “speech,” would effectively nullify all corporate disclosure laws currently on the books, including most if not all Wall Street regulations. This fear was largely an academic one, until the D.C. Circuit ruled, in National Association of Manufacturers v. SEC, that the Securities and Exchange Commission (SEC) rules on Conflict Minerals were unconstitutional in an opinion that sounds remarkably similar to Justice Thomas’ Citizens United dissent. There can be no doubt that all federal regulation that uses disclosure as a means of oversight is now in very real peril from conservative judges who adhere to Thomas’ beliefs.

    The Battle to Prohibit Conflict Minerals

    For the people of Zaire, 1996 brought with it the end of the repressive and corrupt dictatorship of Joseph Mabutu, and the beginning of a series of civil wars that continue to rage today. The country, renamed the Democratic Republic of the Congo (DRC) in 1997, is a humanitarian nightmare, as warlords and mercenaries use rape and murder to enslave the population and put them to work in mines extracting minerals such as gold, tin, tungsten and tantalite (3TG). These 3TG minerals, used to manufacture many high-tech devices such as cellphones and computers, are then sold in western markets with the proceeds used to finance the civil war in the DRC. International human rights organizations and even the United Nations have long identified these “conflict minerals” as one of the most important humanitarian crises in the world today.

  • June 2, 2016
    Guest Post

    by Senator Sheldon Whitehouse (D-R.I.). Sen. Whitehouse is a member of the Judiciary Committee as well as the Health, Education, Labor, and Pensions (HELP) Committee, Budget Committee, Environment and Public Works Committee, and Special Committee on Aging.

    The recent op-ed by two Republican members of the House of Representatives argues that their efforts to impeach the IRS Commissioner are on the level. Maybe.

    But when you look at how the Republican Party is paid for, Republicans have a very good reason for trying to keep their boot firmly on the neck of the IRS. Keeping an already timid bureaucracy even more intimidated has a significant strategic benefit.

    There is a dirty secret to the "dark money" organizations that plague our elections: They're not supposed to be in our elections. And if the IRS were doing its job, they wouldn't be.

    If we were rid of dark money, it would make the American people happier, as we are fully creeped out by the seemingly unlimited influence-buying in politics. But big special interests which make a killing off their political "investments" would not be happy at all. They might have to act out in the daylight where we can watch them; and they much prefer the dark to do their dirty work of killing climate change and campaign finance legislation, preventing Medicare from negotiating drug prices, and unleashing Wall Street from regulation.

    They also prefer the Republican Party, so protecting dark money gets the full attention of Party leaders in Congress. For them, political dark money has become as important as an air hose to a deep sea diver.

  • 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.