Citizens United

Hillary Clinton Lays Out Her Vision For the Supreme Court

In an op-ed today in the Boston Globe, former Secretary of State Hillary Clinton takes on what may be the biggest issue at stake in the 2016 election: the future of the US Supreme Court.

The court’s decisions have a profound impact on American families. In the past two decades alone, it effectively declared George W. Bush president, significantly weakened the Voting Rights Act, and opened the door to a flood of unaccountable money in our politics. It also made same-sex marriage legal nationwide, preserved the Affordable Care Act not once but twice, and ensured equal access to education for women.

On Election Day, three of the current justices will be over 80 years old, which is past the court’s average retirement age. The next president could easily appoint more than one justice. That makes this a make-or-break moment — for the court and our country.

That’s true. As People For the American Way recently laid out in our Judgment Day report, virtually every single important issue—from voting rights to guns to reproductive freedom to workplace fairness to the environment and beyond—will be at stake before the Supreme Court. And because the Justices most likely to retire in the next few years come from both sides of the bench, our country has the opportunity to pull the Court from its dangerous rightward lurch of the last decade—or to solidify a far-right majority for a generation.

But just as important as preventing the next president from appointing more Justices in the mold of Scalia, Thomas and Alito, we need to elect a President who will appoint extraordinary jurists who understand the profoundly progressive nature of our constitution. In her op-ed, Senator Clinton lays out what that looks like.

As president (and a lawyer and former law professor), I’ll appoint justices who will protect the constitutional principles of liberty and equality for all, regardless of race, gender, sexual orientation or political viewpoint; make sure the scales of justice aren’t tipped away from individuals toward corporations and special interests; and protect citizens’ right to vote, rather than billionaires’ right to buy elections.

Secretary Clinton isn’t alone in laying out a progressive vision for the Court. Senator Bernie Sanders has spoken repeatedly about the Supreme Court’s decision in Citizens United and how we need to "overturn this disastrous decision.”  And Governor Martin O’Malley has promised to “appoint judges who don't think corporations are people.”

All of this is good news for progressives—and why People For the American Way has been pushing so hard for more conversation about the importance of the Supreme Court as we head into the 2016 election. But it’s not enough.

In the coming weeks and months we’ll continue to push candidates of both parties to make clear what kind of judges they’d appoint to our nation’s highest courts, because, as Secretary Clinton says, “There’s a lot at stake in this election. Nowhere is this clearer than in the US Supreme Court.”
 

PFAW

Frank Gaffney Links Twitter, Campaign Finance Reform To Sharia Law Agenda

Anti-Muslim conspiracy theorist Frank Gaffney has discovered new plots designed to impose Sharia law on American citizens, this time through Twitter and campaign finance reform.

Gaffney, who recently gained media attention when Donald Trump cited a shoddy poll conducted by his group, the Center for Security Policy, to justify his proposed ban on Muslims entering the country, appeared on the SiriusXM program “Breitbart News Daily” today to discuss Twitter’s new guidelines on abusive behavior.

Twitter announced last week that users will not be allowed to “promote violence against or directly attack or threaten other people on the basis of race, ethnicity, national origin, sexual orientation, gender, gender identity, religious affiliation, age, disability or disease,” which Gaffney said means that remarks “that might offend Muslims” would be banned on the social media platform.

He also claimed that the Obama administration backed a UN resolution supporting religious blasphemy laws, when in fact, the resolution did nothing of the sort, and also accused congressional Democrats of promoting speech codes by backing a resolution “condemning violence, bigotry, and hateful rhetoric towards Muslims in the United States.”

Gaffney even went so far as to allege that a constitutional amendment to overturn the Supreme Court’s Citizens United decision is part of this nefarious plot to ban speech, claiming that people won’t be allowed to speak out against the Islamist agenda “for much longer.”

Ironically, Gaffney then went on to praise the Egyptian government for its crackdown on the opposition — everyone from Muslim Brotherhood members to liberal, secular dissidents — in the media, which is tightly controlled by the state. The Muslim Brotherhood, Gaffney claimed, has infiltrated the U.S. government and political leaders must wake up and denounce its growing power and “pre-violent” agenda.

Citizens United and the Supreme Court

Big money in politics has become an existential threat to our democracy. So how did we get here? Short answer: The Supreme Court.

Citizens United and the Court: How the Supreme Court Created Our Current Money in Politics System, and How it Can Fix It

Big money in politics has become an existential threat to our democracy. So how did we get here?

Short answer: The Supreme Court.

 

Citizens United v. FEC is one of several Supreme Court decisions that have opened the floodgates for unlimited big money in our elections and are now preventing even the most common-sense campaign finance regulations. 

The judicial philosophy that has enabled these decisions is one that is hostile to democratic principles and disproportionately favorable to the rich and powerful. That philosophy is currently held by a slim five-justice majority on the Roberts Court.

A different Court majority, one acknowledging the disastrous errors in the reasoning behind Citizens United and related cases, could eventually overturn those decisions.  However, that couldn’t happen overnight.

Citizens United itself undermined a century of established law allowing for certain limits on campaign spending, but that decision and even more recent ones, like McCutcheon v. FEC and Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, have now established their own precedents that could take several cases and many years to overturn fully.

While a more democracy-friendly Supreme Court majority is essential for so many reasons, the long and daunting road to a Court decision overturning Citizens United shows the persisting need to pursue permanent constitutional remedies, driven by a popular national movement and legislation to pass and ratify a 28th constitutional amendment. 

Beyond Citizens United: Bennett, McCutcheon, and Other Ominous Signs for the Future

After Citizens United, the conservatives on the Supreme Court continued to erode campaign finance regulation by using the principles of free speech to allow wealthy special interests to spend unlimited money in elections.

What Is Citizens United?

In 2010, the Supreme Court ruled in Citizens United v. FEC that corporations have a constitutionally protected right to spend unlimited amounts of money in political campaigns. Citizens United opened the floodgates to unlimited outside spending in our elections and struck a devastating blow to our democracy. The size of one's wallet should not determine the strength of one's political power.

2016 Candidates and the Fight to Get Big Money Out of Politics

There’s no denying it: the destruction of our campaign finance laws has created an out of control system that poses a serious threat to our democracy. The announcement that Republican presidential candidate Jeb Bush has raised over $114 million, along with the fact that the Koch brothers plan to spend almost $900 million, feeds into the fears of many that the U.S. is turning into an oligarchy, where the views of wealthy donors are the only ones that matter. A huge majority of Americans think the campaign finance system needs reform, and this is an issue that presidential candidates can’t ignore.

This week, Democratic presidential candidate Sen. Bernie Sanders, an outspoken opponent of big money in politics, pledged to introduce legislation at the start of the next session that would provide public financing for elections. Hillary Clinton has also stated her support for small-donor public financing. A bill introduced earlier this year by Rep. John Sarbanes (D-MD) attempted to level the playing field by providing voters with $25 to spend on elections and to match small individual donations to a candidate  6 to 1 with public money, which would turn into a 9 to 1 match for candidates that rejected large donations altogether.

In addition, both Sanders and Clinton have expressed their support for a constitutional amendment that would overturn decisions like Citizens United, as has Sen. Lindsey Graham.  These two solutions, public financing of elections and an amendment to get big money out of politics, are both highlighted as measures needed to fix the broken campaign finance system in “Fighting Big Money, Empowering People: A 21st Century Democracy Reform Agenda,” released by PFAW and other campaign finance reform proponents.  As the agenda makes clear, for lasting change we have to move beyond “individual statements or even individual solutions” toward a comprehensive set of policy solutions.

Three out of four Americans are in support of a constitutional amendment, and over 5 million people have signed a petition in favor of it. Many other political leaders at the state and local level from both major parties want to put an end to the post-Citizens United big donor arms race.

 As Sen. Sanders has pointed out:

The need for real campaign finance reform is not a progressive issue. It is not a conservative issue. It is an American issue.

PFAW

Conservatives, As Well As Liberals, Can't Stand Big Money in Politics

 The unpopularity of our post-Citizens United campaign finance system knows no partisan bounds. As wealthy donors have continued to pump larger and larger amounts of money into our elections, a vast majority of Americans, including Republicans, have decided that the system needs to be changed. Three-quarters of self-identified Republicans want more disclosure by outside spending groups, and only 12 percent of Republicans believe that the new campaign finance laws have made the process of nominating presidential candidates better.

 While many in Washington treat this as a partisan issue, at the local and state levels, Republican officials have joined the fight to get money out of politics.  Resolutions urging Congress to adopt an amendment that would set limits on campaign expenditures passed in statehouses with bipartisan support, and 159 Republican officials mostly at the state level have stated their opposition to the Citizens United decision. Now, conservative grassroots activists are starting to turn their attention to this issue.  

 Last Friday, conservatives from organizations such as the Weekly Standard and the American Enterprise Institute met at a forum titled “Finding Common Ground on Money-In-Politics in Washington,” where they explored ways to improve the campaign finance system that could appeal to Americans on both sides of the aisle. Some ideas floated were to reform the makeup of the gridlocked Federal Election Commission, to better enforce bans on foreign contributions to elections, and to incentivize small donations through tax credits.

 

“To leave the field void, to say no one on the right is talking about money in politics, I think is a problem,” said John Pudner, a GOP strategist and executive director of Take Back Our Republic, an organization that promotes campaign finance reform from a conservative perspective.

 

 Public officials from both major parties have spoken out in favor of campaign finance reform, including Democratic Senator Todd Udall, Republican Senator Lindsey Graham, former Republican Senator Alan Simpson, and presidential candidate Hillary Clinton. Even former Republican Congresswoman Michele Bachmann has expressed her frustration with the “absurd” amount of money in our political system. With the movement to get money out of politics enjoying bipartisan support, it’s only a matter of time until this passion turns into real reform at the legislative level.

 

PFAW

Yet Another Poll Shows Americans’ Frustration With Big Campaign Spending

 As the primaries for the 2016 elections get closer, we can expect to see the effects of big money in politics – the new normal after the 2010 Citizens United decision – in full force. Republican presidential candidate Jeb Bush has raised $114 million through both his campaign and Right to Rise, a super PAC backing him. With the Koch brothers alone already pledging to raise $889 million through their network of wealthy donors, it’s likely that this election’s expenditures will well exceed the over $1 billion spent in the 2012 federal elections. As a result, many Americans are fed up with this new campaign finance system.

 A Monmouth University survey released yesterday revealed that only 10 percent of Americans say that the influx of campaign spending post Citizens United has made the presidential nominating process better. Further, 42 percent expressed concern that the new campaign finance landscape makes it more likely that an unqualified or unserious candidate would be able to stay in the race longer.

 These statistics are hardly surprising. A New York Times poll showed that 85 percent of Americans think that the campaign finance system needs either “fundamental changes” or to be “completely rebuil[t].” In addition, three out of four Americans support a constitutional amendment that would limit campaign spending, and 5 million have signed a petition in favor of such an amendment. All around the country, Americans are organizing to let their legislators know that they’re tired of big money’s undue influence in their elections.

 “The public is starting to worry that the Wild West nature of campaign finance is damaging the way we choose presidential candidates,” said Patrick Murray, the polling institute’s director. 

 

 With the public standing strong against letting the wealthy few buy their elections, a national conversation about the harmful effects of Citizens United is taking place, blazing a trail for real reform.

PFAW

Bush Fundraising Numbers Illustrate The Problem of Big Money in Elections

 Earlier this week, Republican presidential candidate Jeb Bush released his fundraising amount for the upcoming elections. Right to Rise, a Super PAC backing the candidate, announced that it had raised $103 million in the last six months, while Bush’s campaign had raised $11.4 million in the two weeks since his announcement, bringing the fundraising total to a stunning $114 million, 17 months away from Election Day. For comparison, at this point in 2011, Restore our Future, a Super PAC supporting Mitt Romney, had raised only $12.2 million.

 These shocking figures demonstrate the growing influence of big money on our elections and political process. $1 billion was spent in the 2012 federal elections, and the Koch brothers alone vowed to raise at least $889 million in 2016 from other wealthy donors. Since the wealthy have policy views that are strikingly different from that of the rest of Americans, this new system has disturbing implications for the state of democracy in the U.S. A Princeton study found that the viewpoints of the bottom 90 percent of income earners have no significant effect on public policy.

 One particularly troubling aspect of the Right to Rise fundraising numbers is their definition of “small donors” as those who donated less than $25,000. The fact that the Super PAC considers $25,000 to be the cutoff for small donations raises questions of exactly how much the 500 who raised more than that amount donated.

 Most Americans agree that the campaign finance system has gotten out of hand. Three out of four Americans support a constitutional amendment that would allow Congress to set limits on campaign spending, and even presidential candidates such as Lindsey Graham, Bernie Sanders, and Hillary Clinton have stated their support for overturning  cases like Citizens United through a constitutional amendment.  With the American people so determined to maintain the integrity of our elections, a national conversation about the influence big money in politics is unfolding, laying a foundation for real reform in 2016 and beyond.

 

PFAW

Americans Push To Shed Light on Dark Money

 With outside contributions in the 2012 federal elections totaling $1 billion, and with the Koch brothers alone already pledging to spend $889 million from their political network in 2016, it’s no wonder 85 percent of Americans agree that the campaign finance system needs serious reform. A particularly disturbing aspect is the prevalence of “dark money,” or political spending by outside Super PACs and so-called social welfare groups with no disclosure requirements. In the 2014 elections, 31 percent of all independent campaign spending was from groups that had no obligation to disclose their donors.

 Despite deep concern from their constituents, Congress has been hesitant to take action against dark money being funneled into our elections. Though Senator Sheldon Whitehouse (D-RI) introduced the Disclose Act, which would require that all organizations disclose their political expenditures, Senate Republicans blocked the Senate majority from being able to vote on it.

 The American people haven’t given up just yet. 73 percent support a constitutional amendment that would allow lawmakers to limit political spending. Further, more than 550,000  have signed a petition urging President Barack Obama to issue an executive order requiring government contractors to disclose their political spending.

 Just this week, advocates for campaign finance reform experienced a major victory when the DC Circuit unanimously upheld the “pay-to-play” provision that bars federal contractors from donating to federal candidates and party committees. In addition, presidential candidates such as Bernie Sanders, Lindsey Graham, and Hillary Clinton have all expressed support for removing big money’s electoral influence. 

 “We have to stop the endless flow of secret, unaccountable money that is distorting our elections, corrupting our political process, and drowning out the voices of our people,” said Clinton in her kick-off campaign speech.

 The movement against dark money clouding our elections has experienced a momentous push as Americans demand a more transparent campaign finance system.

 

 

PFAW

New Hampshire Budget Battle Highlights How Big Money Affects Fiscal Policy

 In our current political landscape, moneyed interests frequently use their financial leverage to impact policy. For instance, Wall Street banks lobbied against a bill introduced by Sen. Elizabeth Warren that would help relieve students of their loan debt. For every dollar the fossil fuels industry spends on lobbying, it receives $103 in government subsidies. Now in New Hampshire, special interests are looking to change the state’s longstanding fiscal policy in their favor.

 New Hampshire Representative Timothy Smith credits the state’s ability to stay afloat financially without imposing a sales or income tax with its substantial business taxes, which bring in sizable amounts of revenue. However, that might change with the introduction of a bill by 13 Republican senators that would significantly lower the business tax, creating a hole of $90 million in the budget. Rep. Smith connected the introduction of this legislation to the fact that special interest groups, many of which would benefit from this change, spent over $900 thousand in New Hampshire’s legislative elections last year.

 Not surprisingly, New Hampshire residents are unhappy with the growing trend of big money influencing politics. Over two-thirds of the state’s voters believe that a constitutional amendment that would overturn decisions like Citizens United should be implemented. Sixty-nine state localities have passed resolutions calling for such an amendment, and over 120 small businesses are hosting Stamp Stampede stations, where patrons can stamp phrases like “not to be used for bribing politicians” on their bills.

 Rep. Smith co-sponsored a bill that called for an amendment to get big money out of politics, which passed in the New Hampshire House with bipartisan support. In addition, New Hampshire Governor Maggie Hassan dismissed the business tax reductions as “unpaid for tax cuts to big corporations” that would “put corporate special interest ahead of New Hampshire's families.” Officials in the state government are listening to their constituents’ concerns about the harmful effects of big money in politics.

 “Our constituents are trying to tell us something. They’re tired of their government serving lobbyists rather than citizens,” said Rep. Smith.

PFAW

States and Localities Fight Back Against Big Political Spending

Since the 2010 Citizens United decision, which opened the floodgates for record-breaking levels of election spending, Americans have pushed for a change. According to a recent New York Times poll, 85 percent of Americans agree that the campaign finance system needs reform, from “fundamental changes” to a “complete overhaul.” Now Americans are going to their state and local governments to spearhead efforts to get money out of politics. 

 Over 125 bills regarding campaign spending have been introduced in 33 statehouses in the last few months, even in the conservative stronghold Texas. Some of these efforts have been bipartisan; Montana’s Democratic governor Steve Bullock collaborated with a Republican-controlled legislature to pass a bill that requires nonprofit “social welfare” groups to disclose their political spending.

 “When somebody's hiding in the shadows and gut-shoots you, you have a right to know who's taking a shot at you,” said Republican Montana state senator Duane Ankely.

  Americans are already working to fix the problem of big money in politics. More than 150 organizations have supported the Unity Statement of Principles which articulates the values underlying key solutions to ensure a democratic system of government where everyone’s voice is heard, everyone follows the same set of rules, and where everyone is held accountable. One important solution to the problem of big money’s influence in politics is a constitutional amendment that would overturn the Supreme Court decisions like Citizens United and let the American people establish reasonable limits on election spending.

  Sixteen states and more than 650 cities have passed resolutions urging Congress to adopt such an amendment. Activists in twelve states recently delivered petitions to their members of Congressmen asking them to support the amendment, and with 311,950 local petitions were delivered to district offices in California alone. Further, nearly three in four Americans support implementing a constitutional amendment. Presidential candidates, such as Hillary Clinton, Bernie Sanders, and even Republican Lindsey Graham, have all spoken in favor of campaign finance reform. The movement to get money out of politics already enjoys bipartisan support at all levels of government, and the stage is set for even more momentum, particularly around an amendment, moving into 2016.

PFAW

Reuters Report: Voters Won't Let Billionaires Buy the Next Election

 With the 2016 national elections upcoming, wealthy donors supporting both parties are gearing up to throw hundreds of millions of dollars into the races; billionaires David and Charles Koch have already pledged to spend $889 million. But a report from Reuters shows that Americans, frustrated by the overwhelming influence of big money in politics, are organizing to fight back.

 In the Philadelphia mayoral race, three billionaires spent $7 million to elect Anthony Hardy Williams. In response, unions and community groups rallied around his challenger, Jim Kenney, organizing a march to stop the wealthy donors from “buying [their] next mayor.” Technological developments are making such organization easier: the creators of Crowdpac, an app that lets entrepreneurs gather funding towards donations, say that they want the app to be used to organize small donors to counteract the effects of billionaire spending.

  This is reflective of a wider trend in public opinion. Americans are sick of letting big money influence their elections; 84 percent say that money has too much influence in political campaigns today and nearly 3 in 4 Americans support a constitutional amendment to overturn the Citizens United decision and limit campaign spending.

“There's growing public awareness about rich people trying to buy elections and that makes the task of winning all the more difficult," said Darrel West of the Brookings Institute.

  Americans have organized at all levels of government to get big money out of politics. Activists have held rallies and marches devoted to the cause and demanded that their representatives in Congress take steps to reduce big money’s influence. Five million of them have signed a petition calling for a constitutional amendment to limit the amount of money spent in politics. Sixteen states and more than 650 cities have already called for an amendment.

 President Obama is on board, and presidential candidates like Hillary Clinton, Lindsey Graham, and Bernie Sanders have expressed support for a constitutional amendment. Clinton and Sanders have also emphasized the importance of nominating Supreme Court Justices who would restore balance to the Supreme Court and restore the American people’s ability to impose reasonable limits on money in politics.

  The movement against big money in politics is gaining momentum as the election nears.

 

PFAW

Scalia and Roberts Don’t Know Best: Here’s How We Take Our Politics Back from Reactionary Court and Billionaire Donors

This piece, by PFAW Senior Fellow Jamie Raskin, was originally published by Salon.

If you take away Prohibition (the 18th Amendment) and its repeal (the 21st), most of our constitutional amendments since the original Bill of Rights have expanded the voting rights and political equality of the people.

Our post-Reconstruction amendments have abolished slavery (the 13th), provided for equal protection of the laws and required reduction of states’ congressional delegations if they disenfranchise eligible voters (the 14th), denied states the power to discriminate in voting based on race (the 15th) and shifted the mode of election of U.S. Senators from the legislatures to the people (the 17th). They have passed woman suffrage (the 19th), given residents of the federal district the right to vote and participate in presidential elections by casting electors (the 23rd), abolished poll taxes in federal elections (the 24th) and lowered the voting age to 18 (the 26th).

Moreover, many of these amendments have directly responded to Supreme Court decisionsdenying the political rights of the people.  For example, the 19th Amendment overturned the Court’s decision in Minor v. Happersett (1875), which held that Equal Protection did not protect the right of women to vote, affirming precedents finding that women’s proper place is in the domestic sphere.  Similarly, the 24th Amendment banning poll taxes in federal elections overturned the Court’s 1937 decision in Breedlove v. Suttles upholding such taxes.

But if you listened only to some of my colleagues in the legal establishment, you might never know that our unfolding Bill of Rights is a dynamic chronicle of the democratic struggles of the people for participatory political equality nor would you know that the people have often had to override reactionary decisions of the Supreme Court in the process.

A lot of lawyers today react with horror to U.S. Reps. Marc Pocan and Keith Ellison’s excellent push for a constitutional amendment to establish an affirmative and universal right to vote against recurring state efforts to disenfranchise people.  And a lot of academics were aghast last summer when every Democratic United States senator supported a constitutional amendment to reverse Citizens United, McCutcheon v. FEC (2014) and Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett (2011).

The amendment, backed by the vast majority of Americans and a surging national campaign that 16 states and more than 650 cities and towns have joined, would restore the people’s power to stop CEOs from spending corporate treasury wealth on political races, to impose reasonable campaign finance limits such as caps on aggregate contributions, and to develop public financing laws with matching grants that help empower poorer candidates to be heard over the roar of big money.

Yet we are constantly invited to believe that, however much big money comes to dominate our politics and control public policy, we must never touch our Constitution. It must be hidden away in the attic where it will be tended by wise Supreme Court justices and law professors who know that the people’s constitutional values will always be inferior to those of the judiciary and the experts.  This attitude betrays our progressive democratic heritage and Thomas Jefferson’s important warning:

Some men look at constitutions with sanctimonious reverence, and deem them like the arc [sic] of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment . . . . But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times.

The country’s most prolific voting rights scholar and blogger, Richard Hasen—a colleague and friend of mine—is the most recent legal academic to pour cold water all over the movement for a constitutional amendment to rebuild the statutory wall protecting democratic elections from the flood of plutocratic and corporate wealth.  This is the wall that has been mostly demolished by the Roberts Court in both Citizens United and the McCutcheon decision.

While Citizens United turned every corporate treasury in the country into a potential political slush fund, McCutcheon wiped out all aggregate limits on federal campaign contributions so that tycoons can now max out to every incumbent Member of Congress–plus all their opponents!  The top half of the top 1 percent can now pretty much bankroll all federal campaigns, which is one reason why run-of-the-mill Republican millionaires and bundlers are complaining to the Washington Post that they have been bypassed in the nation’s wealth primary by “multi-multimillionaires and billionaires.” The bottom half of the top 1 percent is getting a sense of what it is like to be a political spectator in the country’s exclusionary wealth primary.

The Post also reports that public anxiety about plutocracy is becoming a key issue in the presidential election—not just among Democratic activists for whom it is “red meat,” according to Professor Hasen, but for Republicans and Independents too—pretty much everyone who lacks the strategic advantages of Sheldon Adelson and the Koch brothers. Earlier this month, Republican Sen. Lindsey Graham also pointed to the need for a constitutional amendment to fix the damage done by Citizens United.  Indeed, if you don’t think the accelerating takeover of our politics by big money affects public policy in the real world, you may or may not be an academic, but you are definitely too innocent to be let out of the house by yourself.

In launching her 2016 campaign, Democratic presidential candidate Hillary Clinton declared a “big fight” to fix “our dysfunctional political system” by getting “unaccountable money out of it once and for all, even if it takes a constitutional amendment,” and I say good for her. Given Clinton’s legislative and political experience and her own prodigious navigation of our money politics, she obviously knows how the Roberts Court’s magical transformation of for-profit business corporations into political membership groups has completely distorted politics in the Citizens United era.  Of course, some of the Republican presidential candidates are charging her with hypocrisy for seeking to change the plutocratic political system that shapes her campaign, along with everyone else’s, and sullies everyone who touches it.  But this is predictable and pedestrian.  The nihilistic enemies of reform prefer nothing systemic to change just so long as they can keep denouncing Hillary Clinton.

Thankfully there is no talk of hypocrisy in Hasen’s critique, but still all Clinton gets from him is a lot of negative energy.  First, he faults her for not trying to fix “the nation’s disclosure laws,”  which is strange because she supported the Disclose Act, which U.S. Rep. Chris Van Hollen introduced and which Republicans killed, and she has always championed disclosure.  It is also strange because Clinton is clearly treating a constitutional amendment as a last resort in a struggle against a runaway faction of five plutocrats on the Supreme Court.  If I am reading her correctly, Clinton wants unaccountable corporate money—which is now spent by CEOs in our political campaigns on a secret basis and without any consumer, shareholder or citizen control over it—to be subject to public regulation “even if it takes” a constitutional amendment. That doesn’t sound so reckless to me.

For Hasen, it seems sufficient to work for years or decades to mandate disclosure of the billions of dollars in corporate money coursing through the veins of the body politic, and then leave things at that.  He is afraid that actually restoring the power of Congress to impose “reasonable” and viewpoint-neutral limits on corporate political expenditures would be subject to an effective judicial veto through reinterpretation by “a conservative majority on the Roberts Court” and therefore useless.  Well, it is also the case that the addition of the words “equal protection” to the Constitution were effectively nullified through reinterpretation by a Jim Crow Supreme Court between Plessy v. Ferguson (1896) and Brown v. Board of Education(1954).  But does that make passage of the Fourteenth Amendment a bad idea?  The Supreme Court has been a conservative and reactionary institution for most of our history, but that is precisely the reason for the people to write our Constitution in a way that advances and protects strong democracy. Having the right constitutional language in place may not be sufficient to constrain the reactionary elitism of the Supreme Court, but it is certainly necessary.

If we just wait around for new justices to change things and fail to directly engage this constitutional question in the public arena, we can expect to see the few remaining bricks of campaign finance law flattened by the Right and the Court, including base limits on individual  contributions, the Tillman Act’s century-old ban on corporate contributions to federal candidates, the rules against “coordinated expenditures” between candidates and independent spenders, and the limits in 29 states on making campaign contributions during legislative sessions–all of them clearly at odds with the absolutist dogmas of the Right: that political money is political speech, that business corporations are First Amendment-protected political (and religious!) associations, and that the only kind of political corruption we can acknowledge and regulate are quid pro quo transfers tantamount to bribery.

But Hasen, finally, calls a constitutional amendment a “political nonstarter” because of the difficulties of passage.  But here he ignores not only the success that popular movements have had in inscribing democratic values in the Constitution throughout our history, but also the way that serious constitutional movements can reshape the terrain of American politics with or without final passage and ratification.  For example, the heroic movement for the Equal Rights Amendment in the 1970s not only led to widespread adoption of state constitutional amendments and significant federal statutory changes advancing the equal rights of women but also helped shock the Supreme Court into action to apply “heightened scrutiny” to official gender-based discrimination under Equal Protection doctrine.  Constitutional movements can change the mind of the Court.

Whether or not we summon up the two-thirds of Congress and three-fourths of the states needed to pass a strong new anti-plutocracy amendment, the movement for such an amendment is essential to change the degraded assumptions of the Citizens United era.  It will open up space for revival of the Disclose Act, for consideration of the “Shareholders United” legislation that I and other legislators have been advancing at the state level, for progress for small-donor plans like Congressman John Sarbanes’ Government By the People Act, and for an honest debate about Citizens United, which turned on its head two centuries of conservative understanding of what a corporation is.

Even if the best we can hope for is some modest new disclosure rules and a few new Supreme Court justices who tilt towards democracy over plutocracy, as Hasen advises Hillary Clinton, these outcomes are far more plausible and likely with a lively popular constitutional movement on the ground than the defeatist attitude that the Supreme Court always knows best.

PFAW

How Big Money In Politics Is Making It Harder For Criminal Defendants To Get A Fair Trial

When the Supreme Court struck down limits on outside spending in elections in the 2010 Citizens United case, critics pointed to a potentially huge public policy impact in issues ranging from environmental protection to tax policy to health care to voting rights.

But one impact of Citizens United has gone without as much public discussion as it deserves: It’s making it harder for criminal defendants to get a fair trial.

Last fall, the American Constitution Society released a report by two Emory University law professors illustrating that the big spending that Citizens United let loose in state judicial elections created a climate in which elected judges were more reluctant to side with defendants in criminal cases.

Joanna Shepherd and Michael S. Kang found that outside groups seeking to influence judicial elections — usually for reasons unrelated to criminal justice policy — often relied on “Willie Horton” style attack ads implying that targeted judges were “soft on crime.” The proliferation of outside spending and the attack ads that the spending bought, they found, correlated with a decrease in the frequency with which elected state appellate judges ruled in favor of defendants in criminal cases.

“Unlimited independent spending is associated with, on average, a seven percent decrease in justices’ voting in favor of criminal defendants,” they wrote. “That is, the results predict that, after Citizens United, justices would vote differently and against criminal defendants in 7 out of 100 cases.”

Shepherd discussed her findings yesterday at a panel convened by ACS, along with retired Montana Supreme Court Justice James Nelson, the National Association of Criminal Defense Lawyers’ Norman Reimer and Tanya Clay House of the Lawyers’ Committee for Civil Rights Under Law.

Nelson, who was on the Montana Supreme Court when it famously ruled that Citizens United didn't apply to that state's unique history of corruption (Nelson dissented, saying the high court’s ruling applied to Montana, but took the opportunity to demolish the decision while he was at it), said he had lived first-hand the impact of big money in judicial races.

“The fact of the matter is that is when justices running for political office are attacked during their campaigns, it forces them to look over their shoulder constantly,” he said. “And I can tell you that from personal experience. You have to fight to make yourself vote the way the law requires you to vote. And most judges do. But it’s in these marginal cases where there’s a close call and perhaps the case should go to a defendant, it doesn’t go to the defendant.”

The groups spending money on judicial attack ads, he said, “really don’t give a damn about defendants’ rights. They really don’t care. What they want to do is to get somebody onto a court who marches in lockstep with their philosophy, or get somebody off the court that does not march in lockstep with their philosophy.”

Reimer sounded a similar note: “The fight is really about commercial interests. It’s usually about the plaintiffs’ bar versus the corporate interests, the unions, the conservatives. It’s about nothing to do with criminal justice. But because of the fear factor, that’s where you go after somebody.”

“I think we all need to understand and appreciate what’s really at risk here,” Nelson said. “And what’s really at risk is the fair, independent and impartial judicial system that most citizens in this country, and I think most lawyers in this country, simply take for granted. And if the dark money flows from Super PACS and the Koch brothers and RSLC and groups like them get control of the judiciary … That’s what this is all about: getting control of the third branch of government. If they get control of that third branch by spending their way to the top, then we’re going to lose that fair, impartial and independent judiciary that we’ve all come to expect and rely upon. Certainly criminal defendants are going to suffer immeasurably.”

Clay House pointed out that there is already “a different perception of the criminal justice system and judiciary among communities of color.” Pew found in 2013 that 68 percent of black Americans said they were “treated less fairly than whites” in the courts, while the majority of whites were oblivious to racial disparities in the criminal justice system.

Unchecked spending in judicial elections, the evidence shows, may be making that perception, and the reality, even worse.

Cross-posted from the blog of People For the American Way.

How Big Money In Politics Is Making It Harder For Criminal Defendants To Get A Fair Trial

When the Supreme Court struck down limits on outside spending in elections in the 2010 Citizens United case, critics pointed to a potentially huge public policy impact in issues ranging from environmental protection to tax policy to health care to voting rights.

But one impact of Citizens United has gone without as much public discussion as it deserves: It’s making it harder for criminal defendants to get a fair trial.

Last fall, the American Constitution Society released a report by two Emory University law professors illustrating that the big spending that Citizens United let loose in state judicial elections created a climate in which elected judges were more reluctant to side with defendants in criminal cases.

Joanna Shepherd and Michael S. Kang found that outside groups seeking to influence judicial elections — usually for reasons unrelated to criminal justice policy — often relied on “Willie Horton” style attack ads implying that targeted judges were “soft on crime.” The proliferation of outside spending and the attack ads that the spending bought, they found, correlated with a decrease in the frequency with which elected state appellate judges ruled in favor of defendants in criminal cases.

“Unlimited independent spending is associated with, on average, a seven percent decrease in justices’ voting in favor of criminal defendants,” they wrote. “That is, the results predict that, after Citizens United, justices would vote differently and against criminal defendants in 7 out of 100 cases.”

Shepherd discussed her findings yesterday at a panel convened by ACS, along with retired Montana Supreme Court Justice James Nelson, the National Association of Criminal Defense Lawyers’ Norman Reimer and Tanya Clay House of the Lawyers’ Committee for Civil Rights Under Law.

Nelson, who was on the Montana Supreme Court when it famously ruled that Citizens United didn't apply to that state's unique history of corruption (Nelson dissented, saying the high court’s ruling applied to Montana, but took the opportunity to demolish the decision while he was at it), said he had lived first-hand the impact of big money in judicial races.

“The fact of the matter is that is when justices running for political office are attacked during their campaigns, it forces them to look over their shoulder constantly,” he said. “And I can tell you that from personal experience. You have to fight to make yourself vote the way the law requires you to vote. And most judges do. But it’s in these marginal cases where there’s a close call and perhaps the case should go to a defendant, it doesn’t go to the defendant.”

The groups spending money on judicial attack ads, he said, “really don’t give a damn about defendants’ rights. They really don’t care. What they want to do is to get somebody onto a court who marches in lockstep with their philosophy, or get somebody off the court that does not march in lockstep with their philosophy.”

Reimer sounded a similar note: “The fight is really about commercial interests. It’s usually about the plaintiffs’ bar versus the corporate interests, the unions, the conservatives. It’s about nothing to do with criminal justice. But because of the fear factor, that’s where you go after somebody.”

“I think we all need to understand and appreciate what’s really at risk here,” Nelson said. “And what’s really at risk is the fair, independent and impartial judicial system that most citizens in this country, and I think most lawyers in this country, simply take for granted. And if the dark money flows from Super PACS and the Koch brothers and RSLC and groups like them get control of the judiciary … That’s what this is all about: getting control of the third branch of government. If they get control of that third branch by spending their way to the top, then we’re going to lose that fair, impartial and independent judiciary that we’ve all come to expect and rely upon. Certainly criminal defendants are going to suffer immeasurably.”

Clay House pointed out that there is already “a different perception of the criminal justice system and judiciary among communities of color.” Pew found in 2013 that 68 percent of black Americans said they were “treated less fairly than whites” in the courts, while the majority of whites were oblivious to racial disparities in the criminal justice system.

Unchecked spending in judicial elections, the evidence shows, may be making that perception, and the reality, even worse.

PFAW

Pat Robertson: Hillary Clinton Wants To Ban People 'From Criticizing Politicians'

Today on “The 700 Club,” Pat Robertson responded to a CBN report about an effort to organize a convention of states to amend the U.S. Constitution by warning that Hillary Clinton would use such a process to outlaw criticism of political leaders.

Robertson was referring to Clinton’s comments that she is open to a constitutional amendment to overturn the Supreme Court’s Citizens United decision, which opened the floodgates to corporate and dark money in elections. Robertson's warning makes no sense considering that the ruling was delivered in 2010, and political criticism was very lively and legal before then.

“Hillary Clinton actually wants to restrict the First Amendment right of free speech so that they will protect the political class so that people will be prohibited under the Constitution from criticizing politicians,” Robertson said. “It’s appalling, but that’s what she said.”

The Supreme Court in the Citizens United Era: A Century After the Lochner Era, the Roberts Court Imposes a Startling New Corporatism on America

People For the American Way Foundation's latest report explores the extreme pro-corporate jurisprudence of the Supreme Court in recent years, identifying parallels to the Court’s infamous Lochner era a century ago.

PFAW Member Telebriefing: Preview of Upcoming PFAW Foundation Report, The Supreme Court in the Citizens United Era

Yesterday, PFAW Foundation Senior Fellow Jamie Raskin previewed his upcoming report, The Supreme Court in the Citizens United Era, during a member telebriefing. Executive Vice President Marge Baker and Senior Legislative Counsel Paul Gordon also joined the call to answer questions from members and discuss PFAW efforts to promote fair and just courts. Drew Courtney, Director of Communications for PFAW, moderated.

To kick off the call, Raskin reviewed another period during which the Court granted unprecedented constitutional rights to corporations. Lochner v. NY, Raskin explained, began an era in which government at every level was prevented from interfering with corporate contracts—and thereby prevented from passing sensible health and safety regulations.

Today, said Raskin, we’re in an analogous period, with the Supreme Court now using the First Amendment as an excuse for expanding or inventing the political and religious rights of corporations. This time, it’s beyond what we’ve ever seen before; the Citizens United and the Hobby Lobby cases both demonstrate how the Court is putting the interests of corporations over the rights of people and making it more difficult to hold corporations accountable for their actions. Other cases allow corporations to insulate themselves through a host of legal immunities while at the same time, they’re able to spend unlimited amounts of money  influencing who gets elected to office.

In responding to a question from a PFAW member, Baker outlined the two key ways to fight the Court’s trend of empowering corporations over people: Elect Presidents who will nominate, and Senators who will confirm, Justices who share the ideology that corporations shouldn’t be favored in their legal rights over people; and amend the Constitution, which PFAW and other groups are working on now. She also directed PFAW members to www.united4thepeople.org and www.getmoneyoutaction.org to get more involved in these issues.

You can listen to the full telebriefing here:

PFAW Foundation
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