The Citizens United decision brought about the rise of super PACs, and empowered 501(c)(4) public advocacy groups and 501(c)(6) trade associations to participate in (at times secretly-funded) electoral advocacy. The resulting influx of money into the election cycle has considerably altered the political landscape – and D.C. lobbyists have taken note.
As reported by Dave Levinthal at POLITICO, interest groups are utilizing super PACs to ‘twist arms.’
So for some issue interest groups, super PACs are a potentially major complement to — if not upgrade over — traditional, Capitol Hill lobbying in their ability to bring heat on lawmakers and twist their arms toward their agendas.
“If you’re a lobbyist, you’re talking with a legislator and mention you’re forming a super PAC, their ears are really going to perk up just because you said the words ‘super PAC,’” said Shana Glickfield, a partner at public affairs firm Beekeeper Group. “It’s such a big, scary thing — and can give you an extra edge of influence.”
One of the first powerful lobbying firms to create a super PAC for additional influence was the National Association of Realtors, which has since rewarded lawmakers friendly to their agenda with hundreds of thousands of dollars in advertisements and air cover. A host of other lobbying groups have done so as well.
As People For noted in our written testimony for the Senate Constitution Subcommittee hearing this past July on the need for constitutional remedies to overturn Citizens United, the power of super PACs is twofold. Not only can special interest groups now spend freely on elections to promote their policy agenda, they can threaten to spend freely, effectively achieving the same result.
Of course, to accomplish its goals, a corporation need not actually spend such sums in every race they are interested in. Far from it. Especially for offices or in areas where electoral races are generally not overwhelmingly expensive – in other words, for most state and local legislative and judicial elections throughout the United States – the implied threat to spend large expenditures against elected officials could easily be enough to “persuade” them to take the “right” position. Conversely, the promise of an enormous windfall in supportive corporate independent expenditures could have an equally persuasive effect.
Such corruption leaves no evidence: no paper trail, no recordings, no ads. But it poisons our nation’s democracy.
Do D.C. lobbyists really need more tools in their arsenal to effectively ‘twist arms’? Are Sacramento lobbyists, Albany lobbyists, Tallahassee lobbyists or any other state-based lobbyists in desperate need of influence?
The obvious answer is no. Yet in the post-Citizens United world, the game is rigged, and those with power only accrue more of it. The people, meanwhile, are left with less and less of a say in government. It’s no wonder the Democratic Party, President Obama, nearly 2,000 public officials, seven state legislatures and over 300 cities/towns, and 1.98 million Americans are in support of a constitutional amendment that would overturn the Citizens United decision.
Two days ago, President Obama sat down for a live “Ask Me Anything” session on the popular social news website Reddit. Of the ten questions President Obama was asked, one pertained to money in the politics:
What are you going to do to end the corrupting influence of money in politics during your second term?
Although not specifically asked about the amendment strategy, President Obama raised the issue in his answer:
Money has always been a factor in politics, but we are seeing something new in the no-holds barred flow of seven and eight figure checks, most undisclosed, into super-PACs; they fundamentally threaten to overwhelm the political process over the long run and drown out the voices of ordinary citizens. We need to start with passing the Disclose Act that is already written and been sponsored in Congress - to at least force disclosure of who is giving to who. We should also pass legislation prohibiting the bundling of campaign contributions from lobbyists. Over the longer term, I think we need to seriously consider mobilizing a constitutional amendment process to overturn Citizens United (assuming the Supreme Court doesn't revisit it). Even if the amendment process falls short, it can shine a spotlight of the super-PAC phenomenon and help apply pressure for change. [Emphasis added]
President Obama already had, through spokespeople, acknowledged his support of constitutional remedies to overturn Citizens United; he had not however done so himself, until now. The very fact that the sitting U.S. President is speaking seriously about the use of constitutional remedies to overturn Citizens United shows how far the movement has come. The movement has clearly made its move to the mainstream.
To date, here is what PFAW and our allies have accomplished:
- 1,951 public officials are now in support of constitutional remedies
- 96 House Representatives; 29 Senators
- 14 amendment resolutions introduced in the 112th Congress
- Over 275 cities and towns have passed resolutions supporting an amendment
- 7 State Legislatures have passed resolutions (HI, NM, VT, MD, RI, CA, and MA)
Yesterday, House Democrats held a press conference highlighting the need to clean up the election system through what they are calling the DARE initiative. (To note, this is the same initiative Minority Leader Nancy Pelosi presented and spoke about in length at PFAW’s 30th Anniversary celebration this past June.) The acronym stands for the following:
D – Disclose
A – Amend
R – Reform
E – Elect
In just a short period of time, the impact of the Supreme Court’s egregious ruling in Citizens United v. Federal Election Commission, which opened the floodgates to corporate and special interest spending in our elections, has been felt nationwide. In response, a growing chorus of activists and organizations are mobilizing to overturn the decision by amending (the A in DARE) the Constitution. As evidenced by the press conference, public officials are responding to this movement. Nearly 2,000 are already on record in support of amending the Constitution to overturn Citizens United, including 92 Representatives in the House.
In attendance of the press conference were Minority Leader Nancy Pelosi, House Democratic Caucus chairman Rep John B. Larson (D-CT.), U.S. Rep. Chris Van Hollen (D-MD), U.S. Rep. John Sarbanes (D-MD.), U.S. Rep. Adam Schiff (D-CA.), U.S. Rep. David Cicilline (D-RI), U.S. Rep. James Clyburn (),U.S. Rep Dennis Kucinich (D-OH), as well as Nick Nyhart, President and CEO of Public Campaign.
Nyhart outlined three critical steps needed to remedy this: full disclosure, small donor and citizen-led funding of elections, and the ability to limit donations from large corporate entities.
Recently Republicans and Democrats clashed on the Disclose Act, which would have required the disclosure of all major donors in the election process. Leader Pelosi expressed her concern that dark money is “suffocating the airwaves and suppressing the vote.”
Not so long ago, disclosure was a bi-partisan issue. Congressman Van Hollen made this clear, quoting Senate Minority Leader McConnell’s (R-KT) statement from 2000 endorsing such reforms: “Why would a little disclosure be better than a lot of disclosure?”
Expressing his passion about the issue, Congressman Dennis Kucinich, motioning toward the Capitol building, told reporters, “in post-production you might want to include a ‘For Sale’ sign in front of that.” Kucinich stated, “Let’s be candid, the system is for sale.” The outgoing congressman urged immediate action on removing the corrupting influence of dark money, lest we lose our republic to the influence of special interests. This government must remain in the hands of the people - or as Mr. Nyhart put it, remain “Of, by, and for the many… not the money.”
[Dylan Hewitt, Amelia Coffey, and Michael Jameson contributed to this post]
Two weeks ago, Senate Democrats filed cloture on the Republican-led filibuster of the DISCLOSE Act, and failed to achieve the necessary 60 votes to bring the bill to the floor. Thus the DISCLOSE Act died once again, as it did in 2010, at the hands of Republican Senators who prefer obstruction and dark money over functionality and transparency. And unless there is an abrupt, unexpected reversal of the tide in the Senate, those who wish to bring a higher level of accountability to our democracy will, in the short term, have to explore alternative routes to bring about such reforms.
Those alternative routes exist in the federal agencies that interpret laws passed by Congress, but that so far have done a poor job in doing so correctly.
For confirmation of this, one need only look at the significant dilution of the McCain-Feingold Act of 2002, which had strict provisions requiring outside groups – including 501(c)(6)’s & 501(c)(4)’s – who participate in electioneering communications (any communication about a clearly identified candidate on satellite, T.V., or radio within 30 days of a primary or 60 days of a general election to a relevant targeted audience) to disclose their donors. The Supreme Court’s Citizens United ruling upheld this part of the law, with eight of the nine justices in agreement.
However, transparency would take a back seat with the Federal Elections Commission’s interpretation of the law, in which a loophole to disclosure was written into their regulations. That FEC regulation only requires disclosure of donors for 501(c)(4)’s and 501(c)(6)’s if those donors specifically earmark their donations for the purpose of electioneering communications. Thus as long as a donor does not require specifics for an organization on how to use their donation, disclosure of the donor’s identity is not legally required. Yet the disclosure provisions of McCain Feingold were not written – and were never meant to be interpreted – this way.
On April 2, 2012 Congressman Chris Van Hollen of Maryland’s 8th District won a lawsuit he filed against the FEC challenging the agency’s interpretation of the law. D.C. District Court Judge Amy Jackson found that the FEC had severely watered down existing legal requirements to disclose donors in campaign-related ads, stating “…Congress did not delegate authority to the FEC to narrow the disclosure requirement through agency rulemaking.” While Judge Jackson’s ruling is supposed to restore the statutory requirement that requires greater disclosure of the donors who provide funding for electioneering communications, it remains unclear that it will be implemented. Paul Ryan, FEC program director and associate legal counsel at the nonpartisan Campaign Legal Center has assessed, “Unfortunately, it’s highly unlikely that this dysfunctional commission will heed the court’s order anytime soon.” Implementation will also be delayed further due to appeals from conservative groups.
Had Congress’ law had been implemented accurately, full disclosure would have been the reality of the 2010 congressional races, which instead were marred by over $135 million in undisclosed spending; and which continues to mar the current election cycle.
Another party at fault is the IRS, which has sat idly by as a number of overtly politically-based 501(c)(4)’s have engaged in an overabundance of election activity when they are supposed to be first and foremost social welfare organizations. It seems obvious to all that the primary activity of organizations like Crossroads GPS and American Action Network is to engage in political advocacy and spend hundreds of millions of dollars influencing elections. Due to IRS inaction on the issue, the donors of these organizations need not be publicly disclosed.
In June the IRS finally initiated steps to to investigate some of these organizations taking advantage of tax exempt status while at the same time being overly engaged in election processes, in particular Crossroads GPS. However it is unlikely that any actions or penalties will be taken or applied in the near future leaving these huge, undisclosed, tax-exempt pools of money to flood our electoral process for the foreseeable future.
Moreover, and perhaps more importantly, IRS regulations that implement Internal Revenue Code distort the intent of the law. As noted by Democracy 21 and the Campaign Legal Center in a letter to IRS commissioners:
The Internal Revenue Code provides that section 501(c)(4) groups must engage "exclusively" in social welfare activities. … The regulations implementing this provision state, however, that "social welfare" organizations must be "primarily engaged" in social welfare activities.
If, as Congress intended, 501(c)(4) groups could achieve their tax-exempt status only by “exclusively” engaging in social welfare activities, the Crossroad GPS’s of the world would instantly have their (c)(4) statuses revoked. Instead, as we’ve witnessed with the tax-exempt status of the American Legislative Exchange Council, the big money players are able to indirectly charge the American taxpayer for their lobbying and political activity by not paying their fair share, benefitting their entrenched interests and not the country as a whole.
We must not give up on transparency in our democracy, especially if our electoral process is to remain awash in unlimited spending under the Citizens United ruling. In the not so distant past this was the dream of Republicans and Democrats alike. In his 2002 memoir “Worth Fighting For,” John McCain, a former champion of transparency, wrote “By the time I became a leading advocate of campaign finance reform, I had come to appreciate that the public's suspicions were not always mistaken. Money does buy access in Washington, and access increases influence that often results in benefiting the few at the expense of the many.” We await a return to this sober analysis by the GOP, and by the agencies who implement the laws Congress passes; the foundations of our republic are dependent on it.
Last week, the Constitution Subcommittee of the Judiciary Committee of the U.S. Senate held hearings entitled, “Taking Back Our Democracy: Responding to Citizens United and the Rise of Super PACs,” which examined the devastating Citizens United decision, and the need to amend the Constitution to overturn it. As acknowledged by the hearings’ participants – and as evidenced by the overflow crowd who came to see the hearing in person, as well as the 1.9 million petition signatures calling for an amendment that were delivered to the committee and on display in the room – these hearings were held in response to the growing grassroots movement across the country in support of constitutional remedies, and demonstrated a form of bottom-up democratic participation seldom witnessed in Washington.
As noted by the Executive Vice President of PFAW, Marge Baker, “… by holding these hearings, our elected representatives are honoring the millions of Americans who are calling for a Constitution that ensures that “We the People” means all the people, not just the privileged few.”
The first panel of the hearings featured testimony from Senator Max Baucus, Senator Tom Udall, Senator Bernie Sanders, and Representative Donna Edwards, all of whom have introduced amendment resolutions in the 112th Congress. Although their approaches differ, one theme remained consistent throughout their testimonies: since legislative remedies alone cannot undo the damage wrought by Citizens United, the amendment strategy must be employed to take back our democracy.
In his opening remarks, Senator Durbin, who chairs the Constitution Subcommittee, echoed the thoughts of many of his colleagues – currently 28 U.S. Senators are in support of an amendment, as are 92 U.S. Representatives – by stating, “After much deliberation, with some hesitation, I have reached the conclusion that a constitutional amendment is necessary to clean up our campaign finance system once and for all.”
Indeed, although we strongly advocate for an amendment that would restore the American people’s ability to regulate election spending, People For The American Way agrees that the amendment process should not be taken lightly. As we noted in the written testimony we submitted for the hearings:
Amending the United States Constitution is not something we recommend lightly, but the danger caused by the Roberts Court’s distortion of the First Amendment requires us to take corrective action. Some who are genuinely concerned about the threat to our democracy might nevertheless be reluctant to tamper with perhaps the greatest legal document in world history. As an organization that deeply respects the Constitution, we understand that reluctance, and we address this section of our comments to those of that view.
The American people, as shown by polling PFAW conducted on the issue, understand better than their elected representatives the need to support constitutional remedies to overturn Citizens United. The second panel of the hearings reflected this sentiment. It featured testimony from former Louisiana Governor and 2012 GOP presidential candidate Charles ‘Buddy’ Roemer and the celebrated legal scholar Professor Lawrence Lessig. As Professor Lessig stated in his testimony, “simply, the people have lost faith in their government,” and therefore deep reform is now necessary. Testifying at the request of the ranking Republican member of the subcommittee, Senator Lindsey Graham, was senior fellow of the Cato Institute, Ilya Shapiro. He opposed not only the amendment proposals in the hearings, but also the DISCLOSE Act, which Republicans recently blocked from coming to a vote in a highly partisan filibuster.
In a piece published last week, Senior Fellow of People For the American Way Professor Jamie Raskin stated, “The American people have been forced several times to amend the Constitution to reverse the damage caused by the Supreme Court when it acts in collusion with the enemies of social justice and popular democracy.” Professor Raskin then cited the Dred Scott decision, Minor v. Hapersett, and Breedlove v. Suttles all as cases that solidified unjust and undemocratic judicial systems; and all of which were later overturned by constitutional amendment.
It is up to the American people to ensure that Congress continues to examine the amendment strategy, and that Citizens United is added to that list. Video highlights of the hearings are featured below, while individual testimonies can be found on PFAW’s YouTube Page.
Today, concerned citizens and organizations delivered 1,959,063 signatures calling for overturning Citizens United and related cases by amending the Constitution. The petitions were delivered in connection with hearings held by the Constitution Subcommittee of the Senate Judiciary Committee to examine the impact of Citizens United, Speech Now and related cases and the need for constitutional remedies to restore the democratic promise of America. The millions of Americans whose names appear on these petitions reflect the deep-seated public concern about the state of our democracy and the growing grassroots movement to restore government, of, by, and for the people.
Marge Baker, Executive Vice President of People For the American Way:
“The interests of the American people should be front and center in our elections, and today, 1.9 million Americans made that point loud and clear. But despite the message we sent Congress today, all over the country, our voices are being drowned out by the powerful corporations and the super wealthy. Short of changing who sits on the Supreme Court, amending the Constitution is the only way to undo the damage done to our democracy by Citizens United. The American people overwhelmingly support that idea, and by holding these hearings, our elected representatives are honoring the millions of Americans who are calling for a Constitution that ensures that “We the People” means all the people, not just the privileged few.”
Leslie Watson Malachi, Director of African American Ministers in Action, a program of People For the American Way:
“This petition drive proves that our collective voice can be the spark of change. Because millions of people have signed their names to proclaim that our democracy is not for sale, this grassroots movement has the power to take back our elections and ensure government by people through fair and transparent elections. We’ve made it clear to our elected representatives that a constitutional amendment is necessary to uphold that ideal. These hearings show how far this movement has come.”
Robert Weissman, President of Public Citizen:
“The choice is simple: We can have a working democracy, in which the people rule, or we can have a Citizens United-facilitated plutocracy, in which giant corporations and the super-rich dominate elections. Rescuing our democracy requires that we overturn Citizens United and other decisions that constitutionalize the “right” of corporations and the super-rich to buy elections. With no prospect of the Court revisiting the damaging decisions it has inflicted, we need a constitutional amendment to reestablish the simple principle that Democracy is for People.”
Justin Ruben, Executive Director of MoveOn.org Political Action:
“We've seen this summer how a handful of billionaires are trying to buy the election. That's one of the reasons nearly 700,000 MoveOn members have spoken out in favor of overturning Citizens United, getting big money out of our elections, and preventing our democracy from being sold to the highest bidder.”
Becky Bond, Political Director of CREDO Action:
“How can the American people have an equal voice in our democracy when corporations are flooding the political system with millions in secret campaign donations? We must pass a constitutional amendment to overturn Citizens United, end corporate personhood and help get shadowy money out of politics for good.”
Bob Edgar, President & CEO of Common Cause:
“Super PACs have transformed our elections into the sport of kings. Billionaires and corporations are pooling unlimited sums of money into joint accounts, pledging astronomical sums in support of or opposition to candidates, and recklessly drowning out the voices of the American people. These corporations and mega donors are motivated by an expectation of influence and access, often at the expense of the public interest. We cannot afford to auction off our vibrant democracy to the highest bidder.”
Lisa Graves, the Executive Director of the Center for Media and Democracy/ ALECexposed.org:
"While billionaires are openly writing million-dollar checks to Super PACs, millions more is being secretly funneled to front groups whose ads may affect who wins and wields power over people and policy. Deceptively named nonprofit groups are becoming the Swiss bank accounts of elections, receiving secret multi-million dollar gifts that buy ads to influence how Americans vote. We may never know the true identity of those attempting to buy our elections through such shadowy groups -- whether they are corporations or people, domestic or foreign -- but we do know American democracy is increasingly for sale and that's why We the People are demanding that the Constitution be amended to fight this corruption."
Peter Schurman, Campaign Director at Free Speech For People:
“For a campaign we all knew would be difficult, the Senate hearing today is a major milestone: it shows that the growing movement for a constitutional amendment is starting to make a dent in Washington. It's time for Congress and the states to overrule the Supreme Court and make it clear that we the people, not we the corporations, are in charge of American democracy.”
Kaitlin Sopoci-Belknap, National Field Organizing Director, Move to Amend
"In community after community citizens are making clear through ballot initiatives and resolutions that they want their elected representatives to pass an amendment to overrule the Court by abolishing corporate personhood and the doctrine of money as free speech. These hearings are one step toward achieving that amendment, and we won't stop our efforts until the majority of the members of Congress are behind us and show that they understand that their job is to serve the people, not corporations or the privileged few."
David Levine, American Small Business Council CEO and Co-Founder:
“Business leaders would rather invest their money to create jobs than have to compete with big business bank accounts to be heard, and they are fighting back. More than 2,000 business leaders have joined the American Sustainable Business Council's (ASBC) Business for Democracy campaign to fight for a constitutional amendment that overturns the Citizens United decision.”
Eric Byler, President of the Coffee Party Board of Directors:
“Public awareness about money in politics is growing rapidly and crossing all cultural and political divides. Just like the founders of this nation, we are responding to an abuse of power by elite profiteers who feel entitled to govern over people. The task before us is to finish what our founders started — not to start a revolution but to complete one — by amending the Constitution and reestablishing the right to self-governance for people; not profiteers.”
Blair Bowie of U.S. PIRG:
“For nearly forty years, the Supreme Court has been driving us down a road that will inevitably dead end in the demise of American democracy. In equating money with speech the Court rejected the notion that in a democracy the size of your wallet should not determine the volume of your voice. Instead it enshrined the rights of artificial entities and ultra-wealthy individuals to drown out the voices of ordinary citizens in a flood of often secret cash. Ultimately, we can only get out of this judicial rut by amending the U.S. Constitution to clarify to the Supreme Court that the first amendment was never meant to be used as a tool for special interests to co-opt our democratic process. Today’s hearing and the massive citizen mobilization across the country since Citizens United show that the American people are ready to turn this car around.”
Stephanie Taylor, Co-Founder of the Progressive Change Campaign Committee:
"An unprecedented amount of secret money is already surging through our political system because of the Citizens United ruling. As we’re demonstrating today, there is huge public support for passing a constitutional amendment to overturn Citizens United. Americans want to take our democracy back from big corporations and billionaires. Passing this amendment is a critical first step.”
Bob Fertik, President of Democrats.com:
“The Supreme Court's decision in Citizens United was catastrophic for American democracy. The American people now see the results in the form of endless TV attack ads, most of which are aimed at destroying President Obama. The Super PAC Billionaires who bought these ads remain largely anonymous, like hidden puppeteers pulling on strings. One million members of Democrats.com are united in our determination to pass a Constitutional Amendment to overturn Citizens United and replace Super PACs and other corrupt election money with clean public funds. Money out, voters in!”
Christopher Campbell, Wolf PAC:
"Our democracy is in serious trouble. It's time to change that. It's time we end the corporate takeover of our government. The only way to do that is to bypass the corporate-owned Congress and Supreme Court – and pass a constitutional amendment. We must pass a 28th Amendment saying that corporations are not people and they do not have the right to buy our elections."
Larry Cohen, President of Communications Workers of America:
“Our electoral process should be about the rights of individuals to participate in our nation's politics. That's what democracy looks like. The Communications Workers of America commends elected officials at every level of government who are fighting to restore fairness to our political process. The role of money in politics must be completely overhauled. Today it dwarfs everything else and is distorting our democracy. Working with other progressive organizations, CWA is committed to stopping the flow of secret cash to political campaigns and making it clear to all dollars are not speech. This effort will require constitutional changes and other measures to overturn the U.S. Supreme Court’s Citizens United decision, which opened the floodgates for secret spending and today enables billionaires to buy our nation’s elections. We also will work for the public financing of elections, because without these very real changes, the one percent will continue to control our politics.”
Natalie Foster, CEO of Rebuild the Dream:
"Throughout U.S. history, whenever something in our democracy hasn’t been working, we’ve amended the Constitution. We’ve amended the Constitution to protect and extend the right to vote. Even basic rights we take for granted, like freedom of speech, are from amendments. Now, we must get big money out of our politics. This is another moment to make history and form a more perfect union together. "
The vast majority of Americans oppose Citizens United and related cases, and a grassroots movement calling on public officials to take action is growing stronger. This year, 51 organizations submitted a letter to congressional leaders calling for these very hearings, and more than 1,800 public officials from 41 states are already on record in support of constitutional remedies. More information on the effort to amend the Constitution can be found at www.united4thepeople.org.
Justice Antonin Scalia gave a TV interview last night on CNN in which he reminded Americans of his right-wing ideology. Since Mitt Romney has said he would nominate Supreme Court Justices like Scalia if elected president, the interview also served as a warning to Americans of what's at stake this November. Talking Points Memo summarizes some of the interview's highlights:
Scalia defended Citizens United, which took elections from the people and handed them to often-secretive powerful interests that drown out the voices of non-millionaires. He added, however, that people are "entitled" to know who is financing the messages they are bombarded with.
In an era when Roe v. Wade has already been watered down, Scalia repeated his belief that women have no constitutional right to abortion at all. "[M]y only point is the Constitution does not say anything about it. It leaves it up to democratic choice." (That would be news to those who adopted the Ninth Amendment specifically to counter future assertions that the rights specifically mentioned in the Constitution are a ceiling, not a floor.)
Scalia also stated his opinion that torturing an innocent person taken from a battlefield isn't cruel and unusual punishment prohibited by the Eighth Amendment. "I don't think the Constitution addressed torture, it addressed … punishment for crimes."
CNN adds another highlight:
When asked if he had ever broken the law, the justice said, "I've had a few speeding tickets, though none recently."
Let's hope for his sake that the traffic stop didn't lead to an unwarranted and humiliating strip search, as occurred to Albert Florence. When Florence challenged the strip search as unconstitutional, Scalia was part of the conservative 5-4 majority that denied his claim.
Do we really want a president who looks to Antonin Scalia as a model to emulate?
Add this to the good news/bad news mix from the Supreme Court's healthcare decision: Because of the good news (Chief Justice Roberts voted to uphold the constitutionality of the Affordable Care Act), we get the bad news that his standing among the nation's Democrats has significantly increased. This collective amnesia about who John Roberts is and what he has done is disturbing, especially since the direction of the Court is one of the most important issues upon which Democrats should be voting in November.
A new Gallup Poll shows wild fluctuations in Democrats and Republicans' assessment of Chief Justice John Roberts since their last poll in 2005, a change Gallup attributes to his role in upholding the Affordable Care Act. Roberts' approval rating among Republicans has plummeted 40 percentage points from 2005, falling from 67% to 27%. In contrast, his favorability among Democrats has risen from 35% to 54%. That the healthcare decision is a catalyst of this change is supported by a PEW Research Center poll last week showing that between April and July, approval of the Supreme Court dropped 18 points among Republicans and rose 12% among Democrats.
Yes, John Roberts upheld the ACA, but only as a tax. At the same time, he agreed with his four far right compatriots that it fell outside the authority granted Congress by the Commerce Clause, leaving many observers concerned that he has set traps designed to let the Court later strike down congressional legislation that should in no way be considered constitutionally suspect. He also joined the majority that restricted Congress's constitutional authority under the Spending Clause to define the contours of state programs financed with federal funds.
Just as importantly, Roberts's upholding the ACA does not erase the past seven years, during which he has repeatedly been part of thin conservative majority decisions bending the law beyond recognition in order to achieve a right wing political result. John Roberts cast the deciding vote in a number of disastrous decisions, including those that:
Oh, and then there's that little 5-4 Citizens United opinion that has upended our nation's electoral system and put our government up to sale to the highest bidder.
With a rap sheet like that – and this is hardly a complete a list – no one should be under the illusion that John Roberts is anything but a right-wing ideologue using the Supreme Court to cement his favorite right-wing policies into law.
Next term, Roberts is expected to lead the judicial front of the Republican Party's war against affirmative action and the Voting Rights Act. Whether he succeeds may depend on whether it is Mitt Romney or Barack Obama who fills the next vacancy on the Supreme Court.