Government By the People

The following originally appeared at Huffington Post.

Yesterday, Senate Republicans voted, for a second time in two days, to continue their filibuster of the DISCLOSE Act, a bill that would simply require outside groups spending money on elections to tell the public where their money comes from. At the same time, not surprisingly, Republican presidential candidate Mitt Romney is in hot water for failing to disclose more than the minimum of personal tax returns and lying about his history at the company that made his fortune -- all while we know that a portion of his wealth was hidden in infamously secretive Swiss bank accounts.

Senate Republicans and Romney are spending a lot of time and energy this week to keep their financial histories secret. It's only natural to ask: What do they have to hide?

You would think the DISCLOSE Act would be an easy bill to pass. In fact, many Republican Senators were "for it before they were against it". What it does is simple: it requires any organization -- corporation, union, super PAC or non-profit -- that spends money influencing elections to report within a day any election-related expenditure of $10,000 or more. It also requires that these organizations make public the names of the individuals and corporations contributing $10,000 or more to fund this election spending. In short, all those front groups that have been pouring money into elections since Citizens United will have to disclose who their major donors are. Voters would know who was trying to tell them what.

This is not a partisan issue. Disclosure requirements, like those in the DISCLOSE Act, were endorsed as constitutional by the Supreme Court majority that handed down Citizens United. Even the conservative justices who saw no problem with more money in politics assumed that disclosure would be a check on the integrity of the election process.

But Republicans in Congress have been fighting tooth and nail to keep DISCLOSE from the books. Why? The fact that they might not want to publicize the motives of some of these super donors, and the fact that the new flood of outside political spending overwhelmingly favors conservatives, might have something to do with it.

Meanwhile, Mitt Romney is having disclosure problems of his own. It's standard practice for presidential candidates to release their past tax returns -- President Obama has made public his returns from the past dozen years. Even Romney called on his gubernatorial opponents in Massachusetts to release their returns. (In a classic Romney flip-flop, when he was later asked to hold himself to the same standard, he said his original demands had been wrong).

The only conclusion to draw from Romney's tax-return reticence is that there's something he doesn't want us to see. The recent revelations that Romney has told conflicting stories about when he left his job at Bain Capital might give us a taste of what he's kept hidden. And hiding part of his fortune in tax havens like the Cayman Islands and in Swiss bank accounts that have for centuries epitomized financial secrecy doesn't help.

The issue of financial disclosure isn't a sideshow to this election -- it's a big part of what this election is about. How can we trust senators who spend more time covering up the sources of election spending on their behalf than they do legislating? How can we trust a candidate who won't be open and honest with voters about the source of his personal fortune and the taxes he has paid?

Full disclosure should be a no-brainer in honest politics. The public knows that. Even the Supreme Court knows that. The only people who seem to be missing the message are the politicians who are desperately trying to win elections without telling voters who might be buying them.

Today, Assembly Joint Resolution 22 passed the California Senate with a 24-11 vote, and thus California became the sixth state – joining Hawaii, New Mexico, Vermont, Maryland and Rhode Island – to call upon Congress to propose an amendment to the U.S. Constitution to overturn the Supreme Court’s disastrous 2010 Citizens United decision.  That decision opened the floodgates to corporate and special interest spending in our elections; and sparked a grassroots movement to amend the Constitution and restore government of, by, and for the people.

AJR 22 was introduced by Assemblymember Bob Wieckowski, who stated, “Today’s vote sends a clear message that California rejects this misguided ruling made by the conservative activists on the Supreme Court.” That same block of conservative Supreme Court justices who supported the majority opinion in Citizens United just weeks ago summarily reversed a case brought to the court by Montana, which refused to strike down their century-old anti-corruption law prohibiting corporate expenditures in elections – proving now, more than ever before, the need for an amendment to overturn the ruling. 

California’s largest cities, Los Angeles and San Francisco, have already passed amendment resolutions, as have well over 30 other municipalities in the state.  Support for the amendment strategy has been following this bottom-up trend (from grassroots to local; local to state; and state to federal) in a democratic surge of activism that demonstrates the power of the movement.  As recently witnessed in Philadelphia, public officials take note when these resolutions pass.

It is now the responsibility of the Californian congressional delegation to join – if they have not already – the growing list of public officials who have pledged their support for constitutional remedies.  And it is the responsibility of Californians, and people across the nation, to keep fighting and pushing for an amendment.

The money in politics problem is not going away … but neither are we.  Onward!

One of the last acts of Justice John Paul Stevens on the Supreme Court bench that he sat on for nearly thirty-five years was to read a summary of his scathing dissent of the Citizens United v. FEC decision, aloud, stating repeatedly, in one form or another that corporations “are not themselves members of ‘We the People’ by whom and for whom our Constitution was established.” Unfortunately, this view, which the vast majority of Americans agree with, and which seems so self-evident, was not held by the majority of the court.

To read the decision aloud was noteworthy; justices typically do so on cases they believe have special merit. And Justice Stevens correctly understood then that Citizens United was just that.

Over two years later, as the effects of Citizens United take hold, as corporate and special interest spending flood the 2012 elections and overwhelm the political process, Justice Stevens revisited the topic at the University of Arkansas’ Clinton Schools of Public Service. As reported by the Huffington Post, Justice Stevens took to the lectern Wednesday to address the inherent legal contradictions that are still outstanding under Justice Kennedy’s lead opinion.

Stevens alluded to President Obama’s apprehension, voiced in his 2010 State of the Union Speech, that the decision would “open the floodgates to special interests -- including foreign corporations -- to spend without limit in our elections.” Stevens stated (emphasis added):

… the former professor of constitutional law at the University of Chicago Law School [President Obama] made three important and accurate observations about the Supreme Court majority's opinion …

… third, the logic of the opinion extends to money spent by foreign entities. That is so because the Court placed such heavy emphasis on the premise that the First Amendment generally prohibits the suppression of political speech based on the speaker's identity. Indeed, the opinion expressly stated, “We find no basis for the proposition that, in the context of political speech, the Government may impose restrictions on certain disfavored speakers.”

Justice Stevens is correct that the logic of the Court’s opinion in Citizens United extends to permitting foreign corporations to make independent expenditures to influence U.S. elections. As he pointed out in his Citizens United dissent, the majority opinion’s failure to take on the issue of foreign corporate spending when striking down portions of the McCain-Feingold Act is a glaring omission, one that exposes the logical flaws in Kennedy’s argument. And as more cases like Bluman v. FEC arise – in which foreign nationals sought, and were denied the right to make electoral contributions and expenditures – the court will need to further clarify its position on why domestic corporations, and not other “speakers” have the right “to speak.” On the subject, Stevens reasoned:

… in due course it will be necessary for the Court to issue an opinion explicitly crafting an exception that will create a crack in the foundation of the Citizens United majority opinion. For [Justice Alito's] statement that it is "not true" that foreign entities will be among the beneficiaries of Citizens United offers good reason to predict there will not be five votes for such a result when a case arises that requires the Court to address the issue in a full opinion. And, if so, the Court must then explain its abandonment of, or at least qualify its reliance upon, the proposition that the identity of the speaker is an impermissible basis for regulating campaign speech. It will be necessary to' explain why the First Amendment provides greater protection to the campaign speech of some non-voters than to that of other non-voters.

It is very possible that a plethora of cases like Bluman v. FEC will reach the district courts. And it’s very possible that the lower courts will begin to poke so many holes in the Citizens United rationale that the Supreme Court will have no choice but to revisit the case.

If there was any question that the Supreme Court’s decision in Citizens United skews the balance of influence in our elections to the rich, an analysis by Rolling Stone shows that the real beneficiaries of the decision are really the very very rich. This profile of the 16 donors who have given at least $1 million to super PACs supporting Mitt Romney, including hedge fund managers, hotel tycoons, oil barons and of course, William Koch, reveals who is making the biggest impact in the presidential election.

In a democracy, we should be electing those who represent vast swaths of the American people. But one thing is clear: the special interests propping up Romney’s campaign have very little in common with average Americans. As Rolling Stone notes:

Most of the megadonors backing his candidacy are elderly billionaires: Their median age is 66, and their median wealth is $1 billion. Each is looking for a payoff that will benefit his business interests, and they will all profit from Romney's pledge to eliminate inheritance taxes, extend the Bush tax cuts for the superwealthy – and then slash the top tax rate by another 20 percent. Romney has firmly joined the ranks of the economic nutcases who spout the lie of trickle-down economics.

How are these individuals able to throw so much of their wealth into the race? Essentially, Citizens United allows individuals and corporations to skirt the caps on contributions to campaign treasuries by funneling money through entities like Super PACs and 501c4 organizations:

Under the new rules, the richest men in America are plying candidates with donations far beyond what Congress intended. "They can still give the maximum $2,500 directly to the campaign – and then turn around and give $25 million to the Super PAC," says Trevor Potter, general counsel of the Campaign Legal Center. A single patron can now prop up an entire candidacy, as casino magnate Sheldon Adelson did with a $20 million donation to the Super PAC backing Newt Gingrich.

It’s unlikely that these donors are throwing so much money into the race solely for bragging rights – they certainly have agendas of their own. Most of the individuals profiled in the article stand to benefit from Romney agenda: more tax cuts to the rich, lax regulation of Wall Street and other industries, a hamstrung E.P.A, lucrative government contracts – and their outsized contributions demonstrate their belief that money buys influence. Citizens United exacerbated this unfortunate reality. At least that can be fixed by the people, with an amendment to the Constitution.

A major component of the American Legislative Exchange Council’s agenda is shielding corporations from liability by removing consumer protections and limiting the people’s ability to seek justice in a court of law. At their meeting last week in Charlotte, N.C., ALEC’s Civil Justice Task Force considered legislation that would hamstring some of the mosteffective consumer advocates: state attorneys general.

Common Cause recently released some 4,000 of ALEC’s internal documents, including task force agendas, participants and model legislation. The documents revealed ALEC’s “Attorney General Authority Act” under consideration at the task force meeting, which seeks to limit state AGs from bringing suits against corporations. ALEC’s explanation of the bill reads in part:

Just as a private attorney cannot bring a suit on behalf of a client without the client agreeing and authorizing such action, and then only within the guidelines allowed by the client, so it should be with the attorney general. Rather than an attorney general deciding on his or her own what authority the office may have to bring a lawsuit, the authority should be defined by the state as reflected by the specific decisions of the legislature via statute. The legislature, not the attorney general, is best positioned to balance the competing concerns that go into the decision of whether to allow a cause of action and under what circumstances.

Put simply: this act would prohibit the attorney general from bringing a suit in the public’s interest unless the state legislature specifically authorizes it.

As the Minnesota Post astutely points out, a legislature that enacts such a provision to protect corporations is unlikely to subsequently grant the attorney general the authority to prosecute them. The consequences are significant: "This legislation would have prevented [an attorney general] from suing tobacco manufacturers in the ‘90s for tobacco-related health costs associated with the Medicaid program,” said Mike Dean, head of Common Cause of Minnesota. “It is easy to see why corporations would want to stop these types of lawsuits because tobacco manufacturer were forced to pay $6.1 billion in a settlement to the state of Minnesota."

This law doesn't just help ALEC-member corporations, it helps ALEC. After recently filing a whistleblower complaint with the IRS alleging that ALEC abused its tax-exempt status by failing to report lobbying activities, Common Cause is calling on state attorney generals to investigate ALEC for tax fraud in all 50 states. What better way to derail investigations into ALEC than by advocating for legislation that removes the attorney general’s ability to investigate ALEC?

The Center for Media and Democracy released a new report today detailing the American Legislative Exchange Council’s influence in Wisconsin’s laws. At a time when ALEC members are jumping ship thanks to increased exposure of the ALEC agenda – 14 corporate members and 45 legislative members so far – this report serves as yet another window into ALEC’s shadowy, undemocratic method of ushering an extreme, pro-corporate agenda into law.

With the loyal help of Governor Scott Walker and a slew of complicit state legislators, ALEC has successfully implemented much of its corporate wish list in the state, including union-busting and corporate tax giveaways. According to the report, in Wisconsin:

• 32 bills or budget provisions reflecting ALEC model legislation were introduced in Wisconsin's 2011-2012 legislative session;

• 21 of these bills or budget provisions have passed, and two were vetoed;

• More than $276,000 in campaign contributions were made to ALEC legislators in Wisconsin from ALEC corporations since 2008;

• More than $406,000 in campaign contributions were made to ALEC alumnus Governor Walker from ALEC corporations over the same time period for his state campaign account;

• At least 49 current Wisconsin legislators are known ALEC members, including the leaders of both the House and Senate as well as other legislators holding key posts in the state. Additionally, the Governor, the Secretary of the Department of Administration, and the Chairman of the Public Service Commission are ALEC alumni; and

• At least 17 current legislators have received thousands of dollars of gifts cumulatively from ALEC corporations in the past few years, in the form of flights and hotel rooms filtered through the ALEC “scholarship fund” (complete “scholarship” information is not available).

People For the American Way Foundation has contributed to similar reports covering ALEC’s influence in Ohio and Arizona, and work continues to shine light on how ALEC paves the way for a state-by-state corporate takeover of our democracy.

From the Milwaukee Journal Sentinel (emphasis added):

A filmmaker released a video today that shows Gov. Scott Walker saying he would use "divide and conquer" as a strategy against unions.

Walker made the comments to Beloit billionaire Diane Hendricks, who has since given $510,000 to the governor's campaign -- making her Walker's single-largest donor and the largest known donor to a candidate in state history.

...

In the video shot on Jan. 18, 2011 -- shortly before Walker's controversial budget-repair bill was introduced and spawned mass protests -- Hendricks asked the governor whether he could make Wisconsin a "completely red state, and work on these unions, and become a right-to-work" state. The Republican donor was referring to right-to-work laws, which prohibit private-sector unions from compelling workers to pay union dues if the workers choose not to belong to the union.

Walker replied that his "first step" would be "to divide and conquer" through his budget-adjustment bill, which curtailed most collective bargaining for most public employee unions.

More proof that Walker is working to serve the billionaire ideologues who want to bulldoze every institution set up to protect the public interest against rapacious corporate interests. And this shows, in his own words, how Walker sought to divide Wisconsin workers against each other with his unconscionable smear campaign last year against public employees.

This is why we're going to recall him on June 5!

UPDATE: Here's some video: