Context of ’1907: Tillman Act Prohibits Corporate Donations for Federal Election Campaigns’
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[Source: Library of Congress]
In a speech given to an audience in Providence, Rhode Island, later entitled “The Control of Corporations”, President Theodore Roosevelt gives a passionate warning about the dangers of the nation’s prosperity being concentrated in the hands of the few, and particularly under the control of a few large corporations. Roosevelt says: “One of the features of the tremendous industrial development of the last generation has been the very great increase in private, and especially in corporate, fortunes.… Where men are gathered together in great masses it inevitably results that they must work far more largely through combinations than where they live scattered and remote from one another.… It is not true that the poor have grown poorer; but some of the rich have grown so very much richer that, where multitudes of men are herded together in a limited space, the contrast strikes the onlooker as more violent than formerly. On the whole, our people earn more and live better than ever before, and the progress of which we are so proud could not have taken place had it not been for the up building of industrial centers, such as this in which I am speaking. But together with the good there has come a measure of evil.… Under present-day conditions it is as necessary to have corporations in the business world as it is to have organizations, unions, among wage-workers. We have a right to ask in each case only this: that good, and not harm, shall follow. Exactly as labor organizations, when managed intelligently and in a spirit of justice and fair play, are of very great service not only to the wage-workers, but to the whole community, as has been shown again and again in the history of many such organizations; so wealth, not merely individual, but corporate, when used aright is not merely beneficial to the community as a whole, but is absolutely essential to the upbuilding of such a series of communities as those whose citizens I am now addressing.… The great corporations which we have grown to speak of rather loosely as trusts are the creatures of the state [the federal government], and the state not only has the right to control them, but it is in duty bound to control them wherever the need of such control is shown. There is clearly need of supervision—need to possess the power of regulation of these great corporations through the representatives of the public wherever, as in our own country at the present time, business corporations become so very powerful alike for beneficent work and for work that is not always beneficent. It is idle to say that there is no need for such supervision. There is, and a sufficient warrant for it is to be found in any one of the admitted evils appertaining to them.” Such government controls are rightfully difficult to put in place, Roosevelt says, because of the constitutional guarantees afforded both individuals and corporate entities, and because of the disparity of laws enacted in the various states. However, “I believe that the nation must assume this power of control by legislation; if necessary by constitutional amendment,” he says. “The immediate necessity in dealing with trusts is to place them under the real, not the nominal, control of some sovereign to which, as its creatures, the trusts shall owe allegiance, and in whose courts the sovereign’s orders may be enforced.” Such government regulation and oversight must be enforced with caution and restraint, he warns, but nevertheless, it must be enacted. [Theodore Roosevelt (.com), 8/23/1902; ed., 2003, pp. 20-21] Roosevelt’s position is ironic considering the vast corporate contributions he will accept to win the presidency in 1904 (he ascended to the presidency in 1901 after President William McKinley was assassinated). Roosevelt will accept large donations from railroad and insurance interests, and will make a personal appeal to steel baron Henry Clay Frick and other industrialists. Frick will later recall: “He got down on his knees to us. We bought the son of a b_tch and then he did not stay bought.” During his second term, Roosevelt will strive to pass significant campaign finance reform legislation that would ban some of the techniques he will use to regain office. [New Yorker, 5/21/2012]
Timeline Tags: Civil Liberties
December 5, 1905: Roosevelt: Corporations Should Not Be Allowed to Contribute to Political Campaigns, Federal Elections Should Be Publicly Financed
President Theodore “Teddy” Roosevelt, in a speech given to the US Congress, proposes that corporations be expressly forbidden by law from contributing money “to any political committee or for any political purpose.” Neither should corporate directors be permitted to use stockholders’ money for political purposes. Roosevelt does not say that corporate owners should be so restricted. Roosevelt also says federal campaigns should be publicly financed via their political parties. Roosevelt’s proposal is made in part because he was accused of improperly accepting corporate donations for his 1904 presidential campaign. [Miller Center, 12/5/1905; Center for Responsive Politics, 2002 ; Moneyocracy, 2/2012] Roosevelt, who has made similar statements in the past (see August 23, 1902), will echo these proposals in additional speeches. [Connecticut Network, 2006 ] Two years later, Roosevelt will sign into law a bill proscribing such donations (see 1907).
Entity Tags: Theodore Roosevelt
Timeline Tags: Civil Liberties
President Theodore “Teddy” Roosevelt signs the Tillman Act into law. The Act prohibits monetary contributions to national political campaigns by corporations and national banks. Roosevelt, dogged by allegations that he had accepted improper donations during his 1904 presidential campaign, has pushed for such restrictions since he took office (see August 23, 1902 and December 5, 1905). [Federal Elections Commission, 1998; Center for Responsive Politics, 2002 ; Moneyocracy, 2/2012] Senator Benjamin Tillman (D-SC), later described by National Public Radio as a “populist and virulent racist,” sponsored the bill. [National Public Radio, 2012] In 1900, Tillman was quoted as saying about black voters: “We have done our level best. We have scratched our heads to find out how we could eliminate every last one of them. We stuffed ballot boxes. We shot them. We are not ashamed of it.” [Atlas, 2010, pp. 205] Unfortunately, the law is easily circumvented. Businesses and corporations give employees large “bonuses” with the understanding that the employee then gives the bonus to a candidate “endorsed” by the firm. Not only do the corporations find and exploit this loophole, they receive an additional tax deduction for “employee benefits.” The law will be amended to cover primary elections in 1911 (see 1911). [Campaign Finance Timeline, 1999]
Timeline Tags: Civil Liberties
The Federal Corrupt Practices Act (FCPA), also called the Publicity Act, is passed. It will remain the backbone of American campaign finance regulation until expanded in 1925 (see 1925). It expands upon the Tillman Act’s prohibition against corporate and bank donations to federal election campaigns (see 1907) by enacting campaign spending limits on US House election campaigns. It also requires full disclosure of all monies spent and contributed during federal campaigns. In 1911, the FCPA will be amended to cover Senate elections as well, and to set spending limits on all Congressional races. However, the bill fails to provide for enforcement and verification procedures, so the law remains essentially useless. [Federal Elections Commission, 1998; Campaign Finance Timeline, 1999; Center for Responsive Politics, 2002 ; Moneyocracy, 2/2012] The law is rendered even less powerful after the Supreme Court overturns its provision limiting House and Senate candidate spending. [Pearson Education, 2004]
Timeline Tags: Civil Liberties
Lawmakers concerned with political reform push for amendments to the Tillman Act (see 1907) and Federal Corrupt Practices Act (FCPA—see June 25, 1910) that would extend those laws’ campaign finance restrictions to primary elections. Particularly strong in their support are reformers in the new Western and old Northern Republican-dominated states, who resent the Southern Democrats’ grip on their region of the country. Democrats have a powerful grip on the South, largely because few Southerners will countenance voting or campaigning as a Republican due to the Republican Party’s support for Reconstructionist policies after the Civil War. Southern Democrats are outnumbered in Congress, and unable to prevent the amendments from being passed. [Campaign Finance Timeline, 1999] The amendments will be found unconstitutional four years later (see 1921).
Entity Tags: US Congress
Timeline Tags: Civil Liberties
In US v. Newberry, the Supreme Court finds some amendments to campaign finance laws (see 1911) unconstitutional, weakening the body of campaign finance law even further. The campaign finance laws in force (see 1907 and June 25, 1910) were already ineffective and rarely enforced by state attorneys general. And corporations and other special interests find it quite simple to circumvent the laws via loopholes. The case involves a Northern Republican primary race for the US Senate. Popular and powerful businessman Henry Ford (R-MI) lost the race due to enormous campaign expenditures and advertising by his opponent, and asked the US attorney general to intervene. The case stemming from Ford’s request results in the Court decision. The Court finds that the amendments are invalid because neither political parties nor election primaries are mentioned in the Constitution. The Founders had not considered having a two- or three-party system in place, and had envisioned the US as being governed by a single party that represented all interests. A two-party system did not emerge in American politics on a national scale until 1828. The Court, by maintaining a strict constitutional interpretation, sorely weakens campaign finance regulation. [Campaign Finance Timeline, 1999]
Timeline Tags: Civil Liberties
The federal government revises and expands the Federal Corrupt Practices Act (FCPA—see June 25, 1910), a campaign finance law that lacks any enforcement or verification mechanisms, in the wake of the Teapot Dome corruption scandal. The amended version codifies and revises the expenditure limits and disclosure procedures for US Congressional candidates. It will replace the original FCPA as well as its predecessor, the Tillman Act (see 1907), and will remain the backbone of American campaign finance law until 1971. All campaign spending is strictly regulated, with contributions of $50 and over during a calendar year mandated to be reported. Senatorial candidates can spend no more than three cents for each voter in the last election, to a maximum of $25,000. House candidates may also spend up to three cents per voter in the last election, up to a $5,000 maximum. Offers of patronage and contracts are banned, as is any form of bribery. Corporate contributions of all kinds are banned. However, the power of enforcement is entirely vested within Congress, and thusly is routinely ignored. [Campaign Finance Timeline, 1999; Center for Responsive Politics, 2002 ; Pearson Education, 2004; National Public Radio, 2012] In 1966, President Lyndon B. Johnson will refer to the FCPA as “more loophole than law.” [Connecticut Network, 2006 ; National Public Radio, 2012]
Timeline Tags: Civil Liberties
March 15, 2009: Supreme Court Hears ‘Citizens United’ Campaign Finance Case, Initial Arguments Presented
The US Supreme Court hears the case of Citizens United v. Federal Election Commission, in which the Federal Election Commission (FEC) refused to let the conservative lobbying organization Citizens United (CU) air a film entitled Hillary: The Movie during the 2008 presidential primary season (see January 10-16, 2008). The FEC ruled that H:TM, as some have shortened the name, was not a film, but a 90-minute campaign ad with no other purpose than to smear and attack Senator Hillary Clinton (D-NY) as being unfit to hold office. A panel of appeals judges agreed with the FEC’s ruling, which found the film was “susceptible of no other interpretation than to inform the electorate that Senator Clinton is unfit for office, that the United States would be a dangerous place in a President Hillary Clinton world, and that viewers should vote against her.” As a campaign ad, the film’s airing on national network television came under campaign finance laws, particularly since the film was financed by corporate political donations. CU was allowed to air the film in theaters and sell it in DVD and other formats, but CU wanted to pay $1.2 million to have the movie aired on broadcast cable channels and video-on-demand (pay per view) services, and to advertise its broadcast. CU president David Bossie (see May 1998) hired former Bush Solicitor General Theodore Olson after the Supreme Court agreed to hear the case. Bossie denies that he chose Olson because of their shared loathing of the Clintons—they worked together to foment the “Arkansas Project,” a Clinton smear effort that resulted in Congress unsuccessfully impeaching President Clinton—but because Olson gave “us the best chance to win.” Bossie dedicated the Clinton film to Barbara Olson, Olson’s late wife, who died in the 9/11 attacks (see (9:20 a.m.) September 11, 2001). [Washington Post, 3/15/2009; Christian Science Monitor, 3/23/2009] “I just don’t see how the Federal Election Commission has the authority to use campaign-finance rules to regulate advertising that is not related to campaigns,” Bossie told reporters last year. [Christian Science Monitor, 2/1/2008]
Uphold or Cut Back McCain-Feingold? – Observers, unaware of the behind-the-scenes machinations, believe the case gives the Court the opportunity to either uphold or cut back the body of law stemming from the Bipartisan Campaign Reform Act (BCRA, or McCain-Feingold) campaign finance law (see March 27, 2002), which limits the ability of corporations and labor unions to spend unlimited amounts of money on political advertising before elections. CU is arguing that the BCRA is unconstitutional, having argued before a previous court that the the BCRA law was unconstitutional in the way it was being enforced by the FEC against its film. In its brief to the Court, CU denies the film is any sort of “electioneering,” claiming: “Citizens United’s documentary engages in precisely the political debate the First Amendment was written to protect… The government’s position is so far-reaching that it would logically extend to corporate or union use of a microphone, printing press, or the Internet to express opinions—or articulate facts—pertinent to a presidential candidate’s fitness for office.” The Justice Department, siding with the FEC, calls the film an “unmistakable” political appeal, stating, “Every element of the film, including the narration, the visual images and audio track, and the selection of clips, advances the clear message that Senator Clinton lacked both the integrity and the qualifications to be president of the United States.” The film is closer to a political “infomercial” than a legitimate documentary, the Justice Department argues. The film’s “unmistakable message is that Senator Clinton’s character, beliefs, qualifications, and personal history make her unsuited to the office of the President of the United States,” according to a Justice Department lawyer, Edwin Kneedler, who filed a brief on behalf of the FEC. The Justice Department wants the Court to uphold FEC disclosure requirements triggered by promotional ads, while Olson and CU want the Court to strike down the requirements. Olson says financial backers of films such as H:TM may be reluctant to back a film if their support becomes publicly known. Kneedler, however, writes that such disclosure is in the public interest. The Reporters Committee for Freedom of the Press (RCFP) is joining CU in its court fight, stating in a brief, “By criminalizing the distribution of a long-form documentary film as if it were nothing more than a very long advertisement, the district court has created uncertainty about where the line between traditional news commentary and felonious advocacy lies.” Scott Nelson of the Public Citizen Litigation Group, which supports the BCRA, disagrees with RCFP’s stance, saying, “The idea that [the law] threatens legitimate journalism and people who are out creating documentaries, I think, is a stretch.” [Washington Post, 3/15/2009; Christian Science Monitor, 3/23/2009] The RCFP has said that the movie “does not differ, in any relevant respect, from the critiques of presidential candidates produced throughout the entirety of American history.” And a lawyer with the RCFP, Gregg P. Leslie, asked, “Who is the FEC to decide what is news and what kind of format news is properly presented in?” [New York Times, 3/5/2009]
Filled with False Information – The movie was relentlessly panned by critics, who found much of its “information” either misrepresentative of Clinton or outright false. CU made several other films along with the Clinton documentary, which included attacks on filmmaker Michael Moore, the American Civil Liberties Union, illegal immigrants, and Clinton’s fellow presidential contender Barack Obama (D-IL—see October 28-30, 2008). [Washington Post, 3/15/2009; Christian Science Monitor, 3/23/2009]
Arguments Presented – Olson and his opponent, Deputy Solicitor General Malcolm Stewart, present arguments in the case to the assembled Court. Traditionally, lawyers with the Solicitor General (SG)‘s office are far more straightforward with the Court than is usual in advocacy-driven cases. New Yorker reporter Jeffrey Toobin later writes: “The solicitor general’s lawyers press their arguments in a way that hews strictly to existing precedent. They don’t hide unfavorable facts from the justices. They are straight shooters.” Stewart, who clerked for former Justice Harry Blackmun and is a veteran of the SG office since 1993, is well aware of the requirements of Court arguments. Justice Samuel Alito, a conservative justice with a penchant for asking tough questions that often hide their true intentions behind carefully neutral wording, is interested in seeing how far he can push Stewart’s argument. Does the BCRA apply only to television commercials, he asks, or might it regulate other means of communication during a federal campaign? “Do you think the Constitution required Congress to draw the line where it did, limiting this to broadcast and cable and so forth?” Could the law limit a corporation from “providing the same thing in a book? Would the Constitution permit the restriction of all those as well?” Stewart says that the BCRA indeed imposes such restrictions, stating, “Those could have been applied to additional media as well.” Could the government regulate the content of a book? Alito asks. “That’s pretty incredible. You think that if a book was published, a campaign biography that was the functional equivalent of express advocacy, that could be banned?” Stewart, who tardily realizes where Alito was going, attempts to recover. “I’m not saying it could be banned,” he responds. “I’m saying that Congress could prohibit the use of corporate treasury funds and could require a corporation to publish it using its—” Justice Anthony Kennedy, considered a “swing” justice in some areas but a reliable conservative vote in campaign-spending cases, interrupts Stewart. “Well, suppose it were an advocacy organization that had a book,” Kennedy says. “Your position is that, under the Constitution, the advertising for this book or the sale for the book itself could be prohibited within the 60- and 30-day periods?” Stewart gives what Toobin later calls “a reluctant, qualified yes.” At this point, Roberts speaks up. According to Toobin, Roberts intends to paint Stewart into something of a corner. “If it has one name, one use of the candidate’s name, it would be covered, correct?” Roberts asks. Stewart responds, “That’s correct.” Roberts then asks, “If it’s a 500-page book, and at the end it says, ‘And so vote for X,’ the government could ban that?” Stewart responds, “Well, if it says ‘vote for X,’ it would be express advocacy and it would be covered by the preexisting Federal Election Campaign Act (FECA—see February 7, 1972, 1974, May 11, 1976, and January 8, 1980) provisions.” Toobin later writes that with their “artful questioning, Alito, Kennedy, and Roberts ha[ve] turned a fairly obscure case about campaign-finance reform into a battle over government censorship.” Unwittingly, Stewart has argued that the government has the right to censor books because of a single line. Toobin later writes that Stewart is incorrect, that the government could not ban or censor books because of McCain-Feingold. The law applies to television advertisements, and stems from, as Toobin will write, “the pervasive influence of television advertising on electoral politics, the idea that commercials are somehow unavoidable in contemporary American life. The influence of books operates in a completely different way. Individuals have to make an affirmative choice to acquire and read a book. Congress would have no reason, and no justification, to ban a book under the First Amendment.” Legal scholars and pundits will later argue about Stewart’s answers to the three justices’ questions, but, as Toobin will later write, “the damage to the government’s case had been profound.” [New Yorker, 5/21/2012]
Behind the Scenes – Unbeknownst to the lawyers and the media, the Court initially renders a 5-4 verdict in favor of CU, and strikes down decades of campaign finance law, before withdrawing its verdict and agreeing to hear rearguments in the fall (see June 29, 2009). Toobin will write that the entire case is orchestrated behind the scenes, by Roberts and his fellow majority conservatives. Toobin will write of “a lengthy and bitter behind-the-scenes struggle among the justices that produced both secret unpublished opinions and a rare reargument of a case” that “reflects the aggressive conservative judicial activism of the Roberts Court.” Toobin will write that although the five conservatives are involved in broadening the scope of the case, and Kennedy actually writes the majority decision, “the result represented a triumph for Chief Justice Roberts. Even without writing the opinion, Roberts, more than anyone, shaped what the Court did. As American politics assumes its new form in the post-Citizens United era, the credit or the blame goes mostly to him.” The initial vote on the case is 5-4, with the five conservative justices—Alito, Kennedy, Roberts, Scalia, and Clarence Thomas—taking the majority.
Expansive Concurrence Becomes the Majority Opinion – At the outset, the case is decided on the basis of Olson’s narrow arguments, regarding the issue of a documentary being made available on demand by a nonprofit organization (CU). Roberts takes the majority opinion onto himself. The four liberals in the minority are confident Roberts’s opinion would be as narrow as Olson’s arguments. Roberts’s draft opinion is indeed that narrow. Kennedy writes a concurrence opining that the Court should go further and overturn McCain-Feingold, the 1990 Austin decision (see March 27, 1990), and end the ban on corporate donations to campaigns (see 1907). When the draft opinions circulates, the other three conservatives begin rallying towards Kennedy’s more expansive concurrence. Roberts then withdraws his draft and lets Kennedy write the majority opinion in line with his concurrence. Toobin later writes: “The new majority opinion transformed Citizens United into a vehicle for rewriting decades of constitutional law in a case where the lawyer had not even raised those issues. Roberts’s approach to Citizens United conflicted with the position he had taken earlier in the term.” During arguments in a different case, Roberts had “berated at length” a lawyer “for his temerity in raising an issue that had not been addressed in the petition. Now Roberts was doing nearly the same thing to upset decades of settled expectations.”
Dissent – The senior Justice in the minority, John Paul Stevens, initially assigns the main dissent to Justice David Souter. Souter, who is in the process of retiring from the Court, writes a stinging dissent that documents some of the behind-the-scenes machinations in the case, including an accusation that Roberts violated the Court’s procedures to get the outcome he wanted. Toobin will call Souter’s planned dissent “an extraordinary, bridge-burning farewell to the Court” that Roberts feels “could damage the Court’s credibility.” Roberts offers a compromise: Souter will withdraw his dissent if the Court schedules a reargument of the case in the fall of 2009 (see June 29, 2009). The second argument would feature different “Questions Presented,” and the stakes of the case would be far clearer. The four minority justices find themselves in something of a conundrum. They feel that to offer the Kennedy opinion as it stands would be to “sandbag” them and the entire case, while a reargument would at least present the issues that the opinion was written to reflect. And there is already a 5-4 majority in favor of Kennedy’s expansive opinion. The liberals, with little hope of actually winning the case, agree to the reargument. The June 29, 2009 announcement will inform the parties that the Court is considering overturning two key decisions regarding campaign finance restrictions, including a decision rendered by the Roberts court (see March 27, 1990 and December 10, 2003) and allow essentially unlimited corporate spending in federal elections. Court observers will understand that the Court is not in the habit of publicly asking whether a previous Court decision should be overruled unless a majority is already prepared to do just that. Toobin will call Roberts and his four colleagues “impatient” to make the decision, in part because an early decision would allow the ruling to impact the 2010 midterm elections. [New Yorker, 5/21/2012]
Created to Give Courts Shot at McCain-Feingold – Critics, as yet unaware of the behind-the-scenes maneuvering, will later say that CU created the movie in order for it to fall afoul of the McCain-Feingold campaign finance law, and give the conservatives on the Court the opportunity to reverse or narrow the law. Nick Nyhart of Public Campaign will say: “The movie was created with the idea of establishing a vehicle to chip away at the decision. It was part of a very clear strategy to undo McCain-Feingold.” Bossie himself will later confirm that contention, saying: “We have been trying to defend our First Amendment rights for many, many years. We brought the case hoping that this would happen… to defeat McCain-Feingold.” [Washington Post, 1/22/2010] CU’s original lawyer on the case, James Bopp, will later verify that the case was brought specifically to give the Court a chance to cut back or overturn campaign finance law (see January 25, 2010). The Court will indeed overturn McCain-Feingold in the CU decision (see January 21, 2010).
Entity Tags: Clarence Thomas, US Department of Justice, Theodore (“Ted”) Olson, Scott Nelson, US Supreme Court, Bipartisan Campaign Reform Act of 2002, Citizens United, Barbara Olson, American Civil Liberties Union, Anthony Kennedy, Barack Obama, Samuel Alito, Reporters Committee for Freedom of the Press, William Jefferson (“Bill”) Clinton, Michael Moore, Hillary Clinton, Gregg P. Leslie, Nick Nyhart, Edwin Kneedler, David Souter, Federal Election Commission, James Bopp, Jr, John Paul Stevens, David Bossie, John G. Roberts, Jr, Jeffrey Toobin, Malcolm Stewart
Timeline Tags: Civil Liberties
January 21, 2010: In ‘Citizens United’ Case, Supreme Court Finds Corporations Can Spend Unlimited Amounts in Political Campaigns via First Amendment Protections
[Source: Associated Press / Politico]
The Supreme Court rules 5-4 that corporate spending in political elections may not be banned by the federal government. The case is Citizens United v. Federal Election Commission, No. 08-205. The Court is divided among ideological lines, with the five conservatives voting against the four moderates and liberals on the bench. The decision overrules two precedents about the First Amendment rights of corporations, and rules that corporate financial support for a party or candidate qualifies as “freedom of speech” (see March 11, 1957, January 30, 1976, May 11, 1976, April 26, 1978, January 8, 1980, November 28, 1984, December 15, 1986, June 26, 1996, June 25, 2007, and June 26, 2008). The majority rules that the government may not regulate “political speech,” while the dissenters hold that allowing corporate money to, in the New York Times’s words, “flood the political marketplace,” would corrupt the democratic process. The ramifications of the decision will be vast, say election specialists. [Legal Information Institute, 2010; CITIZENS UNITED v. FEDERAL ELECTION COMMISSION, 1/21/2010 ; New York Times, 1/21/2010] In essence, the ruling overturns much of the Bipartisan Campaign Reform Act of 2002, commonly known as the McCain-Feingold law (BCRA—see March 27, 2002). The ruling leaves the 1907 ban on direct corporate contributions to federal candidates and national party committees intact (see 1907). The ban on corporate and union donors coordinating their efforts directly with political parties or candidates’ campaigns remains in place; they must maintain “independence.” Any corporation spending more than $10,000 a year on electioneering efforts must publicly disclose the names of individual contributors. And the ruling retains some disclosure and disclaimer requirements, particularly for ads airing within 30 days of a primary or 60 days of a general election. The Los Angeles Times writes: “The decision is probably the most sweeping and consequential handed down under Chief Justice John G. Roberts Jr. And the outcome may well have an immediate impact on this year’s mid-term elections to Congress.” [Los Angeles Times, 1/21/2010; OMB Watch, 1/27/2010; Christian Science Monitor, 2/2/2010; National Public Radio, 2012]
Unregulated Money Impacts Midterm Elections – The decision’s effects will be felt first on a national level in the 2010 midterm elections, when unregulated corporate spending will funnel millions of dollars from corporate donors into Congressional and other races. President Obama calls the decision “a major victory for big oil, Wall Street banks, health insurance companies, and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans.” Evan Tracey of the Campaign Media Analysis Group, which tracks political advertising, says the Court “took what had been a revolving door and took the door away altogether. There was something there that slowed the money down. Now it’s gone.” [Legal Information Institute, 2010; CITIZENS UNITED v. FEDERAL ELECTION COMMISSION, 1/21/2010 ; New York Times, 1/21/2010; Los Angeles Times, 1/21/2010; Think Progress, 1/21/2010]
Broadening in Scope – According to reporter and author Jeffrey Toobin, CU lawyer Theodore Olson had originally wanted to present the case as narrowly as possible, to ensure a relatively painless victory that would not ask the Court to drastically revise campaign finance law. But according to Toobin, the conservative justices, and particularly Chief Justice Roberts, want to use the case as a means of overturning much if not all of McCain-Feingold (see May 14, 2012). In the original argument of the case in March 2009 (see March 15, 2009), Deputy Solicitor General Malcolm Stewart unwittingly changed the scope of the case in favor of a broader interpretation, and gave Roberts and the other conservative justices the opportunity they may have been seeking. [New Yorker, 5/21/2012]
Majority Opinion Grants Corporations Rights of Citizens – The majority opinion, written by Justice Anthony Kennedy, reads in part: “If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.… The First Amendment does not permit Congress to make these categorical distinctions based on the corporate identity of the speaker and the content of the political speech.” In essence, Kennedy’s ruling finds, corporations are citizens. The ruling overturns two precedents: 1990’s Austin v. Michigan Chamber of Commerce, which upheld restrictions on corporate spending to support or oppose political candidates (see March 27, 1990) in its entirety, and large portions of 2003’s McConnell v. Federal Election Commission (see December 10, 2003), which upheld a portion of the BCRA that restricted campaign spending by corporations and unions. Before today’s ruling, the BCRA banned the broadcast, cable, or satellite transmission of “electioneering communications” paid for by corporations or labor unions from their general funds in the 30 days before a presidential primary and in the 60 days before the general elections. The law was restricted in 2007 by a Court decision to apply only to communications “susceptible to no reasonable interpretation other than as an appeal to vote for or against a specific candidate” (see June 25, 2007).
Encroachment on Protected Free Speech – Eight of the nine justices agree that Congress can require corporations to disclose their spending and to run disclaimers with their advertisements; Justice Clarence Thomas is the only dissenter on this point. Kennedy writes, “Disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way.” Kennedy’s opinion states that if the restrictions remain in place, Congress could construe them to suppress political speech in newspapers, on television news programs, in books, and on the Internet. Kennedy writes: “When government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves.”
Fiery Dissent – Justice John Paul Stevens, the oldest member of the court, submits a fiery 90-page dissent that is joined by Justices Stephen Breyer, Ruth Bader Ginsburg, and Sonia Sotomayor. Kennedy is joined by Roberts and fellow Associate Justices Samuel Alito, Antonin Scalia, and Thomas, though Roberts and Alito submit a concurring opinion instead of signing on with Kennedy, Scalia, and Thomas. “The difference between selling a vote and selling access is a matter of degree, not kind,” Stevens writes in his dissent. “And selling access is not qualitatively different from giving special preference to those who spent money on one’s behalf.” Stevens writes that the Court has long recognized the First Amendment rights of corporations, but the restrictions struck down by the decision are moderate and fair. “At bottom, the Court’s opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.” Speaking from the bench, Stevens calls the ruling “a radical change in the law… that dramatically enhances the role of corporations and unions—and the narrow interests they represent—in determining who will hold public office.… Corporations are not human beings. They can’t vote and can’t run for office,” and should be restricted under election law. “Essentially, five justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law.”
Case Originated with 2008 Political Documentary – The case originated in a 2008 documentary by the right-wing advocacy group Citizens United (CU), called Hillary: The Movie (see January 10-16, 2008). The film, a caustic attack on then-Democratic presidential candidate Hillary Clinton (D-NY) and Democrats in general, was released for public viewing during the 2008 Democratic presidential primaries. When the Federal Election Commission (FEC) won a lawsuit against CU, based on the FEC’s contention that broadcasting the film violated McCain-Feingold, the group abandoned plans to release the film on a cable video-on-demand service and to broadcast television advertisements for it. CU appealed the ruling to the Supreme Court, and most observers believed the Court would decide the case on narrow grounds, not use the case to rewrite election law and First Amendment coverage. [Legal Information Institute, 2010; CITIZENS UNITED v. FEDERAL ELECTION COMMISSION, 1/21/2010 ; New York Times, 1/21/2010; Los Angeles Times, 1/21/2010; Think Progress, 1/21/2010; Associated Press, 1/21/2010; Christian Science Monitor, 2/2/2010]
Case Brought in Order to Attack Campaign Finance Law – Critics have said that CU created the movie in order for it to fall afoul of the McCain-Feingold campaign finance law, and give the conservatives on the Court the opportunity to reverse or narrow the law. Nick Nyhart of Public Campaign, an opponent of the decision, says: “The movie was created with the idea of establishing a vehicle to chip away at the decision. It was part of a very clear strategy to undo McCain-Feingold.” CU head David Bossie confirms this contention, saying after the decision: “We have been trying to defend our First Amendment rights for many, many years. We brought the case hoping that this would happen… to defeat McCain-Feingold.” [Washington Post, 1/22/2010]
Entity Tags: US Supreme Court, Theodore (“Ted”) Olson, Sonia Sotomayor, Clarence Thomas, Anthony Kennedy, Antonin Scalia, Citizens United, Bipartisan Campaign Reform Act of 2002, Barack Obama, Samuel Alito, Ruth Bader Ginsburg, Stephen Breyer, New York Times, Nick Nyhart, Evan Tracey, David Bossie, Hillary Clinton, Jeffrey Toobin, Federal Election Commission, John Paul Stevens, Malcolm Stewart, John G. Roberts, Jr, Los Angeles Times
Timeline Tags: Civil Liberties
In a highly unusual action for a sitting Supreme Court Justice, Justice Clarence Thomas strongly defends the Court’s recent Citizens United ruling that allows unlimited corporate and union funding of campaign activities (see January 21, 2010). He makes his remarks at the Stetson University College of Law in Gulfport, Florida. Thomas was part of the 5-4 majority that ruled on the case. He also says that he refused to attend the recent State of the Union address by President Obama, where fellow Justice Samuel Alito apparently contradicted Obama’s critical characterization of the ruling (see January 27-29, 2010), because under Obama, these addresses have become “partisan,” stating: “I don’t go because it has become so partisan and it’s very uncomfortable for a judge to sit there… there’s a lot that you don’t hear on TV—the catcalls, the whooping and hollering and under-the-breath comments (see September 9, 2009). One of the consequences is now the Court becomes part of the conversation, if you want to call it that, in the speeches. It’s just an example of why I don’t go.” Thomas mocks media criticisms of the ruling, saying: “I found it fascinating that the people who were editorializing against it were The New York Times Company and The Washington Post Company. These are corporations.” It is a mistake, Thomas says, to consider regulation of corporations’ campaign activities as “some sort of beatific action,” and he cites the 1907 Tillman Act, the first federal legislation banning corporate contributions to federal candidates (see 1907), as being sparked by racism, saying: “Go back and read why [Senator Benjamin] Tillman introduced that legislation. Tillman was from South Carolina, and as I hear the story he was concerned that the corporations, Republican corporations, were favorable toward blacks and he felt that there was a need to regulate them.” Thomas says the underpinning of the decision was the First Amendment’s protection of speech regardless of how people choose to assemble to participate in the political process. “If 10 of you got together and decided to speak, just as a group, you’d say you have First Amendment rights to speak and the First Amendment right of association,” he says. “If you all then formed a partnership to speak, you’d say we still have that First Amendment right to speak and of association. But what if you put yourself in a corporate form?” The answer would be the same, Thomas says. [New York Times, 2/3/2010]
Timeline Tags: Civil Liberties
The retired director of the ACLU, Ira Glasser, writes a detailed editorial in support of the recent Citizens United ruling that opened the way for corporations and labor unions to spend unlimited money in campaign activities (see January 21, 2010). The ACLU supported the case throughout its progression (see January 10-16, 2008, March 24, 2008, March 15, 2009, June 29, 2009, and September 9, 2009), and filed briefs in support of the plaintiff, the conservative advocacy group Citizens United. Glasser says that the “screaming dismay” that “most liberals” evinced on hearing of the decision was unwarranted. Corporations are still banned from directly contributing to political campaigns, and President Obama’s assertion that the decision “reversed a century of law” is incorrect; the 1907 Tillman Act that banned corporations from contributing to campaigns or candidates is still in effect (see 1907). Instead, Glasser writes, the decision is “a huge victory… for freedom of speech and against government censorship” (see January 21, 2010, January 22, 2010, and February 2, 2010). Corporations, he writes, have the same right to speech as individuals, and they exercise that speech by spending money promoting issues and candidates, or criticizing those issues and candidates. He cites two instances in which the ACLU was stopped by the Federal Election Commission (FEC) from engaging in “political free speech,” one in 1972 when the FEC stopped the ACLU from taking out an ad in the New York Times criticizing President Nixon’s opposition to school busing to implement integration, and in 1984, when the FEC barred the ACLU from making public statements critical of President Reagan. Both instances took place inside the “window” of time before an election (30 days before a primary, 60 days before a general election) in which such utterances were considered supporting a candidate. Nonprofit groups such as Citizens United have been victimized for decades by campaign finance restrictions, Glasser writes. Later in the article, he derides the idea that restricting or controlling speech creates equality between rich and poor in elections, curbing the propensity for the rich to wield more influence and be heard more broadly than less wealthy citizens or organizations. “Money isn’t speech, but how much money one has always determines how much speech one has,” Glasser writes. “Most if not all of you reading this have never had as much speech as, say, the New York Times or George Soros or Nelson Rockefeller or George Bush or, as we recently discovered in my city, Mayor [Michael] Bloomberg. The inequities of speech that flow from the inequities of wealth are certainly a big and distorting problem for a democracy, and have always been so, and not just during elections. No one knows how to remedy that, short of fundamental re-distributions of wealth. But I’ll tell you what isn’t a remedy: granting the government the power to decide who should speak, and how much speech is enough. Nothing but disaster flows from that approach, and that was what was at stake in this case.” He concludes by advocating public financing of elections entirely, writing: “Liberals and Democrats have been the chief offenders… favoring equity in the abstract but never seeing how the particular reforms they advocated made the problems they wished to remedy worse, and never seeing that giving the government the authority to regulate speech was not a good thing. Maybe now this result, which has steamed up liberals and Democrats, may at last shift their attention to the kind of public financing that equitably provides money for more speech instead of pretending to create equity by granting the government the authority to restrict speech. We shall see.” [Huffington Post, 2/3/2010]
Timeline Tags: Civil Liberties
December 21, 2011: Republican Presidential Frontrunner Advocates Allowing Wealthy to Give Unlimited Amounts Directly to Candidates
Republican presidential frontrunner Mitt Romney (R-MA) tells MSNBC reporter Chuck Todd that wealthy donors should be able to give unlimited amounts directly to candidates in lieu of donating to “independent” organizations such as super PACs (see March 26, 2010, June 23, 2011, and November 23, 2011). The US history of campaign finance law (see 1883, 1896, December 5, 1905, 1907, June 25, 1910, 1925, 1935, 1940, February 7, 1972, 1974, May 11, 1976, January 30, 1976, January 8, 1980, March 27, 1990, March 27, 2002, and December 10, 2003), including the 2010 Citizens United decision (see January 21, 2010), has always put stringent limitations on what donors can contribute directly to candidates. Asked if he thinks the Citizens United decision was a poor one, Romney responds: “Well, I think the Supreme Court decision was following their interpretation of the campaign finance laws that were written by Congress. My own view is now we tried a lot of efforts to try and restrict what can be given to campaigns, we’d be a lot wiser to say you can give what you’d like to a campaign. They must report it immediately and the creation of these independent expenditure committees that have to be separate from the candidate, that’s just a bad idea.” Ian Millhiser, a senior legal analyst for the liberal news Web site Think Progress, responds: “It’s not entirely clear from this interview that Romney understands what happened in Citizens United. That decision emphatically did not follow any ‘interpretation of campaign finance laws that were written by Congress.’ Rather, Citizens United threw out a 63-year-old federal ban on corporate money in politics.… [I]t was not a case of judges following the law. More importantly, however, Romney’s proposal to allow wealthy donors to give candidates whatever they’d ‘like to a campaign’ is simply an invitation to corruption (see October 17, 2011). Under Romney’s proposed rule, there is nothing preventing a single billionaire from bankrolling a candidate’s entire campaign—and then expecting that candidate to do whatever the wealthy donor wants once the candidate is elected to office. Romney’s unlimited donations proposal would be a bonanza for Romney himself and the army of Wall Street bankers and billionaire donors who support him, but it is very difficult to distinguish it from legalized bribery.” Millhiser notes that Romney had a different view on the subject in 1994, saying then that when you allow special interest groups to buy and sell candidates, “that kind of relationship has an influence on the way that [those candidates are] going to vote.” [Think Progress, 12/21/2011]
January 10, 2012: Republican National Committee Sues for Right of Donors to Make Unlimited Contributions Directly to Candidates
The Republican National Committee (RNC) files a court brief calling the federal ban on direct corporate donations to candidates unconstitutional, and demanding it be overturned. Such direct donations are one of the few restrictions remaining on wealthy candidates wishing to influence elections after the 2010 Citizens United decision (see January 21, 2010). The brief is in essence an appeal of a 2011 decision refusing to allow such direct donations (see May 26, 2011 and After). The RNC case echoes a request from Senator Mike Lee (R-UT) that he be allowed to form and direct his own super PAC (see November 23, 2011), and recent remarks by Republican presidential frontrunner Mitt Romney (R-MA) calling for donors to be allowed to contribute unlimited amounts to candidates (see December 21, 2011). The RNC brief claims: “Most corporations are not large entities waiting to flood the political system with contributions to curry influence. Most corporations are small businesses. As the Court noted in Citizens United, ‘more than 75 percent of corporations whose income is taxed under federal law have less than $1 million in receipts per year,’ while ‘96 percent of the 3 million businesses that belong to the US Chamber of Commerce have fewer than 100 employees.’ While the concept of corporate contributions evokes images of organizations like Exxon or Halliburton, with large numbers of shareholders and large corporate treasuries, the reality is that most corporations in the United States are small businesses more akin to a neighborhood store. Yet § 441b does not distinguish between these different types of entities; under § 441b, a corporation is a corporation. As such, it is over-inclusive.” Think Progress legal analyst Ian Millhiser says the RNC is attempting to refocus the discussion about corporate contributions onto “mom and pop stores” and away from large, wealthy corporations willing to donate millions to candidates’ campaigns. If the court finds in favor of the RNC, Millhiser writes: “it will effectively destroy any limits on the amount of money wealthy individuals or corporation[s] can give to candidates. In most states, all that is necessary to form a new corporation is to file the right paperwork in the appropriate government office. Moreover, nothing prevents one corporation from owning another corporation. For this reason, a Wall Street tycoon who wanted to give as much as a billion dollars to fund a campaign could do so simply by creating a series of shell corporations that exist for the sole purpose of evading the ban on massive dollar donations to candidates” (see October 30, 2011). [United States of America v. Danielcytk and Biagi, 1/10/2012 ; Think Progress, 1/11/2012] The RNC made a similar attempt in 2010, in the aftermath of Citizens United; the Supreme Court refused to hear an appeal of its rejection. [New York Times, 5/3/2010; Tom Goldstein, 5/14/2012] Over 100 years of US jurisprudence and legislation has consistently barred corporations from making such unlimited donations (see 1883, 1896, December 5, 1905, 1907, June 25, 1910, 1925, 1935, 1940, March 11, 1957, February 7, 1972, 1974, May 11, 1976, January 30, 1976, January 8, 1980, March 27, 1990, March 27, 2002, and December 10, 2003). Shortly after the Citizens United ruling, RNC lawyer James Bopp Jr. confirmed that this case, like the Citizens United case and others (see Mid-2004 and After), was part of a long-term strategy to completely dismantle campaign finance law (see January 25, 2010).
May 14, 2012: Author and Reporter: Chief Justice Engineered ‘Citizens United’ to Expressly Invalidate Campaign Finance Law
Author and political pundit, Jeffrey Toobin, publishes an in-depth article for the New Yorker showing that Chief Justice John Roberts engineered the 2010 Citizens United Supreme Court decision (see January 21, 2010), moving it from a case that could well have been considered and decided on a relatively narrow basis to a sweeping decision that reformed the nation’s campaign finance structure. Toobin writes that the underlying issue was quite narrow: the conservative advocacy organization Citizens United (CU) wanted to run a documentary attacking presidential candidate Hillary Clinton (D-NY) on “video on demand” cable broadcast (see January 10-16, 2008). Under the McCain-Feingold campaign finance legislation (see March 27, 2002 and December 10, 2003), the Federal Election Commission (FEC) disallowed the broadcast because it would come 30 days or less before primary elections. CU challenged the decision in court (see January 10-16, 2008, March 24, 2008, March 15, 2009, June 29, 2009, and September 9, 2009). [New Yorker, 5/21/2012] Toobin’s article is an excerpt from his forthcoming book The Oath: The Obama White House vs. The Supreme Court. It is dated May 21, but appears on the New Yorker’s Web site on May 14. [Tom Goldstein, 5/14/2012]
Oral Arguments – During the initial arguments (see March 15, 2009), attorney Theodore Olson, the former solicitor general for the Bush administration, argued a narrow case: that McCain-Feingold’s prohibitions only applied to television commercials, not to full-length documentary films. Olson argued, “This sort of communication was not something that Congress intended to prohibit.” Toobin writes: “Olson’s argument indicated that there was no need for the Court to declare any part of the law unconstitutional, or even to address the First Amendment implications of the case. Olson simply sought a judgment that McCain-Feingold did not apply to documentaries shown through video on demand.… If the justices had resolved the case as Olson had suggested, today Citizens United might well be forgotten—a narrow ruling on a remote aspect of campaign-finance law.” However, Justice Antonin Scalia, one of the most vocal opponents of campaign finance restrictions on the Court (see September 26, 1986, December 15, 1986, March 27, 1990, June 26, 1996, June 16, 2003, December 10, 2003, and June 25, 2007), seemed disappointed in the limited nature of Olson’s argument, Toobin writes. The oral arguments expand the case far beyond Olson’s initial position. Olson’s initial intention was to narrow the case so that the Court would not have to expand its scope to find in favor of CU.
Change of Scope – Ironically, the government’s lead lawyer, Deputy Solicitor General Malcolm Stewart, may well have changed the scope of the case in favor of a broader interpretation. Traditionally, lawyers with the solicitor general (SG)‘s office are far more straightforward with the Court than is usual in advocacy-driven cases. Toobin writes: “The solicitor general’s lawyers press their arguments in a way that hews strictly to existing precedent. They don’t hide unfavorable facts from the justices. They are straight shooters.” Stewart, who had clerked for former Justice Harry Blackmun and a veteran of the SG office since 1993, is well aware of the requirements of Court arguments. But, Toobin writes, Stewart fell into a trap, prompted by Justice Samuel Alito’s pointed questioning about the government’s ability to ban or censor printed materials—i.e. books—under McCain-Feingold—and follow-up questions by Roberts and Justice Anthony Kennedy, that led him to claim incorrectly that the government could indeed censor books under the law. Stewart’s incorrect assertion gave Roberts and his colleagues the chance to overturn McCain-Feingold on the grounds of the First Amendment right to freedom of speech.
Second Arguments – The second arguments were held on September 9, 2009 (see September 9, 2009). The concept of “money equals speech” goes back at least as far as the 1976 Buckley decision (see January 30, 1976), and the five conservative justices were poised to stretch that definition much farther than has previously been done.
Majority Opinion – Toobin writes that Roberts’s decision was then to decide “how much he wanted to help the Republican Party. Roberts’s choice was: a lot.” Roberts assigned the opinion to Kennedy, the “swing” justice who had already written an expansive opinion gutting almost a century’s worth of campaign finance legislation. Kennedy tends to “swing wildly in one direction or another,” Toobin writes, “an extremist—of varied enthusiasms.” In the area of campaign finance, he has consistently “swung” to the conservative side of the argument. He is, Toobin writes, “extremely receptive to arguments that the government had unduly restricted freedom of speech—especially in the area of campaign finance.” Moreover, Kennedy enjoys writing controversial and “high-profile” opinions. Toobin says that Roberts’s choice of Kennedy to write the opinion was clever: Roberts came onto the Court promising to conduct himself with judicial modesty and a respect for precedent. Kennedy, with his draft opinion at the ready, was a better choice to write an opinion that lacked either modesty or a respect for Court precedence. Roberts, Toobin writes, “obtained a far-reaching result without leaving his own fingerprints.” Kennedy, in an often-eloquent opinion that did not deal with the gritty reality of the Citizens United case, stated that any restraint of money in a campaign risked infringing on free speech. “Speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people. The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it.… By taking the right to speak from some and giving it to others, the government deprives the disadvantaged person or class of the right to use speech to strive to establish worth, standing, and respect for the speaker’s voice. The government may not by these means deprive the public of the right and privilege to determine for itself what speech and speakers are worthy of consideration. The First Amendment protects speech and speaker, and the ideas that flow from each.” Kennedy also reaffirmed the Court’s perception that corporations deserve the same First Amendment protections enjoyed by individuals. Kennedy’s opinion found, in Toobin’s words, that “[t]he Constitution required that all corporations, for-profit and nonprofit alike, be allowed to spend as much as they wanted, anytime they wanted, in support of the candidates of their choosing.” One of the only provisions remaining in McCain-Feingold after Kennedy’s opinion was the ban on direct corporate contributions to candidates.
Fiery Dissent from ‘Liberal’ Stevens – Toobin reminds readers that the elder statesman of the “liberal” wing of the Court at the time, John Paul Stevens, is a “moderate Midwestern Republican,” one of the last of a “vanishing political tradition.” Though Stevens’s views have migrated left on some issues, such as the death penalty, Toobin writes that the perception of Stevens as a Court liberal is mostly because of the Court’s steady progression to the right. Toobin writes that the 90-year-old Stevens has grown dispirited in recent years, as the conservative wing of the Court, led by Scalia, Alito, and Roberts with Clarence Thomas and often Kennedy in tow, overturned one Court precedent after another. “The course of Citizens United represented everything that offended Stevens most about the Roberts Court,” Toobin writes. Much of Stevens’s objections to the Roberts Court are rooted in procedure; he is deeply troubled by the Citizens United case being transformed by Roberts and his conservative colleagues from a narrowly focused case about a single McCain-Feingold provision to what Toobin calls “an assault on a century of federal laws and precedents. To Stevens, it was the purest kind of judicial activism.” Stevens wrote in his angry dissent, “Five justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law.” A simple change in the McCain-Feingold law to disallow its application to full-length documentaries the CU case was sparked by, or even to nonprofit organizations such as CU, would have been appropriate, Stevens wrote. He penned a 90-page dissent, the longest of his career, blasting almost every aspect of Kennedy’s decision, starting with Kennedy’s ignoring of precedent and continuing with a refutation of Kennedy’s perception of the Constitutional definitions of “censorship” and “free speech.” Stevens was angered by Kennedy’s equivocation of corporations with people. “The Framers thus took it as a given that corporations could be comprehensively regulated in the service of the public welfare,” he wrote. “Unlike our colleagues, they had little trouble distinguishing corporations from human beings, and when they constitutionalized the right to free speech in the First Amendment, it was the free speech of individual Americans that they had in mind.” Congress has drawn significant distinctions between corporations and people for over a century, he wrote: “at the federal level, the express distinction between corporate and individual political spending on elections stretches back to 1907, when Congress passed the Tillman Act” (see 1907). He even challenged Kennedy’s stated fear that the government might persecute individuals’ speech based on “the speaker’s identity,” sarcastically noting that Kennedy’s opinion “would have accorded the propaganda broadcasts to our troops by ‘Tokyo Rose’ [a famed Japanese propagandist] during World War II the same protection as speech by Allied commanders.” According to Toobin, Stevens’s law clerks disliked the dated reference, but Stevens, a Navy veteran, insisted on keeping it. Toobin writes that “Stevens’s conclusion was despairing.” Stevens concluded: “At bottom, the Court’s opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self-government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt.… It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.” Toobin notes that as “impressive” as Stevens’s dissent may have been, it was Kennedy’s opinion that “was reshaping American politics.”
Reaction – In his State of the Union address six days after the verdict, President Obama referenced Justice Ruth Bader Ginsburg’s concerns about foreign influence in American politics by saying, “With all due deference to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests—including foreign corporations—to spend without limit in our elections” (see January 27-29, 2010). Democrats cheered as Obama said, “I don’t think American elections should be bankrolled by America’s most powerful interests or, worse, by foreign entities.” Alito’s mouthing of the words “not true” stirred some controversy; Toobin notes that Alito was technically correct, as “Kennedy’s opinion expressly reserved the question of whether the ruling applied to foreign corporations.” However, Toobin notes, “as Olson had argued before the justices, the logic of the Court’s prior decisions suggested that foreign corporations had equal rights to spend in American elections.” With the Citizens United decision and a March 2010 decision that allowed for the formation of “super PACs” (see March 26, 2010), the way was clear for what Toobin calls “presidential campaigns in 2012 that were essentially underwritten by single individuals.” He notes the billionaires that almost single-handedly supported Republican presidential candidates (see February 21, 2012, February 16-17, 2012, February 21, 2012, March 26, 2012, and April 22, 2012), and the efforts of organizations like Crossroads GPS that have to date raised tens of millions of dollars for Republican candidates (see May 2, 2012). Toobin believes that the Court will continue to deregulate campaign finance, noting the 2011 decision that invalidated Arizona’s system of public financing that state enacted after a series of campaign finance scandals (see June 27, 2011). He concludes, “The Roberts Court, it appears, will guarantee moneyed interests the freedom to raise and spend any amount, from any source, at any time, in order to win elections.” [New Yorker, 5/21/2012]
Criticisms of the Article – Toobin’s article will engender significant criticism, from nuanced questioning of particular elements of Toobin’s story (see May 14, 2012) to accusations of outright “fictionalizing” (see May 17, 2012) and “libelous” claims (see May 15-17, 2012).
Entity Tags: Clarence Thomas, US Supreme Court, Citizens United, Barack Obama, Antonin Scalia, Anthony Kennedy, American Crossroads GPS, Tillman Act, Bipartisan Campaign Reform Act of 2002, Theodore (“Ted”) Olson, Ruth Bader Ginsberg, John Paul Stevens, John G. Roberts, Jr, Malcolm Stewart, Jeffrey Toobin, Republican Party, Hillary Clinton, Samuel Alito, Federal Election Commission
Timeline Tags: Civil Liberties
June 14, 2012: Feingold: Campaign Finance System Shattered by ‘Citizens United,’ up to Court to Repair
Former Senator Russ Feingold (D-WI) writes an article for the Stanford Law Review discussing the dominance of “big money” in the nation’s elections in the wake of the 2010 Citizens United decision (see January 21, 2010), documenting his belief that the rise in small-donor contributions that put Democrats in office in 2006 and 2008 led to the Citizens United backlash, and calling for sweeping campaign finance reform. Feingold writes, “Without a significant change in how our campaign finance system regulates the influence of corporations, the American election process, and even the Supreme Court itself, face a more durable, long-term crisis of legitimacy.” Feingold heads Progressives United, an advocacy group that pushes for the overturning of the Citizens United decision and campaign finance legislation.
Background – Feingold gives the background of campaign finance reform in America: the 1907 Tillman Act which banned corporations from spending their money in elections (see 1907), which he says was spurred by the realization that “corporate influence corrupts elections”; the Taft-Hartley Act of 1947, which extended the Tillman ban to labor unions (see June 23, 1947); and more recent legislation, including the Bipartisan Campaign Reform Act of 2002 (BCRA—see March 27, 2002), which Feingold co-authored with Senator John McCain (R-AZ). “And for several election cycles, between 2004 and 2008, our system seemed headed towards more fair and transparent elections,” he writes. “But Citizens United changed everything.” The “road to corruption” in modern elections, he says, began when Democrats in the early 1990s began exploiting a loophole in finance regulation that allowed the creation of “soft money” groups (see January 8, 1980, November 28, 1984, December 15, 1986, and December 10, 2003) that allowed parties to solicit unlimited amounts of donations from corporations, labor unions, and individuals. “This system was corrupting,” Feingold writes. “Senators would solicit gigantic, unregulated contributions from the same corporations that had legislation pending on the Senate floor. Both parties were guilty.” The BCRA plugged the “soft money” loophole. Even as the BCRA began to reform campaign finance practices, Feingold writes, “the same corporate interests that fought McCain-Feingold set to work to dismantle it. In what was clearly an orchestrated effort by opponents of campaign reform (see January 25, 2010), a group called Citizens United produced a movie savaging the record of then-Senator Clinton (see January 10-16, 2008). Ostensibly intended to educate the public about conservative concerns regarding Clinton’s run for the presidency, the film was little more than a legal vehicle to challenge some of the common-sense restrictions enacted by the BCRA (see January 10-16, 2008, March 24, 2008, March 15, 2009, June 29, 2009, and September 9, 2009). Specifically, the creators of the film sought to challenge the BCRA’s requirement that electioneering communications—commonly known as ‘phony issue ads’ that attack a candidate in the days before the election, but don’t explicitly advocate voting for or against that candidate—be subject to the same disclosure requirements and contribution limits as other campaign ads.” The case was argued on narrow grounds about a specific provision of the BCRA, but the Court’s conservative justices, led by Chief Justice John Roberts, “manipulated the Court’s process to achieve that result” (see May 14, 2012). Justice John Paul Stevens wrote in his dissent to the majority opinion, “[F]ive justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law.” The ruling, Feingold writes, “created a framework for corruption parallel to ‘soft money.’” Instead of “soft money” organizations, Citizens United led to the creation of the “super PAC” (see March 26, 2010, June 23, 2011, November 23, 2011, January 4, 2012, January 4, 2012, January 13, 2012, and February 20, 2012). It has also called into doubt the legitimacy of US elections themselves, due to the “increasing skepticism about the campaign finance system.” Many voters now believe “that the average participant’s small contribution is irrelevant, and that the average person’s vote is grossly outweighed by the gigantic contributions now allowed.”
Internet Politics and Small-Donor Contributions – In part due to the BCRA, Feingold writes, “[f]or three election cycles, in 2004, 2006, and 2008, our system of campaign financing began to take shape in a way that channeled citizen participation and provided incentive for candidates to turn to the democratic support of online activists and small-dollar contributors.” He cites the 2004 presidential campaign of Howard Dean (D-VT), who went on to chair the Democratic National Committee (DNC), as the first powerful instance of “online organizing,” using the Internet to garner millions of dollars in small donations from individual citizens. In 2008, the presidential campaign of Barack Obama (D-IL) pushed the Dean innovation even further. The Obama campaign “raised a historic amount in small-dollar contributions,” Feingold writes, and created an online platform to engage supporters. All told, the Obama campaign raised $500 million online.
An Ineffective FEC – By 2008, he writes, the Federal Election Commission (FEC) was completely impotent. The agency “has been fatally flawed since the time of its creation—any administrative law professor will point out that a law enforcement commission with an even number of commissioners [six] is probably designed specifically not to enforce the law at all,” he writes. By 2008, the FEC only had two seated commissioners, and in effect was not enforcing campaign laws whatsoever. Even after eventually receiving a full complement of commissioners, he writes, the agency “remains ineffective, as even Democratic violators go unpunished as conservative commissioners remain unwilling, philosophically, to enforce any campaign finance law.”
2012: Corporations Trump Citizens – In 2012, corporate contributions far outweigh small-dollar donations by individuals. “[T]he most prominent actors in the 2012 election cycle are unnamed corporations and a small group of influential—primarily conservative—billionaires.” Seventy percent of registered voters think super PACs should be illegal, according to polls, and the favorability rating of the Court has dropped a significant amount. Overall, Feingold writes, the public is firmly against the Citizens United paradigm of campaign finance. He advocates strong legislation from Congress, fixing the “broken system of presidential public financing,” and replacing the “dysfunctional” FEC “with a true enforcement agency.” The ultimate repair of campaign finance lies with the Court, he says, noting that the Court has a chance to do some early repair with the Montana case it is now considering (see June 25, 2012). Regardless of what the Court does or does not do in the Montana case, he concludes, “[t]oday’s framework for corruption cannot stand.” [Stanford Law Review, 6/14/2012]
Entity Tags: Howard Dean, Bipartisan Campaign Reform Act of 2002, Barack Obama, Citizens United, Hillary Clinton, Russell D. Feingold, Federal Election Commission, John McCain, John G. Roberts, Jr, Stanford Law Review, John Paul Stevens
Timeline Tags: Civil Liberties
Full Show: The Bare Knuckle Fight Against Money in Politics
November 14, 2014
In this turbulent midterm election year, two academics decided to practice what they preached. They left the classroom, confronted the reality of down-and-dirty politics, and tried to replace moneyed interests with the public interest.
Neither was successful – this year, at least – but on this week’s show, Bill talks with them about their experiences and the hard-fought lessons learned about the state of American democracy.
Lawrence Lessig, who teaches law at Harvard, is a well-known Internet activist and campaign finance reform advocate. This election cycle, he started a crowd-funded SuperPAC aimed at reducing the influence of money in politics. Lessig tells Bill: “Our democracy is flat lined. Because when you can show clearly there’s no relationship between what the average voter cares about, only if it happens to coincide with what the economic elite care about, you’ve shown that we don’t have a democracy anymore.”
Zephyr Teachout, a professor of constitutional and property law at Fordham Law School, ran against New York State Governor Andrew Cuomo in the Democratic primary. She received more than a third of the vote and carried 30 of the state’s 62 counties, surprising everyone – including Cuomo. “When you talk about the corruption in Congress, people are talking about the same thing that Madison was talking about. This sense that our public servants are just serving themselves,” Teachout tells Bill.
Producer: Gail Ablow. Segment Producer: Lena Shemel. Editor: Rob Kuhns. Intro Editor: Sikay Tang.
On Bill Moyers Show (Cancelled),
Zephyr Teachout, Lawrence Lessig –
Now you can see why ‘Moyers & Company’ was cancelled!
BILL MOYERS: Welcome. What happens when two college professors leave the theories of the classroom behind for the real world of bare-knuckle politics? Well, they learn a lesson the hard way. Just ask Zephyr Teachout and Larry Lessig. Each is an outstanding scholar. She teaches constitutional and property law at Fordham Law School here in New York, and recently published this highly acclaimed book, “Corruption in America: From Benjamin Franklin’s Snuff Box to Citizens United.” Larry Lessig teaches law at Harvard and directs that university’s Edmond J. Safra Center for Ethics. Both champion free and fair competition in our economy and our elections.
Zephyr Teachout ran for governor of New York in the Democratic primary against incumbent and friend of Wall Street, Andrew Cuomo.
ZEPHYR TEACHOUT in campaign ad: My name is Zephyr Teachout and I’m running in the Democratic primary for the governor of the state of New York.
BILL MOYERS: A political unknown with no money, she surprised just about everyone, including Cuomo, by getting more than a third of the votes. A good showing, given that he spent $60.62 for each of his votes while she could only spend $1.57, but, nonetheless, still a defeat. Larry Lessig decided to fight fire with fire. He raised several million dollars for a super PAC called Mayday and backed congressional candidates who favor reducing the influence of money in politics over those who just can’t get enough of that sweet campaign cash. If he could prove that people care enough about corruption to have it make the difference when they vote, it might become politically toxic for politicians to oppose reform. But Lessig lost, too. His six picks in truly competitive races went down to defeat. So Larry Lessig and Zephyr Teachout are back in class, for now. But ring the bell. Word has it they have only begun to fight. Welcome to both of you.
BILL MOYERS: Welcome to both of you.
LAWRENCE LESSIG: Thanks for having us.
ZEPHYR TEACHOUT: Yeah.
BILL MOYERS: So you tried nobly to challenge the system from inside and it didn’t work out for either of you. Was it naïve?
ZEPHYR TEACHOUT: No. I actually think we got a lot done. I mean, I’d love to be governor right now. I would love to have won. But we showed that people out there, there’s a sleeping giant out there of people who actually want a true, responsive democracy.
BILL MOYERS: But your money didn’t wake that giant up.
LAWRENCE LESSIG: Well, you know, I mean, the critics have been gloating of course. They call me an egghead, they say it’s a complete failure. Look, they’re right about me being an egghead. There’s no doubt about that. But it wasn’t a failure in the sense that the data we have shows that people care about this issue. Zephyr’s campaign I think showed that. But in the races that we were in, we moved people to care about this issue and to vote on the basis of this issue. Now of course, not enough to overcome the tsunami of Republican victories. Obviously, we were not able to overcome that. But that’s not what we were pushing against. We were pushing against a view expressed in “Politico.” The view was: This is a quote, “zero issue.” It doesn’t move voters at all. And that’s just not true. We think it moves voters more than issues that I think of as fundamental, like, climate change or unions. This is an issue that really rallies people because they are so tired of the corruption of the system.
BILL MOYERS: So what did you learn new about money that you hadn’t known in your long and thorough examination of corruption in America?
ZEPHYR TEACHOUT: I knew that candidates have to spent half their time or more fundraising. And I knew how corrupting that was. What I didn’t realize is how, in some ways, humiliating it is.
BILL MOYERS: Yeah.
ZEPHYR TEACHOUT: That you feel like a vacuum cleaner salesman or something. You’re sitting in a room with your fundraiser, making dial after dial. You’re supposed to dial 30 times an hour. You’re supposed to hit a quarter of your calls. And if people are sort of dispirited with the leadership we have now, I think it’s in part because we’re selecting leaders based on who is good at sitting in that room, being a vacuum cleaner salesman as opposed to traditional understandings of leadership, which is who has real ideas about how to change things, who has special capacities for inspiration or management.
BILL MOYERS: What did you learn about money you didn’t know?
LAWRENCE LESSIG: Well, I think that one thing we saw is how fearful the powerful are–
ZEPHYR TEACHOUT: Yeah.
LAWRENCE LESSIG: –to stand up against the system. And in one of our races we were running against the chairman of the Energy Committee and–
BILL MOYERS: A Republican.
LAWRENCE LESSIG: A Republican. And once he knew we were running, he started reaching out to our top donors and saying, “What’s going on?” And our top donors were like, “What are you doing? We’re gonna be–”
BILL MOYERS: Calling you? They called you–
LAWRENCE LESSIG: No. Well, they didn’t actually directly call me, but we knew indirectly that they were anxious about what had happened.
BILL MOYERS: I remember reading this story, this is a Silicon Valley high-tech tycoon. Did I hear you say that when he got word that you were taking on Fred Upton, who oversees the committee that has jurisdiction over his company, he got nervous?
LAWRENCE LESSIG: Well, there’s a couple stories here. One is that people who actually contributed got nervous. They were anxious to quickly distance themself from our attack on Fred Upton. But just before all of that happened, we had a very large donor who was willing to give us a very large amount of money. And then heard that we were gonna take on Fred Upton and said, “We can’t be on the wrong side of Fred Upton.” So we have this system where people are afraid, even the richest are afraid to step up against this power because they know the way in which the power is going to–
ZEPHYR TEACHOUT: And I think, I actually think we have a lot of fear in our politics now in ways that people sense. You know, there– a lot of people didn’t come out to vote in this midterm election. And I think it’s hard to vote for somebody who feels fearful. I started seeing fear in Andrew Cuomo’s eyes.
And I don’t think it was just of me or of a challenger, but a sense– sometimes I feel like it’s a sense that politicians know that they aren’t really in control, that their donors are. And that’s a scary feeling, that lack of power.
And I think, you know, you see somebody like Elizabeth Warren or others who speak fearlessly, and there’s genuine excitement around that. Too often I think Democrats just focus on, like, the message box, what is the correct message to say, as opposed to really engaging in leadership itself and the fearlessness that’s required there.
LAWRENCE LESSIG: The– and the other thing that I learned, you know, I went into this thinking we were gonna have to turn to a lot of big funders to raise the money that we needed to actually run this campaign. And then we opened up this crowdfunding site. And more than 50,000 people reached into their checkbook to make it possible for us to run this campaign.
And this was a number that I just had no idea we would ever reach. And I think if you inspire people, the way I think Zephyr plainly did in her campaign, with this ideal they rally. Lots of people rally to this idea.
BILL MOYERS: Do you think that elections run by and for donors, give voters a false sense of power? False sense of control over our democratic process?
ZEPHYR TEACHOUT: I think that in the last decade or so, I mean, really since the early ’90s, there’s been a real shift to candidates focusing and serving donors. And if you have to spend half your day talking to donors, you’re 70 percent of your day talking to donors, and then turn around and give a speech engaging people on the issues that matter to them, their, you know, dental care, credit cards, you know, the real difficulty finding a job, it feels false. Because it’s hard to have those two conversations at the same time. And gradually, I think people have gotten more and more disillusioned because they feel like they aren’t being served. They’re being sort of spoken to superficially, but fundamentally not listened to. And I don’t blame them–
BILL MOYERS: Not democratic then?
ZEPHYR TEACHOUT: It’s not democratic. Yeah–
BILL MOYERS: And if elections are not democratic, can we get
anything else right? Or is it just all cosmetic?
LAWRENCE LESSIG: Well, we’ve got to make it democratic first–
ZEPHYR TEACHOUT: Well, yeah.
LAWRENCE LESSIG: –I mean that’s–
BILL MOYERS: But it’s not. You both have said it’s not. It’s a donor-driven election.
ZEPHYR TEACHOUT: Yes.
LAWRENCE LESSIG: Yeah.
ZEPHYR TEACHOUT: Yes.
LAWRENCE LESSIG: I mean, we have the data to show this now. There was a Princeton study by Martin Gilens and Ben Page. The largest empirical study of actual policy decisions by our government in the history of our government. And what they did is they related our actual decisions to what the economic elite care about, what the organized interest groups care about, and what the average voter cares about.
And when they look at the economic elite, you know, as the percentage of economic elite who support an idea goes up, the probability of it passing goes up. As the organized interests care about something more and more, the probability of it passing goes up. But as the average voter cares about something, it has no effect at all, statistically no effect at all on the probability of it passing. If we can go from zero percent of the average voters caring about something to 100 percent and it doesn’t change the probability of it actually being enacted. And when you look at those numbers, that graph, this flat line, that flat line is a metaphor for our democracy. Our democracy is flat lined. Because when you can show clearly there’s no relationship between what the average voter cares about, only if it happens to coincide with what the economic elite care about, you’ve shown that we don’t have a democracy anymore.
ZEPHYR TEACHOUT: And we don’t. But we have still these forms that allow for access to power. I mean, I look and I’m really inspired by what’s happening in Hong Kong. Those young students would do so much to have the access to the levers of power that we have now. So I think of it more like where we were in 1901 or 1902, where we had formal access to power, but, you know, if you and I were talking then, we’d be just as dispirited. You know, the big trusts really ran politics. I bet if there was a Princeton study of 1901–
LAWRENCE LESSIG: Of course.
ZEPHYR TEACHOUT: You’d find a flat-line relationship between what people wanted and what was happening. And yet, what you saw is this, you know, decades-long populist effort, finally finding fruit in the Tillman Act, the 1907 law, which banned direct corporate contributions to campaigns. And so I find hope actually from history, because we’ve had this disconnect between democracy and our formal rules before.
BILL MOYERS: Why is it we are failing? You as scholars and activists, we as journalists, in helping people understand that much of what happens to them is the consequence of how our elections are funded. Because many of the people that you care about voted against you a week ago.
LAWRENCE LESSIG: Well, I don’t think the people are confused about whether democracy is working for them. I think they understand the problem. What we’ve got to do is to give them a sense that there’s a solution. We’ve gotta prove that there’s a way to fix this problem. And that’s what, you know, lots of different efforts are trying to do. Trying to give people a practical sense that there’s something they can do.
You know, when we marched in– across New Hampshire, and we would meet people on the street. There was such deep passion for finding a way to finally get back control of our government. There was no argument that we had to have with them to prove, “Look, here’s a Princeton study that shows that–” they got the Princeton study–
BILL MOYERS: They got it, huh?
LAWRENCE LESSIG: –before the Princeton study was written.
BILL MOYERS: They were the Princeton study.
LAWRENCE LESSIG: And so it’s just giving them hope. Give them a sense that there is something to do. And when we give people a map, a way to understand how it’s possible. You know, we could fix 80 percent of this problem tomorrow with one statute that would establish a different way to fund campaigns. We don’t have to change the constitution to do that–
BILL MOYERS: What do you mean? You could do it without a constitutional amendment?
LAWRENCE LESSIG: We could pass–
ZEPHYR TEACHOUT: Yeah, yeah.
LAWRENCE LESSIG: –small-dollar, public-funding of elections, even with this Supreme Court tomorrow.
BILL MOYERS: What does that mean?
LAWRENCE LESSIG: Well, it means, for example, John Sarbanes has something called the Government by the People Act. And that act says small contributions, like in New York City, small contributions get matched by the government, in Sarbanes’ case, up to nine to one. Or Republicans have begun to push the idea of vouchers. Give every voter a voucher, which they can use to fund campaigns.
Now, the point is, both of those are perfectly constitutional. They could be passed tomorrow and they would radically change the focus candidates now give to the tiny fraction of the one percent who fund their campaigns because they’d be much more interested in talking to the many thousand who they need to fund their campaigns.
ZEPHYR TEACHOUT: And, I mean, Larry and I really share this belief that we need to communicate the solution. Because, I mean, I’ll tell you, in New York City, we have a system like this. And it has transformed– look, we don’t have a perfect government. But it has–
BILL MOYERS: It overwhelms you. Let’s be honest. I mean, we do. I’ve been a supporter of public financing in this city for a long time. But it doesn’t work. Where big money comes rolling in, as Larry said, like a tsunami.
ZEPHYR TEACHOUT: But what it has done is we have, you know, as a feminist, public financing is a real feminist issue. Far more women are running for office under public financing systems ’cause they don’t– you don’t need access to the old boy’s club, the old power club. Far more people of color are running for office.
In fact, the city council is now a majority, people of color in New York City, because you don’t need access to the same old boys club. I’m not saying it’s fixed every problem. But it changes. If I want to recruit people to run, which I do, if you walk up to them and say, “I want you to go out there and do this incredibly difficult, harrowing, exciting thing,” and if you show that you have grassroots support, you’ll have enough money to get heard.
That’s entirely different than, “I want you to go out there and do this exciting, harrowing thing. And half of your day, you have to spend begging at the feet of oligarchs and asking them for their permission to run for office.”
BILL MOYERS: And realistically though, if you have a statute or law, piece of legislation that could solve some of the problem, not all of it, you have no hope of getting it through in a Congress that’s run by Senator Mitch McConnell, who more than any other man in Congress today has enshrined the notion of monopoly as the game of politic.
LAWRENCE LESSIG: No, that’s right. But if we can imagine in 2016 changing control of Congress. And critically recruiting a number of principled Republicans to the idea that this corrupt system is corrupt, then I think it’s completely possible. And more and more, grassroots Republicans are recognizing that they’re not going to get what they want either under this system, where they have to sell out to the big interest. Look at David Brat’s victory over Eric Cantor, you know, the–
BILL MOYERS: In the Republican primary.
LAWRENCE LESSIG: In the Republican primary.
BILL MOYERS: He’s now in Congress, but beating the–
LAWRENCE LESSIG: He’s now in Congress.
BILL MOYERS: –major leader of the House.
LAWRENCE LESSIG: That’s right. And what his argument was, is that Eric Cantor had become a crony capitalist because he spent all of his time sucking up to the Wall Street bankers rather than advancing conservative causes. Now, the conservatives are increasingly getting this, just as the liberals have understood this. And if we can begin to get people to recognize that, “Look, we can differ on fundamental issues, but this really fundamental issue, we don’t differ about.” We have to find a way to make a democracy responsive to the voters.
ZEPHYR TEACHOUT: But I want to also talk about the Democratic Party here though. Because there’s a real split within the Democratic Party between the Wall Street wing and progressive, populist wing. And I’m a Democrat. And, you may not know this, but in 1924, I believe, a part of the Democratic party platform was public financing of elections.
BILL MOYERS: I didn’t. I was just in kindergarten then.
ZEPHYR TEACHOUT: But I actually think, you know, when we look at Democratic losses, it’s in part because enough, some, Democrats aren’t telling the truth about what’s happening in the economy. And people are going to respond. If they hear a candidate who’s lying to them about everything being okay, instead of some real truth telling, and some real truth telling about what’s wrong with politics and what’s wrong with power, and if Democrats can truly embrace public financing as a root issue, not as a sort of fussy, side reform, but as the root issue which enables Democrats to actually care about, you know, what’s happening in working-class people’s lives, I think you’re going to see a lot more excitement.
It’s the sense that Democrats aren’t really telling you the truth. Or they’re really working for Wall Street and they say they’re not, that I think turns people off. And I think there’s an extraordinary opportunity. Look, I know the odds are low. Václav Havel has this wonderful– I’m not going to get it exactly right–
BILL MOYERS: Champion of freedom in the Czech Republic.
ZEPHYR TEACHOUT: He says this thing about hope, which I find very powerful, that hope is not the same thing as optimism. Optimism is the belief something is likely to happen. Hope is the belief that it is possible and it is worth doing.
I see the power structures in this country. And if I’m going to be telling the truth to people, I’ll tell them honestly, we’re in tough shape. You know, the house is on fire in terms of our democracy. We are flat-lining in terms of responsiveness. But we still have opportunities if we take the moment, take this moment of extraordinary frustration and engage people directly on the root issue honestly and provide a path through. And I think we have to go that way instead of these half measures that aren’t really engaging the root issue.
BILL MOYERS: So Shane Goldmacher at the “National Journal” wrote, money didn’t buy the midterm elections. Quote, “few observers would place the blame on a lack of money. Instead, most would point to a tough political environment, a hostile Senate map, and— more than anything else—an unpopular president, as the factors that dragged down Democrats nationwide.” To what extent do you think money mattered last week?
ZEPHYR TEACHOUT: It mattered enormously. It mattered in the selection of candidates. You know, long before we even heard their names, the candidates were selected if they were basically comfortable working for big-money donors. And that in itself gets you out of the realm of inspirational leadership. And then, of course, it mattered in the drowning of ads and the sense that people outside of any accountable power, super PACs outside of any accountable power, were really sort of running the system. So, I think made a huge difference. And I think if you instead imagine the counterfactual, imagine this last election where in every competitive district, you’d seen competitive primaries with people with publicly financed campaigns who stepped forward because they had something to say, not ’cause they were next in line and not because they could raise money. We would have seen an extraordinary democratic, proud, fearless, populist fighting force. And I think they would’ve done very well.
LAWRENCE LESSIG: So, you’ve got to think about the psychology that Zephyr describes, of spending 50 percent to 70 percent of your time raising money. Those people were constantly aware about how what they say would affect the money in their race. And they said things that they knew would not risk too much, relative to the money.
So, even if the money doesn’t win, you know, when they said in 2012, Karl Rove lost, that was completely naïve. Karl Rove won, even if he didn’t win any race. Because what he did was to define the lines that you couldn’t cross. And what that has produced is exactly the kind of Democratic Party that Zephyr is attacking, one that is more interested in making sure they can continue to get the Wall Street money by not being too anti-Wall Street, instead of worrying about how we can get an economy again that is actually responding to what voters care about.
ZEPHYR TEACHOUT: Let me give you an example from my campaign. So, I did this fundraising. And I repeatedly heard from my bigger-end donors that they were not particularly excited about teachers’ unions. I’m a big supporter of teachers’ unions. So, I was very aware. And it was a choice I made. But I was very aware that every time that I went on television or Twitter or anywhere else talking about teachers’ unions, that would have an effect on my funding base.
The easier thing to do is to just ignore the issue, to say, “Well, I secretly agree with it. But I’m not going to say anything. ‘Cause that’s gonna affect my funding base.” And then, you end up with these milquetoast candidates who aren’t saying anything because they know where the public is and they know where their donors are and there’s very little where there’s an overlap.
LAWRENCE LESSIG: There was a wonderful leak in the course of this last campaign, a memo that Michelle Nunn’s campaign had developed.
BILL MOYERS: In Georgia?
LAWRENCE LESSIG: In Georgia.
BILL MOYERS: She was running for–
LAWRENCE LESSIG: For Senate.
BILL MOYERS: Senate.
LAWRENCE LESSIG: And a headline for the story was that the memo said she needed to spend 80 percent of her time raising money. But the really incredible part of the memo was where it went through every single issue that she was going to have to address and described which position she would have to take to raise the most money.
Now, you know, she’s a Democrat. I think she’s an exciting candidate. And I’m sorry she lost. But you can’t believe that when she was running in Georgia, she was not thinking about exactly how that money would matter in just the way that Zephyr is describing.
BILL MOYERS: But it seems to me as a journalist who’s covered this for a long time, that we’re at some kind of tipping point where the present system becomes institutionalized because the people who run the system get the big donations and they have no incentive to make the changes that you would like to see.
ZEPHYR TEACHOUT: Uh-huh. That’s right. We’re at that moment. That’s why there’s so much urgency right now.
LAWRENCE LESSIG: But the other part about being at this moment is that it’s produced a government that cannot function, right? Francis Fukuyama talks about the vetocracy we now have, where–
BILL MOYERS: The what?
LAWRENCE LESSIG: Vetocracy. Veto-ocracy.
BILL MOYERS: He’s a scholar at Stanford, right?
LAWRENCE LESSIG: And the point is, because in large part of this enormous influence of money, it’s trivially simple for a small fraction of that money to block any change, whether it’s change on the right or change on the left. So we’ve built this system that is perfectly in power. But it now can’t govern. It won’t govern when it’s a Republican president, it won’t govern when it’s a Democratic president. And that’s building the incredible sense that we need to do something to change it.
ZEPHYR TEACHOUT: And it’s vetoing on so many different levels. I mean, what I see is the way in which this concentration of political power is happening at the same time as there’s a concentration of economic power. So, this extraordinary entrepreneurial tradition we have in this country is actually getting quashed.
We have pretty steep decline of the number of entrepreneurs in the last 25 years. But we have that tradition still. And if we can tap into that and instead of people running away from politics, engaging directly in electoral politics, engaging directly in the kind of activism we need we’re not so far away from the best parts of our tradition that we just should give the game up.
BILL MOYERS: We’ll continue this conversation online. Larry Lessig, Zephyr Teachout, thank you for being with me.
ZEPHYR TEACHOUT: Thank you.
LAWRENCE LESSIG: Thank you.
BILL MOYERS: At our website BillMoyers.com, we continue our conversation with Lawrence Lessig and Zephyr Teachout, and we remember army veteran Tomas Young, who died this week at the age of 34. Tomas was severely wounded in Iraq ten years ago, and came back paralyzed. In 2008, we aired excerpts from “Body of War,” a documentary about Tomas Young, and we spoke with its producers, Phil Donahue and Ellen Spiro. That’s all at BillMoyers.com. I’ll see you there, and I’ll see you here, next time.
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Tabacco: Now that ‘Moyers & Company’ has been cancelled on Public TV, we will miss these excellent guests.
Moyers maintains his Blog, but the guts of his show, the Guests, are no more. CAPITALISM WINS AGAIN! And once again WE THE PEOPLE LOSE!
We now return to your previously recorded Reality Show!
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Tabacco is not a blogger, who thinks; I am a Thinker, who blogs. Speaking Truth to Power!
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