Nel's New Day

April 2, 2014

SCOTUS Puts ‘Citizens United’ on Steroids

scalia_for_saleAlthough the Hobby Lobby decision could be much more far-reaching than Citizens United, Windsor, and overturning the voting act, the case of McCutcheon v. FEC matches Hobby Lobby in impact. Through declaiming “free speech, the U.S. Supreme Court again put democracy up for sale. Its decision struck down the $123,000 two-year limit to campaign contribution limits, $48,600 to all federal candidates and $74,600 to all political committees. The aggregate limits that stopped money laundering schemes in which donors and political parties could evade the cap on donations to individual candidates has been erased.

Now people can donate the maximum per-candidate and per-party to as many sources as they want. One person can now donate $3.6 million directly to candidates and parties in a single election cycle and much more to “independent” groups like Super PACs because of Citizens United. Donated money can legally be redistributed to the races where it is likely to have the most impact.

Some of Citizens United affects:

  • The 32 top Super PAC donors who gave $9.9 million each matched the $313 million raised from small donors for both Barack Obama and Mitt Romney of under $200 from 3.7 million people.
  • Almost 60 percent of Super PAC funding came from 159 donors, and more than 93 percent of the Super PAC money came in contributions of at least $10,000 from only 3,318 people—0.0011 percent of people in the United States.
  • Shel Adelson’s $91.8 million donation is equivalent to the entire net worth of 322,000 average-earning U.S. families.

McCutcheon is worse.

The election cycle limits of $5,200 per candidate and $32,400 per party committee stand, but there is no longer any top limit. Wealthy donors no longer needs to pick and choose among campaigns: they can just fling money everywhere. Sen. John McCain (R-AZ) targeted the problem: “I predict again, there will be major scandals in campaign finance contributions that will cause reform. There will be scandal. There’s too much money washing around.”

Reince Priebus, RNC chair, is cheering. House Speaker John Boehner (R-OH) praised the Supreme Court. Justice Clarence Thomas wrote that he wanted to erase all contribution limits.

The man who won big with the SCOTUS decision is Shaun McCutcheon, owner of Coalmont Electrical Development which makes industrial electrical equipment for coal mines. Fracking, green energy, and believers in the dangers of climate change are hurting his business. Despite the fact that 98 percent of climate scientists understand the dangers of fossil fuels in the changing planet, McCutcheon passed along words from deniers such as S. Fred Singer as his personal beliefs:

“The good news is that science evidence [sic] has made it quite clear that the human contribution to a possible global warming is minor; in fact it cannot even be identified in the data record.”

With more and more evidence against Singer’s position, McCutcheon needs to bribe more people to legislate in his favor, and SCOTUS just gave that ability to him. Each oil, coal, and gas industry executive can spend $312,455,200 in this election to buy lawmakers. That’s a 2,600 percent increase in their legal donations. And it’s a pittance to them. The $150 million that Shel Adelson and his wife donated to GOP PACs last year is the equivalent of $280 to a person worth $50,000. Adelson makes $32 million, more than twice the $150 million, each day for the entire year. 

In 1976, the Supreme Court ruled that the legal basis for upholding campaign finance regulations is to prevent corruption. The Roberts Court takes the position that there are no strings attached to the huge sums of money that wealthy people pay for lawmakers. The majority’s definition of the corrupting “quid pro quo” exists only if a specific result is purchased from a specific legislator—according to five members of the Supreme Court. As in Citizens United, the majority of the court fails to consider “the possibility that an individual who spends large sums may garner ‘influence over or access to’ elected officials or political parties. Once again, Roberts tells Congress that if they want good laws, then they should pass them—knowing full well that the GOP will never try to pass any controls on campaign contributions until it works against them.

J. Gerald Hebert, the executive director of the Campaign Legal Center and one of the nation’s foremost voting rights and campaign finance attorneys, described the ruling as arrogant:

 “The Court today abandoned any pretense of respecting Supreme Court precedent or Congressional expertise on matters of campaign finance when it struck down longstanding federal limits on aggregate contributions to candidates, parties and PACs. Once again, the Roberts Court exhibits its complete ignorance of political realities, or worse, chose to ignore those realities, in striking down laws written by Congress, which is intimately aware of the political corruption that will likely ensue in the wake of this decision.”

robertsAs Ari Berman wrote:

“In the past four years, under the leadership of Chief Justice John Roberts, the Supreme Court has made it far easier to buy an election and far harder to vote in one.

“The Court’s conservative majority believes that the First Amendment gives wealthy donors and powerful corporations the carte blanche right to buy an election but that the Fifteenth Amendment does not give Americans the right to vote free of racial discrimination.

“These are not unrelated issues – the same people, like the Koch brothers, who favor unlimited secret money in US elections – are the ones funding the effort to make it harder for people to vote. The net effect is an attempt to concentrate the power of the top 1 percent in the political process and to drown out the voices and votes of everyone else. […]

“A country that expands the rights of the powerful to dominate the political process but does not protect fundamental rights for all citizens doesn’t sound much like a functioning democracy to me.”

Roberts, whose court allowed all states to keep people from voting, will probably never appreciate the irony of his introduction to McCutcheon:  “[t]here is no right more basic in our democracy than the right to participate in electing our political leaders.” 

Media contributes to the dumbing down of people in the United States. Today’s Huffington Post shows how far downhill it has gone since it was sold. The “business” section starts with Starbucks resuming its selling sweetened bread by the slice. This announcement was before GM’s CEO, Mary Barra calling the failure of her company to recall defective cars that killed 303 people in the last 12 years as  “very disturbing.” Following that was the vital information from WSJ that Southwest Airlines is beginning to look just like all the others.

An article on two men saving puppies from a flood is followed by gratuitous celebrity reporting, including “Britney Spears news.” Under “Twitterati” is Justin Bieber’s sage comment, “Why does everyone look like my mom on twitter. lol.” Finish with “how long would you survive the zombie apocalypse,” and you have a diet of reports that can well compete for the most inane Internet entries for the day.

The people who claim that money has no benefit in rulings should consider this news. Wealthy Robert H. Richards IV, who lives off his trust fund, was convicted of raping his three-year-old daughter. After his conviction in 2009, his wife filed another lawsuit charging that he penetrated his daughter with his fingers while masturbating and then molested his infant son. Yet Judge Jan Jurden ruled that the great-grandson of du Pont family patriarch Irenee du Pont would have only probation because he “will not fare well” in prison. As Delaware Public Defender Brendan J. O’Neill said, it is “extremely rare” for someone to fare well in prison. A defense lawyer agreed with the public defender. Michael W. Modica said, “I’ve never heard of the judge saying in general that he is not going to do well. Who thrives in jail?”

This is the kind of money that bought five justices on the U.S. Supreme Court. Today is National Walking Day, the day that the U.S. Supreme Court walked away from the U.S. Constitution—again.

October 22, 2013

SCOTUS May Put Democracy Up for Sale

More than $100 million—that’s how much the ten highest-paid CEOs in the U.S. each received last year. Two of them each got at least $1 billion. Together these ten men collectively took home over $4.7 billion. A poll shows that 2,259 U.S. CEOs saw an average income rise of 8.47 percent last year, although that was less than the two previous years.

Of the top 10 earners in 2012 all received the majority of their compensation for the year from share schemes. One executive, George Maffei, received $254.8 million as CEO of Liberty Media Corporation and another $136.4 million as CEO of sister company Liberty Interactive. He also profited more than $250 million on the exercise of 3.1 million options at Liberty Media Corporation in 2012. As head of Liberty Interactive, Maffei exercised an additional 12.3 million options for a profit of more than $132 million.

For the rest of us, the median household income was $51,017 in 2012, unchanged from the prior year. Wages fell about 9 percent from an inflation-adjusted peak of $56,080 in 1999. Last year’s average pay package of a Standard & Poor 500 CEO was $13.7 million.

These ten CEOS are part of the 500 people who can buy democracy from the United States if SCOTUS strikes down almost all remaining limits on donations to political campaigns. Two weeks ago, at the height of the government shutdown, the U.S. Supreme Court heard McCutcheon v. Federal Election Commission. McCutcheon wants to eliminate aggregate limits on individual contributions, claiming that these violate free speech.

Burt Neuborne, law professor and founding legal director of the Brennan Center for Justice at New York University Law School, said, “If these advocate limitations go down, 500 people will control American democracy. It would be ‘government for the 500 people,’ not for anybody else.” Both Chief Justice John Roberts and Scalia appear ready to hand over the country to these 500 people, eradicating the past 225 years of democracy in the nation.

Current law, thanks to Citizens United, has uncontrolled expenditures in campaigns, but contributions are limited through the amount given to any particular candidate or committee and through the total that can be given to everyone. At this time, the limit in an election cycle is $5,200 an individual candidate, $32,400 to a national political party, $10,000 to the state party, and $5,000 to as many PACs as the donor wants. The aggregate comes to about $123,200, which McCutcheon says is too small.

Without the aggregate limit, one person could donate up to $3.6 million, an amount that Justice Antonin Scalia says isn’t much money. He might be right when if he’s talking about someone like George Maffei because that sum is only 0.0035 percent of his annual income. But for the rest of people, it’s an annual salary for almost 70 people combined. A big difference in power.

Justice Ruth Bader Ginsburg pointed out that aggregate limits promotes “democratic participation” that keeps the “super-affluent as the speakers that will control the elections.” Scalia used his snarky attitude to respond, “I assume that a law that only—only prohibits the speech of 2 percent of the country is okay.” Better to “control the speech” of 2 percent than 98 percent.

When Roberts was questioned as a nominee for SCOTUS justice, he said that he didn’t believe in overturning precedents. His history since being approved shows a different perspective. Ruling in favor of McCutcheon would be another rejection of an earlier Supreme Court decision. The ruling of Buckley v. Valeo, a 1976 case, decided that limits on contributions “entail only a marginal restriction” on speech because contributions to political debate “involves speech by someone other than the contributor.”

An amicus brief from Reps. Chris Van Hollen (D-MD) and David Price (D-NC) argues that allowing larger individual contributions would create the reality or appearance of corruption, and the government has a compelling interest in preventing this corruption. “Very large political contributions create both the risk that officeholders and potential officeholders will be tempted to forsake their public duties and the opportunity for corrupt bargains.”

Seven Supreme Court justices, including Justice Anthony Kennedy who wrote the Citizens United decision, voted to uphold the federal ban on soliciting large contributions in McConnell v. Federal Election Commission: “Very large contributions for national parties presented corruption concerns regardless of how those contributions were ultimately used.”

Van Hollen and Price concluded:

“Permitting the parties and their candidates to solicit and receive contributions of millions of dollars from individual donors would again foster the appearance that our officeholders and our government are for sale.”

A February 2013 YouGov poll found 44 percent of Americans think the 2012 election cycle’s aggregate limit of $46,200—raised to $48,600 this cycle—to federal candidates was already too high. Just 12 percent think there should be no limit. A 2012 Brennan Center for Justice survey found that 69 percent of respondents disapproved of the Citizens United decision, making it one of the most unpopular Supreme Court decisions in history. A poll also shows that 55 percent of people in the United States reject the concept that money is equivalent to speech. Citizens United, giving the wealthy the right to excessive campaign donations, was a catalyst in dropping public confidence in the Supreme Court to 28 percent.

Justice Stephen Breyer wants to dodge making a decision. His suggestion, not well taken, was to send the case back to the lower court to create an actual factual record.

Justice Elena Kagan came up with the best idea, rolling back the court’s Citizens United ruling: “I suppose that if this court is having second thoughts about its rulings that independent expenditures are not corrupting, we could change that part of the law.”

In an op-ed piece, Dana Milbank addressed the irony of the Supreme Court staying open and hearing a case that will most likely continue the high level of dysfunction in Congress.

“The court has failed to undo the partisan redistricting that has left the House of Representatives hopelessly polarized. It has furthered Americans’ cynicism toward politics with nakedly political rulings such as Bush v. Gore. Above all, it has created a campaign finance system that is directly responsible for the rise of uncompromising leaders on both sides of the Capitol.”

Scalia, with his “$3.6 million isn’t much money” statement, stays in his bubble through ultra-conservative media sources such as The Wall Street Journal, The Washington Times, and Bill Bennett’s talk radio. He objects to The New York Times as “often nasty.” Those sources don’t point out that most GOP congressional seats are safe because of the SCOTUS-sanctioned gerrymandering.

As Milbank wrote, “A few billionaires have purchased a Congress full of unbending extremists, and the Supreme Court made it all legal.”

The day of the arguments, President Obama said, “There aren’t a lot of functioning democracies around the world that work this way, where you can basically have millionaires and billionaires bankrolling whoever they want, however they want, in some cases undisclosed.” The last time he objected to a SCOTUS ruling on campaign finances, the conservative justices threatened to boycott the president’s State of the Union speech.

A Supreme Court ruling that eliminates federal aggregate donations would likely create havoc in the states currently capping overall contributions. Nine states–Arizona, Connecticut, Maine, Maryland, Massachusetts, New York, Rhode Island, Wisconsin, and Wyoming–had aggregate limits in place for the last two election cycles, but Arizona eliminated the state’s limits. The vast majority, 81 percent, of the 2010 donors reaching state aggregate limits did so in Wisconsin. A donor is fighting in court to overturn the limits, and state legislators are working to double the aggregate limit.

During the argument, the justices appeared to line up on conservative and progressive camps with Roberts toward the middle but leaning toward his usual conservative bent. I doubt if he learned his lesson from Citizens United. 

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