Tag Archives: Buckley v Valeo

Money Control of Politics: The Broken American Promise and How to Fix It

Just a quick blog today to mention an event in Morristown, NJ on Thursday evening of this week. These speakers are excellent and will take you to the heart of the money in politics question. I strongly recommend making this event. New Jersey Get Money Out groups will have people there as well.  Don’t miss it.

Details and Registration here.  NJPPN Money Control Program – or check out the details below:

CthenK
Thursday, April 28, 2016

7:30pm – 9:30pm

CONVENT OF SAINT ELIZABETH

2 Convent Rd *
Morristown, NJ 07960

 

The Citizens United decision has led to an unprecedented influx of money in our elections, causing a shift of political power away from ordinary citizens and toward the large money donors. Witnessing growing governmental dysfunction and the non-responsiveness of elected officials, too many Americans no longer trust the political process. Our democratic system includes powerful mechanisms for repair, but fixing the broken American promise will require concerted citizen action.

Speakers:

 

Timothy K. Kuhner is associate professor of law at Georgia State University and author of Capitalism v. Democracy: Money in Politics and the Free Market Constitution. He will discuss how the Supreme Court went wrong in applying a market-based analysis to the political sphere of our Constitution, and how this has caused the effective transformation of our form of government from a democracy to a plutocracy.

Jeffrey D. Clements is president of American Promise, co-founder of Free Speech for People and author of Corporations are Not People: Reclaiming Democracy from Big Money and Global Corporations. He will speak to how the political transformation has resulted in major legislative changes that benefit special interests rather than the public interest, and how this can be remedied by passage of the 28th amendment and other citizen action.

SEATING IS LIMITED

 

PRE-REGISTER TODAY at www.njppn.org or info@njppn.org

* Directions from Rt. 124/Madison Ave: turn off Madison Ave onto Convent Rd, cross tracks, make first right at guard station and park in front of large building w/portico.

 

North Jersey Public Policy Network is a non-partisan, 501c3 organization committed to providing authoritative information on key public policy issues to its network and to the public.

McCutcheon is more of the same, and that’s a bad thing

Short version: Watch the video.

Happening today, October 8th 2013, the Supreme Court takes up the case of McCutcheon v FEC. If you hear anything about this in the broader media (mainstream or otherwise), it will probably make an ambiguous comparison the Citizens United v FEC case. Both Citizens United and McCutcheon attack components of the current campaign finance law of the land, known as the McCain-Feingold Bi-partisan Campaign Reform Act (BCRA) of 2002. Back in 2010, Citizens United gutted some aspects of the BCRA, mainly those things having to do with ‘independent’ organizations spending money to influence elections.

In Buckley v Valeo 1976, the SCOTUS determined that politicians could spend whatever amount of money they wished to espouse their views.  This holding was a key component of the argument in Citizens United, that independent political groups should not econounter limits on either spending or collecting funds.  But Buckley v Valeo also found that giving money to a politician, even to help with the costs of campaigning, was very much like bribing him or her.  The larger the donation, the more logically this conclusion might be drawn. It is worth noting here that the courts have held in numerous decisions that the appearance of corruption is just as damaging as corruption itself. So in essence, the SCOTUS affirmed the authority of Congress to set the maximum donation levels. Per person, per year, the maximum donation is $2,600 (per 2-yr election cycle of Congress people) (double this number for married couples). They can also give to various political party committees, who can then route the (soft) money to each politician.

Finally the Congress sets an ‘aggregate’ per person (per donor) maximum. Each individual can donate a combined total of $123,000 to all of the politicians and parties they support. McCutcheon argues that if the amount he can donate to any one politician is limited, then the matter is settled and there can be no appearance of a bribe, regardless of how many politicians he supports. The obvious counter-argument is that McCutcheon wants the aggregate limit struck down simply so that he can corrupt a wider pool of players. Why own just one politician or a few, when you can own the whole Congress. If the plaintiffs in the McCutcheon case win, the wealthiest Americans could spend $3.6 million per election to shape America’s laws.

One of the most disappointing aspects of this case is that Republican National Committee has decided to openly flaunt its predilection for money-based politics and is named as a co-plaintiff in this new case along with McCutcheon. Thus the RNC stands in direct opposition to what Republican voters in numerous polls have said they believe on the topic of money in politics – that it is wrong and leads to cronyism.

But in fact, there have always been ‘money-is-good’ Republican politicians. Tom Delay was open about his belief that the wealthy should control the game. In Delay’s view, those who could pay to play were inherently worthy of his time. To the victor (in the private sector) rightly go the spoils. To Delay’s credit he did also believe that such a system should be transparent. Alas, his subsequent actions in that area did not demonstrate a real commitment to the ideal.

Then there’s Mitch McConnell, who in 2003 was among the first to argue against the constitutionality of the BCRA. McConnell’s case had no major impact on the enforceability of the act, but subsequently Citizens United did. In Citizens United, the SCOTUS attacked any effort of the BCRA to control the spending side of campaigns. Since the Citizens United case, McConnell has been one of the nation’s most outspoken supporters of the decision, pointing out that for-profit corporations have seemed well-behaved under the new rules. But as we all can see, campaign financing has expanded enormously and a handful of wealthy people have at times been able to direct the political discourse. Today, McConnell is again on the scene with McCutcheon. This time we’re not talking about independent campaign expenditures. Now we’re talking about handing money over to politicians. This article offers a clear explanation:
http://thehill.com/blogs/congress-blog/politics/323503-putting-our-elections-in-the-hands-of-a-few
Note that McConnell sees McCutcheon as an opportunity to convince the SCOTUS to look beyond the plaintiff’s arguments on aggregate limits and question the very foundation of campaign integrity, i.e. that campaign donations look like corruption and therefore can be treated differently than expenditures. In his view – it’s all protected by the free speech clause in the First Amendment. McConnell’s odds are slim by most accounts, but understand that he has filed an Amicus Brief and HAS BEEN INVITED to the hearings to argue his case in full. If he were to succeed, virtually every campaign finance law in the country would fall. Inequality of financial success in the private sector would translate directly to political and therefore in time legal inequality.

Alas, even if McConnell’s more extreme argument is ignored now, it may still win eventually. The court can hear his argument, give it some life, but then not really decide on his case either way. The first step in an incremental attack on campaign finance regulation is to end the aggregate limits on donors such as Mr. McCutcheon. From that precedent, new cases can gain a foothold. It’s not as though such plaintiffs will ever lack for the financial resources to argue such cases.

 

Buckey v Valeo
http://en.wikipedia.org/wiki/Buckley_v._Valeo

Citizen United v FEC
http://en.wikipedia.org/wiki/Citizens_United_v._Federal_Election_Commission

Campaign finance in the United States
http://en.wikipedia.org/wiki/Campaign_finance_in_the_United_States
Jeffrey Toobin writing for the New Yorker
On Citizens United
http://www.newyorker.com/reporting/2012/05/21/120521fa_fact_toobin?currentPage=all

On McCutcheon
http://www.newyorker.com/online/blogs/comment/2013/07/supreme-court-another-citizens-united-but-worse.html

Road to victory – Statement to the Committee

Statement to the Committee

NJOCU’s Mark Doenges spoke and answered questions before the New Jersey State Senate’s State Government, Wagering, Tourism & Historic Preservation Committee in June of 2012.  The following was his prepared statement.

Hello, honorable state legislators and committee members.  I’ve been asked by the people who support Senator Van Drew’s bill before you today to offer some of my thoughts on this issue.

Loudness.  If I were to speak to the committee today at 140 decibels, it would drown out every other voice in the room.  No one could hear anything but me.  I want you to understand that those of us who see problems stemming from the Citizens United decision and the role of money in politics, do not want to silence any views or curtail the freedom of speech.  We don’t come here today with specific legal language for US Constitution, nor do we think that every idea in the Supreme Court’s decision is without merit.  Certainly, the realities of campaign laws and reforms are complex.

But Loudness is not a right.  If I spoke at 140 decibels, I would not only silence everyone else in this room, I would deafen them.  Permanently.  Forget about telling me to be civil, because I wouldn’t hear you either.  If I were in your neighborhood, or on a street corner, or in the halls of Congress, I would not merely be shushed, I would be arrested.   And the laws of the land would uphold that arrest.

People throughout America can tell that money is yelling.  My suspicion is that even the sliver of people who don’t fully understand or admit it yet, still know it’s true.  Americans aren’t asking for certain ideas to be censored or for certain people or modes of communication to be limited.  We are simply saying that we all ~ we the people ~ have a right to free speech.  And our rights are being trammeled.

We also fundamentally disagree with the notion that corporations are people.  Yes, they have shareholders.  But they also have management, employees and customers.  So who then is this person? Corporations in fact are artificial entities chartered, as state legislators would understand very well, by State statutes.  The word corporation does not appear in the U.S. Constitution anywhere.

Having said this, I want to make clear that this bill says nothing ill of corporations or of their role in society.  This bill is certainly not anti-business.  Indeed it is pro-business.  Small business owners are right there among the people in this country who are saddened to see money treated as speech.  They may already be competing with larger, louder companies in the marketplace.  Now they find they are expected to compete in politics? That is not their mission.  Small business owners argue that money in politics is the foundation of cronyism, and that small businesses are likely losers.  When polled, two thirds of small business owners stood against the Citizens United decision and nearly 9 out of 10 viewed the role of money in politics negatively.  The last I looked, 70 percent of America’s jobs were in small businesses.  It is the engine that underpins our economy.

Loudness.  It is not a right.  In commerce it may be the spoils of victory, but in a democracy we want to be able hear what is being said.  We want the right of free speech to endure for ALL.  The simple, inescapable truth is that right now, Americans are going deaf.  They are losing faith in the institutions of their governance.  They’re losing faith in our elections.  They are losing faith in our future.  But understand that people have not yet lost their voice.  We are here today to be heard.  Join us and a growing national movement in taking this issue to the US Congress for remedy.  These are critical times in our country’s history and we cannot afford a broken democracy.  This is NOT a backburner issue upon which we should hem and haw.  This is not a partisan issue with an ‘us’ and a ‘them.’ This is about the voice of the people.  I ask you to join it.

Thank you.

Anniversary of Citizens United Decision ~ Activities in New Jersey

New Jersey for the Overturn of Citizens United is joining other groups around the country in marking the third anniversary of the misguided and unfortunate Supreme Court decision known as Citizens United v F.E.C..

When:        Thursday, 1/17/2013, 10 a.m.     (! LAUNCH EVENT !)

Where:       NJ State House, 125 W State St, Trenton, NJ, Room 109

What:        A press conference at the State House in Trenton detailing the national, state and local fight to overturn Citizens United and get money out of politics.

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When:        Thursday, 1/17/2013, 7:30 p.m.

Where:       Bergen Community College, Pitkin Building, Room A-113, Paramus, NJ

What:        A talk on Campaign Finance and Freedom of Speech (followed by Q&A)

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When:        Saturday, 1/19/2013, 12:00 noon

Where:       Essex County Court House in Newark, NJ

What:        a rally-and-march in downtown Newark with the People’s Organization for Progress

See below for details on each event.

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This anniversary is a chance for our coalition to show its strength and to highlight the great success we’ve had in the past half-year, for the whole state to see. It’s very important for as many of us to come to these events as possible, and to bring as much energy and excitement as we can.

Thursday, 1/17, at 10 a.m. – Our Launch Event.  Don’t miss this.

NJOCU Press Conference in Room 109, New Jersey Statehouse, Trenton, NJ

NJOCU is hosting this conference to remind people of the Citizens United decision from three years ago (as well as subsequent decisions and developments) and to talk about our work and our success in New Jersey in both raising public awareness and passing resolutions at the state AND local levels to counter the CU decision.  .

At time of this writing Assemblywoman Linda Stender (one of the primary sponsors of AR86) and Liz Lempert, the mayor of Princeton, have confirmed their attendance, as well as leaders and members of various NJOCU alliance groups.

State House:  http://goo.gl/maps/bs33I

We strongly encourage you to attend this event!

Come show your support for change in campaign finance.  Show your disapproval of the Citizens United decision.  Come help us GET MONEY OUT OF POLITICS!

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Thursday, 1/17/2013, 7:30 p.m.:  

A talk by Professor Roger Berkowitz of Bard College, “Why Free Speech is Corrupting Politics: Paradoxes & Problems in Campaign Finance Reform” presented by the New Jersey Public Policy Network (NJPPN) at Bergen Community College in Paramus (Pitkin Building, Room A-113).  NJOCU will make a statement about our coalition’s work during the Q&A session that will follow the presentation.

More Information:  NJPPN Events

Bergen County College:  http://goo.gl/maps/4vh1y

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Saturday, 1/19/2013, 12-noon:    (PLEASE NOTE – ADDRESS CORRECTION)

People’s Organization for Progress (POP) in honor of Martin Luther King will be rallying and then marching on the issues of peace, jobs, economic justice, and the very important bipartisan issue of getting money out of politics.  The rally meets at 12:00 noon in front of the Essex County Courthouse in Newark, at the Lincoln Monument (West Market Street & Springfield Avenue, Newark, New Jersey 07102).  Then at 1:00 p.m. participants will march to City Hall and back.

Lincoln Park:  http://goo.gl/maps/0Dw7e

City Hall:  http://goo.gl/maps/XRxEp

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There are at least three planned Money Out /Voters In events in north Jersey on Saturday the 19th, each marking the anniversary of Citizens United.  Just click on the name of the city to see details and sign up.  Be a part of a nationwide effort to draw attention to this root problem.

Newark

and

Plainfield 

and

Kenilworth

Or go to a flagship event in Manhattan.

The Kimmel Center at NYU, Rosenthal Pavilion

Additionally, on Friday the 18th, (for our friends in Pennsylvania) there will be a Citizens United anniversary rally in Philadelphia.  Please follow the link for details:

Citizens United 3rd Anniversary Action in Philadelphia

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To get involved in any of the above events:

Media please contact:

Peter Skopec
Program Associate, NJPIRG
143 East State Street, Suite 6
Trenton, NJ 08608
Office: (609) 394-8155 x 313
http://www.njpirg.org/staff

Welcome to our site

Some background

“Citizens United” is a 2010 US Supreme Court decision holding that significant parts of the 2002 McCain/Feingold campaign reform bill were unconstitutional.  The case is probably most famous for determining that a corporation is a ‘person’ as referenced in the First Amendment and therefore possesses the right of free speech.

The decision also doubled down on the premise that money equals free speech – an idea established in the 1976 decision, Buckley v Valero.  Looking at all the particulars given in the majority opinion for Citizens United, subsequent court decisions have begun a startling process of unraveling any and every effort of the people to make their campaigns open, fair and free.

We at NJOCU are troubled by this in the extreme.  We see that the influence of money on the election process as corruptive.  We speak not of quid-pro-quo, but of endemic corruption, that alters not just the way we elect our representatives by how they then govern – or in many cases, how they fail to govern.

New Jersey for the Overturn of Citizens United is an alliance of committed individuals and groups.  We are working to get money out of politics to whatever extent is possible.  While any member, member group or endorser may hold specific partisan views on specific political issues, the alliance is nonpartisan.  We are expanding our alliance across the political spectrum in New Jersey.  Please contact us if you or your group is interested in joining in our campaign.

Corporations are not people and money is not free speech.

WHAT are we saying specifically?

Our campaign “New Jersey for the Overturn of Citizens United” stands for two simple ideas.

Money is not free speech

And

Corporations are not people

We think that elected representatives at various levels of America’s federal, state and local governments should be able to reasonably and carefully regulate the conduct of campaigns to make them as fair and open as possible.  We do not believe that the ability to spend or collect large amounts of money should become the only pathway to “free” speech.  We further do not agree that corporations are persons (or more specifically, citizens). While various entities composed of many people may be formed in a free society, it is another matter altogether to treat the resulting group as a ‘person’ under the constitution.  Uniquely describing some groups as constitutional ‘persons’ while others groups are not, such as the SCOTUS has recently done, is profoundly wrong.  The press, we should remember, is expressly mentioned in the first amendment, and its rights are already outlined there.  We do not contend that a corporation may not be considered a part of the ‘press.’  We acknowledge that the press might need definition.

All of the above said, we do not seek here to write the language of the US Constitution.  We do not even contend that the majority decision in Citizens United and the subsequent cases mentioned on this site have been completely without merit.  Instead we contend that the findings were constrained by limited language describing very complex ideas and that the decisions did not point us toward solutions that actually work.  Actual outcomes DO matter.  We believe that earlier cases regarding campaign laws have also failed to address the problem of money in politics and to protect freedom of speech for all persons.  There is only so much that can be determined in court.  To settle this matter, there needs to be a national discourse and a drafting of an amendment by the Congress to allow, at minimum, for campaign regulation in the clear best interest of the people as people were intended by the founders in the Bill of Rights.  Groups of people, unions and incorporations of shareholders are served by serving the people.  Freedom, fairness, and a healthy continuation of democracy are at stake if we do not act.

What’s wrong with Money in Politics?

  1. Moneyed interests are often unconcerned with good government.
  2. Moneyed interests tend to make laws more complicated by inserting their specific (self-interested) demands.  Complex laws make for Bigger, less efficient government.
  3. Money interests will often encourage government to ‘pick a winner.’
  4. Moneyed interests tend to favor privatizing profits and socializing losses.
  5. Lobbyists, whose expertise is often needed in the legislative process, are now the same people most directly funding the politician’s campaign, thus comprising the objectivity of the exchange.
  6. Lobbyists gain such continued and familiar access to elected officials that policy focus is shifted away from representation of the actual constituency.
  7. Policies not related to money, but instead to issues like family values, civil rights, diversity or conservative social ideals, may be overwhelmed by political deal-making that seeks first and foremost to serve moneyed interests.
  8. Moneyed interests will support incumbent politicians just to gain access to committees or other political allies.  This distorts the actual interests of the voters, and makes voter-instigated change much more difficult.
  9. The job of collecting money is too distracting.  Not all of the players in the ‘arms race’ of campaign financing are willing participants.  Many are dragged along.  Many are rendered ineffective by the demands of constant campaigning and fundraising.  This issue goes WAY beyond a simplistic case of ‘quid pro quo.’ This is systemic corruption.
  10. Money is NOT free speech.  Money is just a volume knob on certain speech from certain political special interests.
  11. Corporate personhood, when combined with America’s treaty law, can actually result in the surrender of the sovereignty of federal, state and local governments to foreign moneyed interests.
  12. Small businesses, the engine of the real economy, find that they now need to compete not only in the marketplace but in the in political arena.  More than two-thirds of all small business owners disagree with Citizens United and even more complain that money in politics is bad for business.
  13. Money in Politics corrupts the fundamental vision of a democracy by and for the PEOPLE.

While money in politics does not always come from what we might all agree is a “moneyed interest,” it is important to understand that the distorting effects of money can be just as damaging in the hands of those with the best of intentions.  The complaint here is not that those with money are wrong.  It is the role of money itself that is wrong.  Money should not be the final authority in determining what is discussed, what is heard, what is right or wrong or implemented or ignored.

Some slightly deeper background information

“Citizens United” is a 2010 US Supreme Court decision holding that significant parts of the 2002 McCain/Feingold campaign reform bill was unconstitutional.  The case is probably most famous for determining that a corporation is a ‘person’ as defined by the First Amendment and therefore possesses the right of free speech.  Many people across America were discouraged to see this seemingly false equivalence held up as the law of the land.  Others were just as upset to see that once again the elected legislative branch of the country had been voided by the unelected judicial branch.  Still others debated the particulars of the case, and the dissenters within the court had many followers outside the court who agreed that the decision would lead to campaign abuses.

Citizen’s United has indeed led to what many believe are abuses.  Certainly the case has changed American politics in fundamental ways.  As such, the words “Citizens United” are recognizable and are even found in the name of this alliance.  But we urge you to learn more.  The problems we are addressing run deeper than any one court case.

The Citizens United decision cited a prior case to point out that campaign contributions may be limited by law, but campaign expenditures may not.  The simplest way to understand this idea is that a contribution can be seen as an effort to corrupt, while an expenditure is purely an effort to express – that is to freely speak (money = speech).  Corporations, the court said, could not be constrained from unlimited free speech.  Based on Citizens United, the DC Circuit court found in the SpeechNOW case that a person, corporation or union, may contribute unlimited amounts of money to any entity exclusively engaged in ‘independent expenditures.’  SpeechNOW is a PAC that does not contribute to candidates, but only expresses itself politically, independent of coordination with any candidate.  From this decision we have seen the emergence of the SuperPACs, bloated with money and free to spend endlessly.

Then in 2011, the court again decided against the right of an elected legislature to regulate campaigns.  The right of free speech was again the concern cited by the court.  In this case the ‘free’ speech was for well-funded candidates who might be burdened by an opponent whose ideas were being heard ‘equally’ by the voters.  Any campaign law that attempted to assure that both candidates would be heard was unfair to the better funded and therefore a violation of his free speech.

As the Citizens United case continues to evolve into the law of the land, rippling through state and local governments and campaign practices, we see more and more that we cannot expect that regulation of our elections will be constitutional or at least useful in light of the limitations.  Certainly, anyone can understand that regulating an election to actually be unfair should not be constitutional, but it is much harder to see how the current trend is in the right direction.  The ‘rights’ and ‘freedoms’ which the court has used to justify their concerns are clearly outweighed by the rights and freedoms of other parties which the court has chosen to ignore.

Some excerpts from Justice Stevens’s dissenting opinion:

“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.”

“The Framers thus took it as a given that corporations could be comprehensively regulated in the service of the public welfare.  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.”

“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.”

“We have held that speech can be regulated differentially on account of the speaker’s identity, when identity is understood in categorical or institutional terms. The Government routinely places special restrictions on the speech rights of students, prisoners, members of the Armed Forces, foreigners, and its own employees.”

“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.”