In the News
The Hill: Bringing political parties up to speed
By Luke Wachob
Our democracy is being flooded – with bad punditry. When news broke before the holidays that Congressional leaders had struck a deal to increase the amount of money political parties can raise from donors for specific purposes, a tidal wave of cynical and short-sighted commentary crashed down upon an unsuspecting nation.
Longtime advocate of restricting political speech, Fred Wertheimer, called it “the most destructive and corrupting campaign finance provisions ever enacted.” On The Daily Show, John Stewart sarcastically quipped, “Obviously, I shouldn’t insinuate that raising the personal donor limit to $324,000 is tantamount to pay back for increasing the banks’ profit.”
These comments are typical of the debate over “money in politics,” which often feels like a three hour drive around a cul-de-sac. On one side, critics rail that political spending corrupts and must be regulated in all manner of ways. On the other, defenders of free speech insist that effective political organizing costs money and cite the First Amendment rights of freedom of speech, assembly, and petition. It goes back and forth with no one giving an inch until everyone is blue in the face and goes home.
This is especially frustrating because even a casual study of money in politics quickly reveals that the subject is rife with nuance. Not all spending is the same, and neither are all spenders. In fact, allowing political parties to raise more money will counter – not exacerbate – the trends that have followed since the Supreme Court’s Citizens United decision.
Concurring Opinions: Citizens United: it was 5 years ago today — 13 First Amendment lawyers & scholars offer differing views
By Ronald K.L. Collins
Allen Dickerson: “Citizens United has become a symbol onto which politicians and commentators project their own hopes, agendas, and insecurities. But cutting through the rhetoric, the case asked a simple question: on what principled basis could the government ban a nonprofit’s documentary while permitting corporate newspaper endorsements? The Court, correctly, said ‘none.’ Nevertheless, legislatures and regulators continue to draw distinctions between different types of speech, and different types of speakers, and the result is a level of bureaucratic complexity average Americans cannot hope to navigate. Five years after Citizens United showed us our error, burdened by a national debate that yields more heat than light, we continue to avoid the difficult task of reforming that troubling approach to political engagement.”
Joel Gora: “The Supreme Court’s Citizens Uniteddecision was a landmark of political freedom. By striking down government bans on political speech by labor unions, corporations and non-profit organizations, the Court reaffirmed and applied core First Amendment principles. These include the concepts that protecting political speech against government censorship is at the core of the First Amendment’s mission, that the government cannot be empowered to decide which people or groups can speak about government and politics, what they can say, or how much they can say, and that democracy requires as much information as possible from diverse and antagonistic sources.”
MSNBC: ‘Citizens United’ fallout ‘more dangerous’ than expected
For conservatives, this is vindication of their support for Citizens United. “Corporate money is not swamping the system, and elections are more competitive,” Brad Smith, the founder of the Center for Competitive Politics said earlier this month at a conference of the American Association of Law Schools.
WBUR: The Truth About Citizens United
That right was confirmed by the Supreme Court in a landmark 1957 case, involving the NAACP’s right to not to disclose its members to the state of Alabama. Of course, groups of super-rich individuals formed to support or oppose candidates are not comparable to the NAACP, the ACLU or the NRA. But it is not the Court’s fault that neither Congress nor the IRS has addressed the problem of partisan electoral groups benefiting from rules intended to protect the members of nonpartisan, citizen advocacy organizations.
The belief that Citizens United approved donor secrecy is only one of many misconceptions about it. The campaign finance regime is extremely complicated; its technicalities are beyond the ken of almost everyone, except for a relative handful of election lawyers. But the billions of dollars spent on elections, the time and energy spent by candidates in search of funding, is extremely disturbing to many Americans. They’re unfamiliar with campaign finance cases and rules, not surprisingly, but they’ve heard of Citizens United and rely on overgeneralized, misleading accounts of it in the press. It has become a symbol and a scapegoat for income inequality and the spectacle of money — especially dark money — in politics.
To solve a problem you have to understand it. Citizens United is not the root of all campaign finance evil, and repealing or reversing is not the simple solution many campaign finance reformers imagine. So here are a few true and false questions to commemorate the fifth anniversary of this much maligned decision:
USA Today: ‘Citizens United’ misunderstood
By Ilya Shapiro
And so, if you’re concerned about the money spent on elections — though Americans spend more on Halloween — the problem isn’t with big corporate players. Exxon, Halliburton and all these “evil” companies (or even “good” ones) aren’t suddenly dominating the conversation. They spend little on political ads because they don’t want to alienate half of their customers.
On the other hand, smaller players now get to speak freely: groups such as the National Federation of Independent Business, Sierra Club, the American Civil Liberties Union and the National Rifle Association. Even if we accept “leveling the playing field” as a proper basis for regulation, the freeing of associational speech achieves that goal.
People don’t lose rights when they get together, be it in unions, advocacy groups, private clubs, for-profit enterprises or any other way.
The Federalist: The Government’s War on Speech: Citizens United at Five
By Paul Jossey
Initially catalyzed with presidential rhetoric, attacks permeated throughout the federal government, from Washington’s most powerful institutions to nondescript bureaucratic backwaters. The effort—concerted if not centrally coordinated—has been at times presumptively unconstitutional and blatantly illegal. Most disturbingly, even after being “caught,” official reaction has been mendacity, hypocrisy, and proposals for even more control of citizen speech.
At its core, Citizens United was about a movie—“Hillary the Movie.” In 2008, Citizens United, a 501(c)(4) nonprofit corporation, hoped its unflattering documentary would sway public opinion against presidential candidate Hillary Clinton. 501(c)4’s, classified as ‘social welfare organizations,’ have a long history of political advocacy and include groups like the National Rifle Association and AARP. But because of time windows and other archaic campaign finance law, airing “Hillary the Movie” before the 2008 election would have subjected the corporation to criminal penalties. Citizens United sued on First Amendment grounds.
Election Law Blog: President Obama Issues False Statement on Citizens United
I’m no fan of Citizens United. But the part about “foreign corporations” is clearly wrong. The President first made that statement at the State of the Union 5 years ago, with the Justices in attendance. Justice Alito mouthed “not true.” And it was not true. Citizens United put the foreign money issue to the side. Since then, the Court summarily affirmed the Bluman v. FEC case, upholding the constitutionality of the foreign spending ban (including bans on foreign corporations). Now it may be that foreign money is getting into our elections, but that’s not because the Supreme Court called it kosher.
Election Law Blog: More on Foreign Money, Citizens United, and President Obama’s Statement
In fact, five years ago, in Citizens United the Court expressly refused to rule on whether a ban on foreign money in elections (individual, corporate, or otherwise) could be banned in elections. It left the foreign spending ban in place. So Citizens United did not allow “foreign corporations” to “spend unlimited amounts of money to influence our elections.”
A few years later, in the Bluman case, the Supreme Court affirmed without opinion a lower court ruling upholding the ban on foreign money (including foreign corporate money) in our elections.
So the Supreme Court in Bluman did not allow “foreign corporations” to “spend unlimited amounts of money to influence our elections.”
Wyoming Liberty: Will the Real Citizens United Please Step Forward?
By Benjamin Barr
Since the Court issued its opinion in Citizens United, it remains one of its most controversial rulings. Even five years later, reform groups clamor to, amazingly, amend the First Amendment, enhance disclosure of political spending, and otherwise “correct” Citizens United. Even moderate Republicans are getting chummy with pre-Citizen United ideas of regulating any speech that moves. This all happens, in large part, because of a deeply rooted confusion about what Citizens United means.
Citizens United was first about whether the federal government could ban an obscure pay-per-view film on cable (“Hillary the Movie”). Congress made “electioneering communications,” through McCain-Feingold, illegal for corporations and unions to produce. That’s a direct ban—unless you’re certain members of the FEC who, at the time, believed it was a reasonable “regulation” of speech.
This is the same case when, during oral argument, the Court asked the Deputy Solicitor General whether the federal government could ban books. Without flinching, the government affirmed it had the power to ban books that ran afoul of its rules. This is the real Citizens United.
Wall Street Journal: Obama Snubs Calls for Campaign Finance Curbs
By Byron Tau
The Obama administration had been under mounting pressure from groups such as Democracy 21, the Campaign Legal Center, Public Citizen and others to use its executive authority to force more corporate political disclosure or give the Internal Revenue Service and the Federal Election Commission more enforcement authority, among other proposals.
Adding to their urgency was the fact that this year’s State of the Union fell one day before the five-year anniversary of the decision in the Citizens United v. Federal Election Commission case — a landmark Supreme Court ruling that enabled the rise of political nonprofits and super PACs, which can spend unlimited sums of money on politics and have replaced many of the core functions of political parties.
The White House had held a meeting with those groups on campaign finance issues this month and floated the possibility of making a prominent mention in the State of the Union address as well as a potential executive order or a new policy proposal, according to multiple sources familiar with the meeting.
NY Times: One by One, Protesters Interrupt Supreme Court
By Adam Liptak
WASHINGTON — A Supreme Court argument Wednesday about housing discrimination started with a disruption and included a surprise.
The disruption came shortly after the justices took their seats on the bench at 10 a.m., when a woman rose in the back of the courtroom and yelled, “Overturn Citizens United.” She was hustled from the room. It was the fifth anniversary of the Citizens United ruling, which allowed unlimited political spending by corporations and unions.
Chief Justice John G. Roberts Jr. seemed to take the protest in stride. “Our second order of business this morning …” he started to say, but he was interrupted as a second protester rose, followed, one by one, by five more.
Candidates, Politicians, Campaigns, and Parties
Wall Street Journal: ‘A Better Politics’ Or Not
President Obama ended his State of the Union on Tuesday with an appeal for “a better politics” in which “we debate without demonizing each other.” The very next day our magnanimous chief executive took his own advice and—er, not exactly. Mr. Obama assailed the Supreme Court with unusually sharp-edged language only hours after activists had disrupted its proceedings to protest a decision from five years ago.
Wednesday morning’s session was interrupted as seven hooligans stood up in serial fashion and yelled about Citizens United, the 2010 campaign-finance ruling that restored the First Amendment rights of businesses and unions. The demonstrators and an eighth conspirator were arrested after being dragged out of court.
“Oh, please,” Chief Justice John Roberts growled amid the commotion. That was also our reaction to Mr. Obama’s statement only hours later that sided with the protestors, if not explicitly their protests. The White House didn’t return a call for comment.
New York –– NY Times: Sheldon Silver, New York Assembly Speaker, Faces Arrest on Corruption Charges
By William K. Rashbaum, Thomas Kaplan and Susanne Craig
Details of the specific charges to be brought against Mr. Silver were unclear on Wednesday night, but one of the people with knowledge of the matter said they stemmed from payments that Mr. Silver received from a small law firm that specializes in seeking reductions of New York City real estate taxes. Mr. Silver failed to list the payments from the firm, Goldberg & Iryami, on his annual financial disclosure filings, as required.
Wisconsin –– Wisconsin Reporter: O’Keefe takes his case against John Doe to U.S. Supreme Court
By MD Kittle
MADISON, Wis. — As promised, Eric O’Keefe and the Wisconsin Club for Growth are taking their First Amendment fight with prosecutors of a secret John Doe investigation to the U.S. Supreme Court.
O’Keefe on Wednesday filed a petition seeking review of a lower court’s decision, calling the ruling “contorted” in its erroneous interpretation of Supreme Court opinions on federal court jurisdiction over state abuses of federal constitutional rights — a decision that “sows confusion” about rightful court intervention.