Liberals (including President Obama) think the Supreme Court was wrong in Citizens United to say that corporations have free speech rights, but newspaper and book publishers are corporations. For some reason, the NYT is acting like it took a year to notice this hitch (which has been perfectly evident since the Citizens United litgation began in the lower courts). I guess the excuse for pretending not to see what was obvious is that it has been hoping to rely on the notion that some corporations have more rights than others. This new piece — a column by Adam Liptak — begins to concede that is an unworkable argument.
“There is no precedent supporting laws that attempt to distinguish between corporations which are deemed to be exempt as media corporations and those which are not,” Justice Kennedy wrote in Citizens United....
Eugene Volokh, a law professor at the University of California, Los Angeles, has reviewed the historical evidence. The bottom line, he said, is this: “If ordinary business corporations lack First Amendment rights, so do those business corporations that we call media corporations.”
But Liptak's column peters out with a quote from a lawrpof who calls it a "difficult question" and...
There good arguments both ways about whether corporations ought to be covered by the First Amendment. But it is harder to say that some corporations have First Amendment rights and others do not.
Yes, yes, it's obvious what the answer needs to be, and yet the debate must go on and on because it's so important to restrict the speech of people who organize themselves into corporations. Some of them. The bad guys. Not the good guys, like the ones who take a year to getting around to half-conceding the crushingly obvious.
BP and its employees have given more than $3.5 million to federal candidates over the past 20 years, with the largest chunk of their money going to Obama, according to the Center for Responsive Politics. Donations come from a mix of employees and the company’s political action committees — $2.89 million flowed to campaigns from BP-related PACs and about $638,000 came from individuals.
On top of that, the oil giant has spent millions each year on lobbying — including $15.9 million last year alone — as it has tried to influence energy policy.
During his time in the Senate and while running for president, Obama received a total of $77,051 from the oil giant and is the top recipient of BP PAC and individual money over the past 20 years....
Eh. What's $77,051 to Obama? According to his spokesperson, he didn't take any money from corporate PACs when he was running for President. That actually makes the $77,051 more significant. He got it in earlier stages of his political career and, as they say, "Early money is like yeast, because it helps to raise the dough." Still... I find it hard to believe that $77,051, even adjusted for earliness, means anything to Obama.
Changing topics, do you support or oppose the recent ruling by the Supreme Court that says corporations and unions can spend as much money as they want to help political candidates win elections? Do you feel that way strongly or somewhat?
What percentage of those surveyed do you think understood "spend" to exclude contributing money to the candidate? 20%? I'm saying 20% to be snarky, because that's the proportion of respondents who approved of the decision. My real point is, the survey is utter trash. Worse than utter trash, because it propagated misinformation.
The [PowerPoint] presentation was delivered by RNC Finance Director Rob Bickhart to top donors and fundraisers at a party retreat in Boca Grande, Florida on February 18, a source at the gathering said...
One page, headed “The Evil Empire,” pictures Obama as the Joker from Batman, while House Speaker Nancy Pelosi and Senate Majority Leaders Harry Reid are depicted as Cruella DeVille and Scooby Doo, respectively.
Okay, now, that's just terrible. Everyone knows that Republicans can't do humor. But. And this is a big but. How do you depict Harry Reid as Scooby Doo? I did a Google image search and got nothing. Pelosi as Cruella and Obama as the Joker I've seen. But what's the Harry Reid Scooby Doo? Is it an audio joke connected to the last 2 syllables of his name?
The small donors who are the targets of direct marketing are described under the heading “Visceral Giving.” Their motivations are listed as “fear;” “Extreme negative feelings toward existing Administration;” and “Reactionary.”
Major donors, by contrast, are treated in a column headed “Calculated Giving.” Their motivations include: “Peer to Peer Pressure”; “access”; and “Ego-Driven.”
Rut roh.
But wait. Top donors were there for presentation. Driven by ego and benefiting from access, apparently. And — gasp! — able to laugh at themselves. Nooooooo. Not possible! They are Republicans!
... so you don't have to. Here's the text. Let me edit it down and supply a little commentary:
BASEBALL may be our national pastime... Ben Franklin... David Letterman... Milton Berle...
Man, that first paragraph telegraphs that the man has nothing to say!
Challenges of historic import... Congress ... dysfunction...
Many good people serve in Congress...
I don't want to attack any particular individual, but as a group, you people suck.
My father, Birch Bayh...
Everett Dirksen... asked what he could do to help...
A Republican displayed cooperativeness toward a Democrat, back in the old days.
When I was a boy, members of Congress from both parties, along with their families, would routinely visit our home for dinner or the holidays...
The parties partied. Back then. Chez Bayh.
... Sept. 11.... There were no Republicans or Democrats in the room that day...
That golden day...
Let’s start with a simple proposal: why not have a monthly lunch of all 100 senators?
Sounds good, but I'm not that hungry.
... the current campaign finance system that has such a corrosive effect on Congress....
The recent Supreme Court ruling in Citizens United v. Federal Election Commission, allowing corporations and unions to spend freely on ads explicitly supporting or opposing political candidates, will worsen matters. The threat of unlimited amounts of negative advertising from special interest groups will only make members more beholden to their natural constituencies and more afraid of violating party orthodoxies.
Help! All that vigorous free speech will make us even bigger pussies than we already are!
... the Senate should reform... the filibuster....
Admittedly, I have participated in filibusters. If not abused, the filibuster can foster consensus-building...
.... filibusters should require 35 senators to sign a public petition and make a commitment to continually debate... Those who obstruct the Senate should pay a price in public notoriety and physical exhaustion....
And, eventually, we will be hungry enough to eat 100 Senators for lunch.
What’s more, the number of votes needed to overcome a filibuster should be reduced to 55 from 60....
During my father’s era, filibusters were commonly used to block civil rights legislation and, in 1975, the requisite number of votes was reduced to 60 from 67. The challenges facing the country today are so substantial that further delay imperils the Republic and warrants another reduction in the supermajority requirement.
The challenge = Scott Brown got elected... and a couple very elderly Dems are not feeling so well. And the majority of Americans don't like what you're trying to do, so you need to get this thing through before the next election. That's like the Civil Rights Act, isn't it?!
Remember this post of mine about a WSJ op-ed by Bruce Ackerman and Congressman David Wu proposing a $50 tax credit for people to donate to presidential candidates? It was presented as a kind of antidote to the Citizens United case, which recognized a First Amendment freedom for corporations to engage in political speech.
I had some questions about the proposal because, for one thing, it's about enabling people to channel money to candidates, which is different from doing your own speaking. I worried about those immediate electronic refunds:
Ah! How the cash could flow! Just push buttons on line. Is that too easy? Do you worry about corruption? Does it unduly favor the kind of people who use computers and credit cards... or is that really everybody now?
Professor Ackerman emailed me to say that he had answers to my questions in his book "Democracy Dollars" (co-written with Ian Ayres and not with Wu), and I asked for some electronic text, which he sent. From pages 69-70:
In our brave new world, Americans simply go to their neighborhood ATM and vote their Patriot dollars under three ground rules.
Vote. Presumably in the lingo of the book, the $50 donation is equated to a vote. You get a donation to channel to someone, which is sort of like voting.
The first gives each voter five days to change her mind. This not only encourages sober second thought but makes a black market tough to organize. To see why, suppose that a fraudster offers Citizen X $20 in private money if she allows him to accompany her to the ATM and watch her transfer 50 Patriots to his favorite candidate. X accepts the offer, executes the transaction, takes the $20 — and then returns the next day to countermand the order!
That assumes Citizen X cares about politics... and isn't afraid of the fraudster. I think a lot of people would gladly pocket the $20 and not give a damn about where the $30 went. It's not like they have a way to get their hands on the $30. They have to give away the $50, so there will be endless schemes to get hold of those millions of $50s.
Not a good deal for the fraudster, especially if we add two rules. Patriotic contributions should be anonymous — making it impossible for the fraudster to contact his favored beneficiary to see whether the transaction sticks.
Citizen X would need to believe that anonymity is secure.
And the ATM will accept only Patriot accounts linked to standard electronic cards. This prevents the fraudster from demanding possession of X's ATM card for the five-day cooling off period, thereby making it impossible for her to change her mind. While X might give away a free-floating Patriot card, she will refuse to surrender a standard credit card to somebody who is not, by definition, very trustworthy. If she ever gets her American Express back, she may find not only that her Patriot account is empty but that the fraudster has used it to finance his trip to Las Vegas!
Does everyone have a credit card? Do we really want a government program bound up in the operations of private credit card companies? Will the credit card company get a cut of all these transactions? Or are we going to end up with a government credit card company?
As a final anticorruption safeguard, all Patriot accounts will expire after six years. Renewal will be easy — a citizen must simply vote once during the period, and swipe his card once again through the electronic reader available at his polling place. Regular renewal prunes the files of dead and incapacitated cardholders-cutting out another source of fraud. To be sure, it also eliminates people who fail to vote once in six years. But this seems entirely acceptable. Nonvoters can regain their patriotic status simply by reregistering.
I also asked whether "incumbents [would] snap up the money and make it even harder for newcomers to get started." And Professor Ackerman pointed to this, at pages 78-79:
Fundamental fairness may be compromised if one candidate conducts an expensive primary battle while the other doesn't. The problem is at its maximum when a sitting president is running for reelection. The man (or woman!) in the White House comes to the table with such great advantages that he may avoid a significant challenge in the primary. This will allow him to stockpile the pool of Patriots from members of his own party while challengers raise and spend large sums for the privilege of running against him in November. By the time the out-party selects its candidate, the successful nominee may confront a serious problem raising patriotic donations from the party faithful. Many will have spent their wad during the primaries, leaving the challenger to face an incumbent sitting on a large patriotic stockpile. It is tough enough ousting a sitting president without giving him this further advantage.
The problem is of constitutional dimension. After Franklin Roosevelt's four-term presidency, the American people said "never again," and enacted a constitutional amendment checking the power of incumbent presidents by limiting them to two terms in office. Our approach to Patriot is guided by this decision. In the case of incumbents running for reelection, we divide the 25 Patriot dollars allocated to each presidential account into two subaccounts-allocating $10, say, to the primaries and $15 to the general election. This will permit the out-party to wage a fierce struggle over the nomination without compromising its capacity to run an effective race in the fall.
The system is infinitely tweakable. I note that it will be tweaked by incumbents and the party in power. Why would they "permit the out-party" to do anything they don't want? Once the system is in place and all that money is at stake, the game will be played by ambitious politicians, not by neutral wise men (and wise women!) trying to perfect democracy.
I also asked about what was going on in the states that had programs like this. Here, Professor Ackerman quoted a law review article by Thomas Cmar, "Toward a Small Donor Democracy: The Past and Future of Incentive Programs for Small Political Contributions," 32 Fordham Urban Law Journal. 443, 462-75 (2005):
Oregon has the highest participation rate in the country for a political contribution incentive program, and in large measure this is due to the state providing the credit for contributions to PACs as well as candidates and parties. Many PACs solicit credit-eligible contributions aggressively, promoting the credit as a central aspect of their fundraising appeal. The result is that in recent electoral cycles, a substantial portion of contributions on which a tax credit was claimed went to PACs rather than to parties or candidates. ... Data from Oregon suggests, however, that Oregon's higher participation rate is driven by the mobilization efforts of contribution recipients."
PACmania. Comments? Personally, I'm terrified of all that money flowing around.
Kudlow has expressed some interest in mounting a bid. One of the men who's urging him to run, self-proclaimed "Wall St. guy" and Kudlow friend John Lakian, told me today that Kudlow is at "the 70 or 80 or 90% tipping point" toward throwing his hat in the ring. According to Lakian, one of the men behind the Draft Kudlow movement on Facebook and the web, the time is right for a man with Kudlow's extensive Wall St. connections to make a run for office.
"There's no question we'd be an underdog," Lakian said when I asked him how tough it would be for Kudlow or any other Republican to challenge Schumer's considerable war chest. But Lakian said that the new campaign finance rules set down in the Citizens United case would help close the money gap for Kudlow quite quickly.
Citizens United is not about campaign contributions. It's about independent spending. McMorris-Santoro would like his readers to think that corporations can fill up a "war chest" for a Republican challenger to match that of the long-time incumbent's. Alito-like, I'm mouthing the words: not true.
... Schumer is a formidable fundraiser who's sitting on $19 million in campaign funds. The DSCC did not respond to a request for comment about Schumer potential vulnerability.
So "Citizens United case would help close the money gap for Kudlow quite quickly" and the gap is $19 million?!
Hmm. Are they saying that because it's true or because it's strategic to say that?
Since the Supreme Court struck down limits last week on corporate-funded independent expenditure campaigns, Democrats and good-government advocates have been quick to warn of a flood of new corporate money entering American politics. But with campaigns already awash in corporate cash, some Democratic political pros doubt we'll notice much difference.
This is coming from TPM, which is a pro-Democrats blog.
"I don't think this is going to fundamentally change the way campaigns are done," said Mike Lux, a prominent Democratic consultant and operative who founded the Progressive Donor Network.
Steve Murphy, a Democratic consultant and former top aide to Dick Gephardt, agreed. "I don't believe this is a dramatic shift," he said.
Both men noted that corporations already move billions into entities that allow them to run hard-hitting "issue" ads. It's true that those ads couldn't directly advocate for the election or a defeat of a candidate. But they said that in their experience, issue ads are more effective anyway. In other words, corporations have long had a potent enough weapon at their disposal to influence elections when they've wanted to....
But the case itself — quite aside from its real effect — is an issue that Democrats might chose to exploit "to paint the Republicans as allies of corporations, and to tout Democrats' populist credentials."
But some in the consultant community see the issue as less than a political winner, arguing that voters don't care about process issues, and will judge Democrats by their substantive achievements.
"I wish Democrats would talk about this a little less," said Murphy. "We've got to produce."
If each citizen also had a chance to contribute democracy dollars, their donations would overwhelm the sums that corporations are likely to spend under the recent Supreme Court decision.
Under our initiative, candidates will find new rewards by appealing to mainstream interests. If they effectively express the concerns of ordinary people, citizens could respond by sending millions of democracy dollars in their direction. Despite the new financial power granted to corporations, Americans would gain a renewed sense that they could make a difference in politics.
The Supreme Court opinion did not free corporations to make more contributions to candidates. It recognized a constitutional right to speak for themselves. Ackerman and Wu's solution is designed to increase the flow of money to candidates, which would presumably boost the candidates' power to speak and counter this newly increased speech by corporations.
Ackerman and Wu are right that their solution — unlike attempts to rein in corporate speech — doesn't threaten free speech rights, but it's probably not true — as they claim — that it "allows ordinary Americans to compete effectively with corporations." It creates a huge flow of money to politicians so that the politicians can compete with corporations.
So Ackerman and Wu have a "more speech" solution — the classic preferred solution under First Amendment theory — but the "more speech" is going to come from the candidates. The speakers that will be yammering in our ears night and day will be corporate entities and politicians, not ordinary people, though Ackerman and Wu would like us to assume that the candidates that get the money will be those that "effectively express the concerns of ordinary people." So it's kind of like speech, except that somebody else is speaking for you.
Good idea? They're already doing it in "Oregon and other states." I'd like to hear more about how the state-level experiment has fared. Do the incumbents snap up the money and make it even harder for newcomers to get started?
Ackerman and Wu also put forward a new idea: setting up an electronic system that immediately refunds the amount you contribute onto your credit card. That way you wouldn't need to wait until you file your income tax return to get the money back. Ah! How the cash could flow! Just push buttons on line. Is that too easy? Do you worry about corruption? Does it unduly favor the kind of people who use computers and credit cards... or is that really everybody now?
The Supreme Court has ruled that corporations may spend freely to support or oppose candidates for president and Congress, easing decades-old limits on their participation in federal campaigns....
The justices also struck down part of the landmark McCain-Feingold campaign finance bill that barred union- and corporate-paid issue ads in the closing days of election campaigns.
Oh no? Why have these campaign finance crimes at all if we aren't going to enforce them? What is it about John Edwards that he deserves special compassion? I'd say he owes us big time for staying in the presidential race, holding our attention, when what we needed to do was compare Barack Obama and Hillary Clinton. That was massively selfish — and Elizabeth Edwards didn't stop him when she had the chance. I will not be suckered into feeling sorry for them.
I can't wait to read the transcript of the argument in Citizens United v. Federal Election Commission. It sounds as though Stewart may have made an advocacy blunder of historic proportion.
***
And how cool that Kindle got into the argument! I don't like my Kindle — because I need a sharper contrast (black on white) screen to feel good about it — but I love the technology of downloading books and want it to succeed. I would love to see this kind of technology unlock the Court's thinking and send it in the direction of greater freedom of speech.
ADDED: Here's the transcript (PDF). Justice Kennedy brings up the Kindle:
And I suppose it could even, is it the Kindle where you can read a book? I take it that's from a satellite. So the existing statute would probably prohibit that under your view?... Just to make it clear, it's the government's position that under the statute, if this Kindle device where you can read a book which is campaign advocacy, within the 60-30 day period, if it comes from a satellite, it's under -- it can be prohibited under the Constitution and perhaps under this statute?
The [government's] lawyer, Malcolm L. Stewart, said Congress has the power to ban political books, signs and Internet videos, if they are paid for by corporations and distributed not long before an election.
Mr. Stewart added that there was no difference in principle between the 90-minute documentary about Mrs. Clinton, “Hillary: The Movie,” and a 30-second television advertisement.
Justice Anthony M. Kennedy said the government’s uncompromising position could have dire consequences for the McCain-Feingold law.
“If we think that the application of this to a 90-minute film is unconstitutional,” Justice Kennedy said, “then the whole statute should fall under your view because there’s no distinction between the two?”
Mr. Stewart said the two kinds of communications should rise or fall together, so long as each satisfied a test set out by the court in a decision in 2007. That decision said restrictions in the McCain-Feingold law applied only to communications “susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.”...
Justice Samuel A. Alito Jr. asked... whether a campaign biography in book form could be banned. Mr. Stewart said yes, so long as it was paid for with a corporation’s general treasury money, as opposed to its political action committee.
“That’s pretty incredible,” Justice Alito said.
Justice Alito replaced Justice Sandra Day O’Connor, an author of the 5-to-4 decision upholding the McCain-Feingold law in 2003.
So then, the question, I presume, is: How badly will the government lose?
Oh, Malcolm Stewart. Malcolm Stewart. With your Macbeth-y first name and your Macbeth-ier last name. You did not just say the government might engage in a teensy little bit of judicious, narrowly tailored book-banning, did you?
... Stewart clarifies that it wouldn't be banned, but a corporation could be barred from using its general treasury funds to publish such a book and would be required to publish it through a PAC.
The chief justice seeks to clarify that this would be so even in a 500-page book with only one sentence that contained express advocacy. Stewart cheerfully agrees. The chief justice wonders whether this would apply even "to a sign held up in Lafayette Park saying vote for so-and-so." Stewart doesn't quite say no.
