Citizens United - Represent Consumers

Americans Unchained: Guns, Government and Justice

I’m starting to understand why there are 311 million Americans and 310 million guns in America. It’s not just about hunting or collecting.

It’s about self-defense – not against street crime, which has dropped like a rock over the last two decades, but against a world that seems to have run amok, and against which the government frequently seems inept or powerless.

I’m not just talking about 9/11 – though I’m willing to bet that gun sales spiked after our country, with all its military might and a $300 billion defense budget, proved defenseless against nineteen extremists with box cutters. Consider how Washington and Wall Street connived to betray America under the guise of “deregulation,” leaving our homes, jobs, and life savings at the mercy of greed-driven speculation. It will take years for most Americans to recover what they lost since 2008 – many never will. The U.S. government proved quite adept at arranging the immediate rescue of the Money Industry; but huge numbers of our citizenry are stuck in the equivalent of the New Orleans Superdome after Hurricane Katrina – left to fend for themselves.

Name a major disaster and then connect the dots, as I have attempted previously: the Enron/California Energy Crisis Hoax, 9/11, Katrina, the mass shootings by deranged loners who somehow “fall through the cracks” till they slaughter our loved ones. Then add the nation’s gravely inadequate response to global warming – the most dangerous and disruptive threat to our security on the horizon. A fearful pattern of incompetence emerges.

And so, if our government cannot protect us, we will protect ourselves – or at least try to, as if putting weapons in cockpits or classrooms is going to work.

A dramatic decline in public confidence in the government is clearly underway. 81% of Americans disapprove of the job Congress is doing, according to the Gallup polling organization. That’s actually an improvement over its all-time worst score of 90% last August, but hardly anything the Founders would be proud of. President Obama is also doing better, but his disapproval rating has soared from 15% in January 2009 to 43% a few days ago.

These numbers change when Americans are asked to assess the presidency and Congress as institutions in the abstract. The former scored a 43% disapproval rating – nearly identical to the current occupant’s. But only 65% of Americans disapproved of the legislative branch – fifteen points lower than the disapproval rate for the current Congress.

Rating the federal government as a whole, 63% of Americans say they are dissatisfied.

That the executive and legislative branches are held in low esteem is not news, and being the so-called “political” branches, not particularly surprising.

More important is the ranking of the branch of government whose single job is to maintain the basic software of the U.S. operating system – our laws. These are the principles, originating in the Constitution, by which democracy and its citizens are supposed to abide. They are administered by the judicial branch, the one branch of government structured to be impervious to political pressure, including the influence of money.

Trust in the legal system is higher than either the executive or legislative branches, Gallup researchers report, but a solid third of all Americans disapprove of the judicial branch. The good news is that Americans’ view of the courts hasn’t changed much since 1973.

By some objective measures, however, America’s once vaunted system of laws fares poorly with respect to other socio-economically similar nations. The World Justice Project’s annual “Rule of Law Index” places the U.S. nineteenth out of twenty-nine countries, principally because of wealth-based disparities in Americans’ access to the legal system.

The judicial branch faces four serious challenges that, unless abated, are going to further undermine public confidence – not just in the judiciary, but also in government and democracy.

First is the increasingly politicized conduct of the courts themselves.

In 2000, the Republican appointees on the Supreme Court stopped the vote count process in Florida and awarded the election to George Bush. In 2011, the Republican majority on the high court ruled that those “arbitration clauses” inserted in the fine print of virtually every contract between a giant corporation and consumers must be enforced to deny people their right to sue a company in court. And then of course there is the infamous Citizens United case, in which the Republican majority ruled that injecting money into elections to influence the outcome is a form of free speech, and that corporations exercising that right are protected by the First Amendment. In that single decision, the Court disenfranchised the vast majority of Americans who cannot hire their own lobbyist or fund the election of a friendly politician.

Finally, most Americans are aware that Chief Justice Roberts broke with his Republican colleagues to uphold federal health care reform last year. What they’re not aware of is this: buried in the legalese of that decision, Justice Roberts opened the door to a change in constitutional jurisprudence that would roll back American law to the standards in effect in 1905, when the Supreme Court struck down congressional workplace and other reforms. Consistently favoring corporations over people is not just bad law, it’s bad for the credibility of the court.

And it’s not just the Supreme Court. The overtly political and severely partisan appointments process for federal judges leads to decisions based on ideology rather than law, as the New York Times, surveying several recent books, reports.

Second, special interests are increasingly trying to corrupt judicial elections, a phenomenon that I’ve noted grew to serious proportions last year as a result of the Citizens United decision. Business groups seeking favorable treatment are challenging the judges who have ruled against them, or might do so in the future. John Grisham’s novel “The Appeal” is thinly veiled fact; the searing documentary “Hot Coffee” exposes the true story of how several state supreme court justices were ousted by business lobbyists. Far from being embarrassed by the assault on judicial impartiality, no less an institution than the U.S. Chamber of Commerce is leading the charge along with other business funded groups. The taxpayer-subsidized organizations’ two-step system is to first target state court systems based on whether they are pro-business or pro-consumer. A Chamber collaborator is slightly less nuanced: it calls these courts “judicial hellholes,” a term it has copyrighted. Then the groups help organize the political campaigns against the judges, replacing them with candidates who will rule in favor of big-business. An estimated $30 million was spent on TV ads alone in 2012 judicial elections. Once judges get sucked into the machinery of electoral campaigns, Americans will doubt their impartiality.

Third, the courts have approved crummy settlements in numerous lawsuits – often brought by government agencies – citing banks for unlawful foreclosure practices, illegal manipulation of interests rates, and a host of other multi-billion dollar heists and scams of breathtaking audacity connected to the financial debacle. My colleague Marty Berg has documented just a few of the many examples of settlements that leave the victims with next to nothing, while the banks and their fat cat execs get off with a slap on the wrist... or even a kiss on the lips. It’s not the courts’ fault that federal prosecutors can’t seem to throw a net around the high-level white-collar crooks that ran our economy into a ditch and destroyed so many people’s lives. But the courts do have the responsibility to reject the vacuous deals that benefit only the perps and their political friends. With the few notable exceptions of federal judges insisting on tougher terms, the vast majority of these sweetheart settlements are rubber-stamped.

Fourth, the court systems in many states have sustained heavy collateral damage from the Wall Street Financial Debacle of 2008. In California, budget deficits have led to massive cuts in funding for the courts; some courtrooms have closed; judges have retired; and parties now have to pay for their own court reporters to record the proceedings. It is not mere inconvenience that concerns lawyers here. “Justice is now being rationed in our state,” Patrick Kelly, the President of the California State Bar said. He told the Los Angeles Daily Journal: “The public….[is] used to a court system that handles all these issues, child support obligations, contract disputes. What is going to happen when the court system can no longer take care of that? … There is a potential [for] serious degeneration of civil responsibility in California.”

By applying the rule of law, courts play a critical role in preserving American ideals of fairness, competition and impartial justice. John Adams, who helped Jefferson draft the Declaration of Independence and later became the second president of the United States, said this of the Seventh Amendment: “without the right to trial by jury we have no way to keep us from being ridden like horses, fleeced like sheep, fed like swine and clothed like hounds.”

The presence of a million more guns than people in this country is an alarming plebiscite on the nation’s confidence in the rule of law. If Americans lose faith in the courts as they have with other democratic institutions, disputes that would otherwise be settled by law will be settled by force. Take a look at the chaos and devastation now underway in countries where the only law that governs is the law of the jungle.

Five Things Senator Elizabeth Warren Should Do Right Away

Beating the $5.5 million that the Money Industry spent against Harvard Law Professor Elizabeth Warren was the easy part.

Now Warren has to decide what she’s going to do in the U.S. Senate, where just a couple of years ago, powerful pro-Wall Street Democrats like Christopher Dodd and Treasury Secretary Geithner killed any chance that she’d be confirmed to head the new Consumer Financial Protection Bureau – possibly the most significant part of the post-2008 crash financial reform legislation. As they hoped, President Obama didn’t even bother to nominate her – even though the concept of a federal agency to protect consumers against Wall Street’s misdeeds was hers.

First, Warren has to choose what role she’ll play once she’s on the inside. Its members like to think of themselves as august and deliberative, but in fact the Senate is deeply dysfunctional and its Democratic leadership easily deterred from meaningful action by the mere threat of a filibuster. In a recent New York Times piece on the Senator-elect, you could easily spot the inside-the-Beltway types trying to crush expectations – Warren’s and ours.

Don’t dismiss the perils of the decision.

Official Washington wants Warren to play the game, wait her turn, not rock the boat and eventually win the respect and support of her “colleagues” – the traditional route to power, influence and effectiveness in the Senate. Or she can damn the torpedoes and go full speed ahead in support of popular consumer reforms, at the risk of angering and alienating those who might otherwise be her allies.

And don’t forget who her true opposition is: the multinational corporations and their Washington lobbyists, who supply senators with the cash they need to get elected. That’s what drove the American economy into a depression four years ago, as we explained in our report “Sold Out: How Washington and Wall Street Betrayed America.” (PDF) Thanks to the U.S. Supreme Court’s decision in Citizens United, they’re free to spend as much of it as they want to influence the democratic process.

Senator-elect Warren has already indicated which way she’s headed. “If the notion … is we’re going to elect somebody to the United States Senate so they can be the 100th least senior person in there and be polite, and somewhere in their fourth or fifth year do some bipartisan bill that nobody cares about, don’t vote for me,” she has said.

That’s precisely the right call. Warren is a deceptively disarming warrior – I called her “the lawyer with the dragon tattoo” a few years back. She’s got unique nerd-quality credentials, a national support base, and the close attention of the news media. Not since Ralph Nader drew nationwide attention to consumer health, safety and environmental issues in the 1970s has there been such a respected and resonant voice on consumer issues.

No one else in the Senate – or even the federal government, with the exceptions of the President and the Secretary of State – comes close. She can leverage her rock star status to propel a progressive agenda of reforms that will be so popular with the public that the other 99 will have little choice but to go along. Her leadership will prove particularly helpful to her fellow Democrats, who badly need to show that as a majority they can get something done for average Americans. The Congress and the country needs a lion in the Senate. That’s what they used to call Ted Kennedy, whose seat Warren will occupy. It’s poetic politics.

The next question for Warren will be what to work on. Here are five suggestions:

1. Bankruptcy reform. Warren, a bankruptcy expert, became widely known in the 1990s for her critique of the practices of America’s banks and credit card companies in law reviews and academic pieces. When the financial industry was lobbying Congress to make it harder for the average American to declare bankruptcy, Warren penned a landmark analysis (PDF) that concluded that most Americans sought bankruptcy protection not because they were freeloaders or deadbeats but because they could no longer afford to pay their medical bills. Unfortunately, Wall Street won, and the so-called “Bankruptcy Abuse Prevention and Consumer Protection Act of 2005” made it nearly impossible for beleaguered consumers to get a fresh start – a huge victory for the credit card industry that made sure repayment of plastic debt got higher priority than child support payments, for example. Warren should investigate the inequities of the 2005 law and then seek corrective amendments.

2. Lower credit card interest rates. Having bailed out the banking industry, Congress was under pressure to do something about credit card abuses. The “Credit Card Act of 2009” was the deeply compromised and flawed result – read our analysis here. Missing, especially, was a cap on credit card interest rates. While consumers are struggling to cover their mortgages, and pay down credit card debt at 20-30% interest rates, the banks and credit card companies get to borrow taxpayer money – our money – from the Federal Reserve at nearly 0% interest rates. That needs to be fixed, and if it is: imagine the stimulus effect on the U.S. economy.

3. Fix the Senate filibuster rule. The filibuster used to be a powerful tool for a minority of members of the Senate to take on the majority: Senators could block a vote on a bill by speaking on the floor of the Senate until they dropped... or sixty Senators voted to shut down the filibuster. Unfortunately, this extraordinary measure, once rarely invoked, has devolved. Under the current practice, a Senator need only threaten a filibuster to block a vote. It’s been used hundreds of times since 2006 by Senate Republicans to derail action on important bills and judicial appointments. Warren has already pledged to revise the filibuster rule when the Senate convenes in January. As she points out, preventing abuse of the filibuster is necessary if the Senate is going to move forward to address the nation’s most pressing problems.

4. Speak out every week. Lawmaking is just one role of a U.S. Senator. Another is to use the power and influence of the position to investigate and highlight problems in and outside of government. Wisconsin Senator William Proxmire did just that in the 1970s and 1980s through what he called “The Golden Fleece Award,” which he presented monthly to public officials who, he believed, were wasting taxpayer money. Proxmire’s pronouncements, which both amused and maddened taxpayers, were closely followed by the news media. Warren should initiate a weekly tradition of calling out waste, inefficiency, and corruption, wherever it is found.

5. Restore the First Amendment to Human Beings. According to five members of the U.S. Supreme Court, the right of corporations to spend money to influence elections, and to give money and gifts to politicians for the purpose of influencing their votes, is protected by the First Amendment and cannot be limited or regulated. That’s the infamous ruling in Citizens United v. Federal Election Commission. The Supreme Court’s decision has unleashed a tidal wave of corporate money, often undisclosed, into our elections, one that has drowned out the voices of average Americans and turned our country into an aristocracy in which the People are taxed for the benefit of the powerful elites that run Wall Street and Washington. A grassroots campaign is underway to enact a Constitutional Amendment specifying that, “the protections of the First Amendment that apply to the spending of money on lobbying and elections, whether by contributions, expenditures or otherwise, shall extend only to human beings.” Senator Warren should be one of the leaders of that crucial reform.

Citizens United / Congress / Consumer Financial Protection Agency / Harvey Column - 11/16/2012

And The Loser Is….We, the People

No matter which way it goes on Tuesday, this election – the first presidential contest since the U.S. Supreme Court let the dogs out in Citizens United – has to be recognized as a disaster for democracy. In thousands of races, from the presidential down to statehouse races, an unprecedented influx of money has corrupted the electoral process.

Here are five dangerous trends in American politics that have manifested themselves this year.

1. Spending by “Outsiders.” In Citizens United, the Supreme Court ruled that spending money is a form of freedom of speech under the First Amendment. And the court gave corporations the same “freedom of speech” that American citizens were granted by the Bill of Rights. That ruling, issued in January 2010, freed corporations and other inanimate entities from limits on influencing elections.

Of the record $2 billion raised and spent in the presidential campaign, close to half appears to have come not from money raised by the candidates themselves or their political parties, but rather from Super PACS: campaign organizations that are supposed to be completely independent of the candidates. No talking is allowed between the candidate and the Super PAC. But this “firewall” is a fraud on the voters. All it takes is a few sophisticated lawyers and a “wink and nod” approach for the candidate campaigns to communicate their strategy and desires to the “independent” campaign.

We’re not really talking about “outsiders” here anyhow. The people running these operations are consummate insiders – usually people who have worked directly for the candidates and parties in the very recent past. Strategists for the Romney campaign also consult with Karl Rove’s Super PAC, American Crossroads, which is right down the hall. One of the pro-Obama Super PACs is run by two former White House aides.

2. “Issue” Advertising by Business Interests. The enormous spending reported for or against the presidential candidates by allegedly independent Super PAC supporters doesn’t include expenditures for so-called “issue advertising”: advertising propaganda dumped into our living rooms and pumped into our computers by political partisans who are able to skirt disclosure and other laws by discussing “causes” without actually urging a yes or no vote on a candidate – even though it’s obvious from the message who the ad targets.

In the post-Citizens United world, the lines are getting even blurrier: business interests that want to explicitly influence candidate elections without revealing their identity have begun funneling money through non-profit organizations set up for that purpose, an abuse of the laws granting tax exempt status to social welfare organizations. For example, Citizens for Responsibility and Ethics in Washington was able to track $7.4 million in donations the Aetna, the health insurance company, made to two non-profit organizations, and attacking lawmakers for supporting Obamacare – at the same time that the president of Aetna was making public speeches in support of the law. But that is an exception: sophisticated corporations can easily avoid disclosing their “donations” to ersatz non-profit organizations.

3. Corporations buying the courts. Most state judges are appointed by the governor, but must run for re-election or “retention.” Increasingly, business groups who want favorable court rulings are challenging judges who have ruled against them or might do so. Big money – tens of millions of dollars – is pouring into judicial elections in half a dozen states on Tuesday, featuring the kind of nasty and deceptive thirty second ads that have polluted the airwaves in candidate races. Leading this attempt to stack the deck in the courts is the U.S. Chamber of Commerce, whose corporate members want to elect judges who will throw out consumer, defective product and environmental protection cases. Confronted with well-funded challenges by a special interest, the judges can only defend themselves by raising money from…some other special interest.

This is not just tawdry, it's a devastating threat to our country. The judiciary is the one branch of government that is supposed to be insulated from partisanship; where decisions are made based on the rule of law, not political considerations. A series of rulings by the current US Supreme Court – Bush v Gore, for example, Citizens United, and even its decision upholding federal health care reform (read the fine print) – have already undermined that principle; public disapproval of the high court, once held sacrosanct, now approaches 40%. Once the American people lose confidence in the integrity of the judicial branch, democracy itself is in jeopardy.

4. The Millionaires Club. Let’s say you want to run for public office because you want to help solve America’s problems. And you aren’t beholden to anyone; in fact, corruption is one of the problems you want to solve. There are lots of Americans of all political stripes who would want to serve their country. But with so much corporate money in politics, how are people who are not in the pocket of some special interest able to run? You have to be rich! Nearly half of the US House of Representatives, and two-thirds of the US Senate, are millionaires, according to a study published last year.

It’s tempting to think that the wealthy will better serve the public because they have no need to raise money from special interests, but we in California learned the hard way that that is not necessarily true: “As you know, I don't need to take any money from anybody” then action movie star Arnold Schwarzenegger told Jay Leno” back in 2003. “I have plenty of money myself.” The next year, Schwarzenegger ran for Governor to replace Governor Gray Davis, who was widely criticized for his incessant fundraising. As Governor, Schwarzenegger broke Davis’s fundraising record.

The disparity in wealth between elected officials and the people they are supposed to represent is at least partly why America’s economy is in terrible shape today. When Wall Street and Washington got together, few public officials were willing to oppose the deregulatory policies that led to the financial crash in 2008. (Download our report on the Great Betrayal here.) It’s the reason why, when Congress passed credit card reform, the piece most important to average Americans was missing: a cap on interest rates. The experience of being a member of the middle class, or poor, isn't a reality for most of our elected officials. The rest of us pay for that.

5. Your vote, nullified. Supporters of the Wild West approach to political funding like to point out that the voters still have the last word. Corporations ostensibly can’t vote – at least not yet. But take a look at what has happened: the average American has little possibility of running for office when up against well-funded candidates beholden to special interests. We have freedom of speech, but unless you own a TV station, your views are drowned out by billions of dollars in paid advertising. Meanwhile, pocketbook issues of profound import for the middle class – international trade, Social Security – are off the table – hardly debated by the candidates, so as not to offend the powerful. Voters today have been reduced to spectators: we are presented with a slate of candidates and causes by way of thirty-second commercials, and we have to hope we can discern the truth.

There is only one solution to this crisis: a constitutional amendment to restore our democracy to the people. Here’s our formulation of the 28^th Amendment to the Constitution:

“The protections of the First Amendment that apply to the spending of money on lobbying and elections, whether by contributions, expenditures or otherwise, shall extend only to human beings.”

Whatever the outcome tomorrow, this is the campaign all Americans need to get behind.

Images of Pres. Obama and Gov. Romney (c) Charles Lynn Bragg – Thanks, Bro!

Citizens United / Harvey Column - 11/05/2012

Release the Kraken

I filled out my California ballot today, choosing candidates and wading through the propositions trying to figure out who’s behind what and why. I don’t blame people who feel like bystanders in democracy these days – that some ethereal dispute is underway that most of us aren’t meant to understand. It's like in the movie “Clash of the Titans,” in which the gods are fighting each other while mere mortals are mostly just trying to avoid becoming collateral damage, dodging the Kraken and other nightmares hurled down upon them from Mount Olympus.

The various official and Super PAC campaigns for the presidential candidates are expected to break the $2 billion barrier by Election Day, a dubious record made possible by several men in black on the United States Supreme Court, whose decision in Citizens United authorized corporations to take control of American politics under the guise of freedom of speech.

In California, meanwhile, well-heeled politicians and special interest partisans in the proposition battles are spending hundreds of millions more flooding the airwaves and mailboxes.

Interesting, isn’t it, that the electoral marketplace is prosperous – like the stock market. Meanwhile, back on the planet, those Americans not employed by the Money Industry (unemployment rate: 4.6%), or its dependent relative the Political Industry, are desperately trying to hang on to a job, or more likely a part-time job. And yet, as my colleague Marty Berg and Ralph Nader have pointed out, neither Obama nor Romney have had anything to say about raising the minimum wage. It’s $7.25 an hour for federal workers; a whopping $8 an hour in California.

We could probably increase the minimum wage significantly just by taxing political advertising in the United States. Doubt that would get past the Supreme Court, though.

It’s not only the amount of money, but how it’s being unleashed: in an extraordinary assault of distortions and lies, raining down on the heads of voters from incomprehensible, sometimes secret sources. Take the California elections, for example. Proponents of Proposition 32 on the ballot insist that by limiting the political activities of unions, it will increase government “transparency.” But the Proposition 32 campaign is being funded by out of state money of unknown origin. The lobbyists hired by Proposition 33, which is 99.4% funded by the long-time CEO of Mercury Insurance Company, sued several of us who are opposed to the measure in court last August. They lost; but last week they claimed that we sued them and we lost. Huh? Then there’s Proposition 37, which would accomplish the unarguable goal of requiring food that is genetically engineered to disclose it on the packaging. You couldn’t possibly understand that from the TV ad against Prop 37, which features doctors and farmers riffing on how Prop 37 will inspire frivolous lawsuits, raise your grocery bills by zillions of dollars and favor dogs over people. It's the Kraken, beamed into our living rooms to terrorize us.

Figuring out the truth about this proposition is hard enough; figuring out who's paying for the TV commercials is impossible. No, really: try it for yourself. Watch this YouTube video and see if you can read the 75 words that appear for exactly three seconds in block micro-print at around 27 seconds in. If you pause it and squint, you might catch the names DuPont, Monsanto and ConAgra. Kind of alters your view of Prop. 37, doesn't it?

The nation’s electoral discourse is so polluted by money-driven deceit these days that it has its own sociological description: “post-truth” politics.

Honesty in campaigns used to be policed by journalists, particularly newspaper reporters, who had the expertise and experience to weigh in on complex issues and call out the liars. But their numbers have dwindled, leaving the combatants (or in the case of the special interests, their highly paid surrogates) to slug it out. The Golden Rule often determines who prevails: he who has the gold, rules.

Or maybe it makes no difference at all. According to a story in this week’s New Yorker, the Obama campaign has concluded, after an exhaustive study of the 2008 race, that the most effective way to reach a voter is “not TV ads or glossy mail but contact from an enthusiastic human being.” Is it possible Americans have finally figured out that when “the TV tells you” how to vote, as one voter said to me back in a 1998, night after night without surcease, you can probably safely assume the sponsor of that ad is not on your side, and vote the other way? Maybe if someone you trust calls or shows up at your doorstep – but that costs a lot of money, too.

The average American cannot compete against the monied and powerful in the political or legislative arena. That's the betrayal of America's Constitution rotting at the core of the Citizens United decision. By equating money to speech, and decreeing that corporations have the same free speech rights as human beings, the high court rendered most Americans mute. We are now spectators, hoping we will somehow see the truth. Or at least not get hurt.

Illustration (c) Charles Lynn Bragg

Citizens United / Harvey Column / Uncategorized - 10/30/2012

Secret Money Stains California Election

Why is an Arizona-based organization called Americans For Responsible Leadership pouring a walloping $11 million into the fight over two California ballot initiatives?

It’s one of those supposed social welfare groups with a bland name that tries to get around the rules to deliver huge anonymous contributions to their pet political causes.

According to Common Cause, it’s the largest secret campaign contribution in the state’s history.

Welcome to the toxic brew of big money and anonymity poisoning our democracy.

This was not how it was supposed to work when the U.S. Supreme Court unleashed the flood of big money with its landmark 2010 Citizens United ruling, in which the justices allowed corporations to make unlimited donations to political action committees not tied to a particular candidate.

The justices said big money was just another form of free speech guaranteed by the U.S. Constitution.

But in the ruling, the justices took a strong stance for public disclosure as the key to making Citizens United work.

Writing for the court in the 5-4 decision, Justice Kennedy said:

“With the advent of the Internet, prompt disclosure of  expenditures can provide shareholders and citizens with the information needed to hold corporations and elected  officials accountable for their positions and supporters. Shareholders can determine whether their corporation’s political speech advances the corporation's interest in  making profits, and citizens can see whether elected officials are ‘in the pocket’ of so-called moneyed interests.”

That’s not what’s happened, as big money donors have sought the anonymity offered by the “social welfare orgamizations” to conceal their intent.

According to its web site, Americans For Responsible Leadership “seeks to promote the general welfare by educating the public on concepts that advance government accountability, transparency, ethics, and related public policy issues.”

There’s no mention of motherhood and apple pie but, even so, who could argue with that mission statement, especially transparency?

Obviously they’re up to something other than those innocuous platitudes.

The Americans For Responsible Leadership, whose officers are Arizona Republicans, got its start supporting Tea Party candidates for local office and then moved on to statewide issues.

Now the ARL is jumping into California politics in a major way to oppose Proposition 30, Gov. Brown’s bid to raise taxes, and to support Proposition 32. While its supporters contend that Prop 32 is a campaign finance reform measure, opponents warn that it would bar unions from using dues collected from members to spend on politics. Prop 32 would allow corporations to continue to spend freely.

ARL’s $11 million has been funneled through the Small Business Action Committee, a California group that has focused on the two propositions.

ARL, a non-profit organization, doesn’t say where it got the money. And non-profits are generally allowed to protect the identity of their donors. But different rules apply when non-profits get involved in political campaigns:
California law requires that if its donors know their funds are going toward a ballot proposition, their identities have to be disclosed.

It’s not the first time that out- of-state, anonymous money has put its weight behind Proposition 32. Iowa-based American Future Fund, another non-profit “social welfare group” closely linked to the Republican Party and Mitt Romney, has already spent $4 million to boost Proposition 32. That organization has also been linked to the notorious Koch Brothers, the billionaire energy magnates known for backing up their opposition to labor unions, environmental regulation and President Obama with massive amounts of cash.

California Common Cause has filed a complaint over Americans For Responsible Leadership’s foray into California politics.

Common Cause’s Derek Cressmen told Frying Pan News’ Bill Raden that the group also has links to Karl Rove, another prime mover of right-wing anonymous political money: ARL employs the same Virginia law firm as the Koch Brothers and Rove super-PACS.

Responding to the Common Cause complaint, the state’s Fair Political Practices Commission has demanded detailed disclosure of the source of the $11 million.

On Frying Pan News, Raden suggests that the ARL’s motive for its California contribution may not have been entirely altruistic – in exchange for funneling the anonymous contribution into California, the Koch Brothers allegedly gave $350,000 for ARL to spend on politicking in its own state.

We can only hope that our state FPPC will give the Americans For Responsible Leadership a little taste of the transparency it says it favors. Tackling the Citizens United ruling will take longer. For a start, take a look at the constitutional amendment we’ve proposed and get some background here.

Citizens United / Martin Column - 10/29/2012

How Retired Justice David Souter Can Save the Supreme Court

The reputation of the United States Supreme Court is in trouble. Americans’ approval of the Court dropped fifteen points from 2009 to 2011, according to the Gallup Poll. Faith in the Supreme Court is dropping right along with confidence in government as a whole. Less than 2/3 of Americans say they trust the judicial branch, Gallup says.

And with good reason. Beginning with Bush v Gore in 2000, the court has issued a series of starkly partisan rulings in favor of conservative and corporate causes.

The decision of the high court that has most inspired outrage and derision in recent years is Citizens United. The Supreme Court rewrote the First Amendment to equate money spent on influencing elections and lobbying elected officials as a form of free speech under the First Amendment. Then the Court granted corporations the same First Amendment rights as humans. This twofer has unleashed a spree of legalized bribery by corporate America that will reach epic proportions in elections this year. It’s also ignited a grassroots firestorm. Where’s Our Money, and many other organizations, are backing a Constitutional Amendment to restore the primacy of humans to American Democracy.

As Justice John Paul Stevens pointed out in his blistering dissent to the majority’s opinion in Citizens United, the decision overturns a hundred years of Supreme Court rulings upholding restrictions on corporate campaign spending. Such a sudden and profound reversal in what the Constitution supposedly means is an offense in itself. It flouts a core principle of the American judiciary, known as “stare decisis,” which requires judges to respect the judicial decisions of their predecessors. “Stare decisis” is the basis for public faith in the integrity and honesty of judges and courts.

Perhaps for that reason, the Citizens United decision seems to have inspired several former justices of the Supreme Court to speak out.

In late May, now retired Justice Stevens, in a speech at the University of Arkansas, condemned the majority’s opinion in Citizens United as internally inconsistent because it leads inexorably to the conclusion that “the identity of some speakers may provide a legally acceptable basis for restricting speech,” something that can’t be squared with the text of the First Amendment – even as interpreted by the Republican majority in that very case.

Stevens also defended President Obama for taking on the Citizens United decision in his State of the Union speech in 2010, right in front of several of the justices. Which may or may not have something to do with why Stevens was at the White House last week to receive the Medal of Freedom. Stevens took the opportunity to again criticize Citizens United.

Another retired justice has also weighed in, perhaps involuntarily. As Jeffrey Toobin reported in the New Yorker two weeks ago, Citizens United started out as relatively modest challenge to a federal campaign finance law. Supreme Court Chief Justice John Roberts and his conservative fellow travelers on the Court subsequently decided to use the case as an opportunity to rewrite the First Amendment in favor of big corporations. But Justice David Souter, a fiercely independent and revered jurist, objected to this tactic. According to Toobin, Souter, scheduled to retire in June, 2009, “wrote a dissent that aired some of the Court’s dirty laundry. By definition, dissents challenge the legal conclusions of the majority, but Souter accused the Chief Justice of violating the Court’s own procedures to engineer the result he wanted.” Toobin describes Souter’s draft dissent as “an extraordinary, bridge-burning farewell to the Court.”

To avoid a published dissent that would have profoundly questioned the integrity of his Court, Chief Justice Roberts set the case for re-argument on June 29, 2009. This highly unusual move kicked the decision over until the next court term. Toobin says that Roberts did this knowing that Souter would be gone by then.

The source for this explosive reporting could be Justice Stevens... or it could be retired Justice Souter himself.

Souter has donated his papers – including presumably his draft dissent in Citizens United – to the New Hampshire Historical Society. Unfortunately, he has barred any access to them for fifty years.

We can’t wait that long. It’s hard to estimate how much damage to American politics will be done between now and 2056. A nation dominated by corporations and mega-wealthy CEOs for the next half-century will look a lot worse than even the corrupt system in effect today.

And the erosion of trust in the integrity of the Supreme Court is something all Americans – not merely we lawyers devoted to justice – should be alarmed about. The judicial branch used to be the one branch of government where the average person could take on City Hall or a giant corporation and expect to be treated equally, free of political influences. Lose that option, and what’s left for the 99%?

Retired justices typically refrain from criticizing their former colleagues. A sense of decorum, and the sanctity of the judicial process, mandates a quiet retirement for most departed members of the Supreme Court. But the integrity of the institution itself is now in question. The rule of law is being supplanted by the political preferences of the appointees on the Court. It won’t be long before the monstrous swelling of money in politics spread by Citizens United directly infects the composition of the high court itself. Those who care about the independence of the judicial branch should do everything in their power to save the Supreme Court. This includes justices who have left the Court.

Like everything else in our democracy, exposure is the first step toward healing. Americans deserve to know what is going on behind those closed bronze doors, above which reads the promise, “Equal Justice Under Law.”

Justice Souter should permit the immediate release of his original draft dissent in Citizens United.

Citizens United / Harvey Column - 06/06/2012

Will the Supreme Court Split the Difference on Health Care and Immigration?

"The High Court" (c) Charles Bragg

Last November, the U.S. Supreme Court announced it would hear one of many lawsuits by conservative officials challenging the new federal health care reform law championed by President Obama. At the time, you will recall, very few observers thought there was a serious chance that the high court would invalidate the legislation.

I was among them –until three weeks later, when the Supreme Court announced it would hear the federal government’s challenge to Arizona’s immigration law, which bars illegal immigrants from trying to get a job and gives state cops the power to arrest people suspected of being illegal immigrants. The Obama Administration argues the Arizona law interferes with federal authority to control the nation’s borders.

When I heard that the Court took the immigration case, I was pretty sure I saw a trade-off in the works.

Here’s how I reckoned it: extreme conservatives loathe universal health care (and the President) and want to stop it now, before it takes effect and becomes one of those successful federal programs, like Social Security, that becomes wildly popular and hence impossible to privatize or repeal. Liberals, by contrast, aren’t crazy about the sorely compromised product that President Obama signed, but they believe that everybody should receive the health care they need, and that the government ought to at least mandate fair rules in the marketplace. Overturning the new law would set liberals ablaze, and give President Obama a powerful campaign issue – activist judges – in the Fall.

On immigration, many liberals are uncomfortable with the harsh and arguably unconstitutional provisions of Arizona’s law. And they remember how the “state’s rights” movement was once a thinly veiled euphemism for maintaining state laws that discriminated against African Americans. But conservatives strongly support the right of Arizona to take extraordinary measures to stop illegal immigration. Overturning the Arizona statute would anger the conservative base.

See where I’m going here?

By taking both cases within a few weeks of each other, the Republican majority on the Supreme Court gave itself the kind of political cushion it didn’t have when it handed the presidency to George W. Bush in Bush v. Gore. The high court can grant conservatives the massive victory they seek by invalidating federal health care reform, and then disappoint them by ruling in favor of the federal government in the Arizona case.

“See! Impartial!” the pundits will trumpet; “this proves that Supreme Court ‘judges are like umpires,’” as now Chief Justice John Roberts put it during his confirmation hearings on Capitol Hill in 2005. “Umpires don't make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules,” he said at the time, and it sounded reassuring.

“Split the difference” maneuvering is a common feature in American politics. I've seen it in action ever since I first worked on Capitol Hill in the Seventies. The lawmaker votes against a bill – disappointing some – only to vote for a different bill a few days later, pleasing them. All is forgiven, or maybe not; either way, it's portrayed as proof of "independence": “If both sides are mad at me,” the politicians’ old saw goes, “I must be doing something right.”

That may fool some of the people some of the time, but such tactical machinations are of course completely improper in the judicial branch, where justice is supposed to be blind and decisions made based on the merits of the case, not whether “the base” will be thrilled or disappointed, or both.

As a lifelong student of the law, I hope I’m wrong about the U.S. Supreme Court. Those who devote their lives to justice, as most lawyers one way or another must, can only rue the public’s distrust of the judicial process.

That’s growing, and no wonder. Some conservatives indiscriminately berate “judicial activists” on the bench. Meanwhile, corporations spend increasingly vast sums of money belittling judges, juries and lawyers in the quest to pass legislation repealing the average American’s right to hold wrongdoers accountable in a court, which they call "tort reform."

And in a little noticed part of its infamous Citizens United decision, the Supreme Court granted corporations the First Amendment right to campaign for or against judges as if they were politicians. Super PACs are now targeting justices whose rulings aren’t pro-business enough – as if “pro-business” is a constitutional imperative unto itself.

I checked the Constitution – it’s not in there.

Unfortunately, what’s transpired since last winter gives me little reason to believe that the current Supreme Court will put respect for precedent over politics. During three days of hearings last month, the notion that the Supreme Court would invalidate the federal health care law went from being a right wing fantasy to a possible, even likely, outcome based on the questions and comments of the Republican justices.

In fact, after the hearing on the immigration law last week, it looked to many like the Supreme Court was prepared to rule in favor of Arizona.

The Conventional Wisdom now has the Court dumping heath care reform and upholding the immigration controls, making it a clean sweep for the anti-federal government conservatives. After all, members of the Supreme Court cannot be held accountable for their actions, short of impeachment. So why would they care whether they look like they’re “balanced”?

So much for my theory.

On the other hand, a political version of one of the laws of quantum physics may be at work on the Court at this very moment. The Heisenberg Principle posits that the mere observation of atomic particles changes their course. Since its astounding determination that the Constitution protects corporate money, the Supreme Court has come under a nearly unprecedented degree of criticism. Perhaps the public scrutiny is beginning to have an effect.

At least two members of the Court itself have said they want to reconsider it (PDF). Justice Anthony Kennedy, the “swing vote” on the bench, may end up unwilling to join in a wholesale re-engineering of constitutional law. Some experts suggest that Chief “Umpire” John Roberts might be sensitive to how history will view his stewardship of the institution.

So I still wouldn’t be surprised to see a “split the difference” strategy play out in June, when the Supreme Court is expected to issue its decisions on both cases, just five months from the election.

Citizens United / Harvey Column / Supreme Court - 04/30/2012

Obama to Corporate Persons: And This is How You Thank Me?

Poor President Obama. Confronted with an economic catastrophe when he took office, he made a decision – well documented here and here, for example – to save the financial industry from its own misdeeds, foregoing the opportunity to obtain from the Wall Street CEOs any kind of quid pro quo for beleaguered taxpayers and homeowners. And what does he get in return?

Wall Street contributions to the President’s re-election campaign are down 68%, reports the New York Times.

There’s also been a drop in financial support from some of those who were all-in to elect him in 2008. Some big-name progressive donors, dismayed by the President’s inability to hold the line on everything from foreclosures to a public health care option (which likely would have survived the Supreme Court’s widely expected invalidation of the health care reform law), are sitting this one out – at least for the moment.

Unfortunately, the worst is yet to come for the President, courtesy of the same Supreme Court. Freed from campaign spending restrictions by the court’s ruling in Citizens United, the highly-skilled right wing corporate apparatus is aiming to raise $500 million in “super PAC” money to beat Obama. Pro-Romney super PACs have already out-raised those supporting the President by a factor of eight.

This comes as no surprise to those familiar with the way big business behaves in public.

If corporations are people, as the Republican majority on the Supreme Court says, then the defining trait of the modern corporate personality is ingratitude. When all the federal bailout programs are totaled up (including indirect assistance like being able to borrow taxpayer money at super-low interest rates), Wall Street and many other firms got somewhere around $14 trillion in financial aid from Washington.

Had that money been put in the hands of the American people, it could have paid off every mortgage, credit card and car loan in the United States.

Like President Obama, we are still waiting for our thank you note from corporate America.

Instead, we get surging credit card interest rates, skyrocketing gas prices, outrageous health insurance premium increases and, adding insult to those injuries, the imposition of undisclosed inflated fees by cell phone, airline and other companies for the dishonest purpose of charging hapless consumers more than the advertised price.

Hence the need for parental supervision of corporate persons, also known as "regulation."

Corporate money had already eroded the democratic process under the patchwork of campaign finance laws that pre-dated Citizens United. Our report, “Sold Out: How Wall Street and Washington Betrayed America” (PDF) gets right to the bottom line. Between 1998 and 2008, Wall Street invested $5 billion in Washington, a combination of money for lobbying and campaign contributions that won deregulation and other policy decisions that enabled the Money Industry to do as it pleased. The ensuing orgy of unbridled speculation came to a halt in 2008 when the big banks threatened to shut down the system unless they got trillions of dollars in loans, tax breaks and other taxpayer bailouts.

But by deregulating corporate money in Citizens United, the U.S. Supreme Court has empowered a crime wave of corporate influence peddling that will dwarf anything this country has ever seen.

Take, for example, Sacramento – California's integrity-free zone.

$ A half-decade-long battle to force health insurance companies to open their books and prove they need rate increases was crushed by industry lobbyists, forcing angry consumers to mount a ballot measure of their own.

$ A package of bills backed by the state’s Attorney General to prevent banks from abusing the home foreclosure process – dubbed the “Homeowners Bill of Rights” – has been blocked by the banking industry, which spent over $70 million on lobbyists and lawmakers in California between 2007 and 2011.

$ A bill that will deregulate telephone service, sponsored by the state’s two biggest phone companies, AT&T and Verizon, is sailing through the state legislature, much as electricity deregulation did in 1998 – to disastrous consequences for California taxpayers.

Once upon a time, average citizens might have had a voice in these policy debates. Now that corporate America is locked and loaded, we don't stand a chance.

Citizens United / Harvey Column / President Barack Obama / Supreme Court - 04/23/2012

President aims to take the money and run

Here’s what President Obama wants you to believe about his relationship to the Supreme Court’s Citizens United ruling and the toxic torrent of corporate cash polluting our politics: “it’s complicated.”

In their ruling, the justices determined that corporations had a free speech right to anonymously contribute as much as they wanted to third-party political action groups that worked in support of candidates, as long as those PACs had no formal connection to the candidate.

On the one hand, the president blasted the court’s ruling less than a week after it was issued, with the justices seated right in front of him, in his January 2010 State of the Union speech, for opening “the floodgates for special interests – including foreign companies – to spend without limit in our elections.”

On the other hand, his campaign decided two years later to “level the playing field” with Republicans and encourage Super PAC support for the president, by allowing cabinet members and senior White House officials to cooperate with a Super PAC that supports their boss.

On yet another hand, the president insisted he would support a constitutional amendment to undo Citizens United.

And on yet still another hand, when the president had the opportunity to actually do something to shed some sunlight on the secretive stash of corporate donations unleashed by Citizens United, by issuing an executive order requiring government contractors to reveal all their political spending, he balked.

When you follow the president’s actions, rather than listen to his words, it’s not complicated at all.

The president and his Democratic Party colleagues are determined to “take the money and run.”

For nearly a year, President Obama had floated the idea of issuing an executive order requiring government contractors to disclose all their political contributions – including contributions to PACs and organizations like the US Chamber of Commerce – when they submit a bid.

The biggest contractors, for the most part, are defense contractors like Lockheed Martin, which smother the politicians in contributions to keep the weapons contracts flowing. In the 2012 cycle, Lockheed’s PAC has spent more than $2 million in contributions that we know of, 59 percent to Republicans and 41 percent to Democrats.

Its contributions go beyond an attempt to win a single weapons contract. What they and the other contractors have been able to do is to purchase the country’s entire debate over defense spending, so that few of our representatives ever raise a peep about whether the expensive defense systems are necessary.

Republicans howled at the President Obama’s proposal, accusing him of attempting to politicize the bidding process. President Obama wanted to know who had made the contributions, the Republicans charged, so he could award bids to the highest-contributing bidders.

While President Obama stewed, the Republicans passed measures in May 2011 to block [m1] an executive order if it was issued.

The venerable Public Citizen organization made a suggestion that would sidestep the Republicans’ stated objection.

Why not, Public Citizen said, limit the disclosure requirement to the winning bidder?

But the president backed off – either because he didn’t want a fight with Republicans or because his fundraisers reminded him he had a tough campaign ahead and the little people they dote on with their solicitation emails weren’t going to be able to foot the bill.

On the most critical issue facing our political system, the president of the United States is incapable of leveling with the American people.

President Obama may want to do the right thing, but he is trapped in a system controlled by big money that is bigger than he is.

The first step to fight back against that system won’t come from Washington. It will come from building a grassroots movement to undo Citizens United. Read more about it, and our proposed constitutional amendment, which is easy to understand and will withstand any legal challenge, here.

Citizens United / Congress / Martin Column - 04/13/2012

Corporations Gone Wild

It’s a magnificent time to be alive – if you’re a giant corporation, that is.

Spring is here, and after a deep chill, the mighty mega-businesses are not merely reborn, but blossoming. “Big U.S. companies have emerged from the recession more productive, more profitable, flush with cash and less burdened by debt,” swoons the Wall Street Journal. The seductively sweet smell of speculation – in mortgages, derivatives, oil, wheat – once again fills the air. Amidst the giddy exuberance of the stock market, why dwell on the dreary conditions among the human population, where one out of every six Americans lives below the poverty line, one of every ten is out of work, and one of every five homes are worth less than the loans that secure them?

Oh to be young, free and incorporated – preferably in an island like Bermuda.

Being a Big Business wasn’t always so much fun. For a long time, corporations had to obey the same rules as the rest of us. And after Wall Street drove America into a ditch four years ago, Corporate America was hurting, too. True, many of us never really thought of inanimate objects as capable of suffering. And come to think of it, I never did meet a homeless corporation (though I’ve encountered many a crooked one). But with bailouts, special tax breaks, and the ability to borrow taxpayer money from the Fed at .05% interest, that painful period didn't last very long.

And then, in 2010, the U.S. Supreme Court decreed in the infamous Citizens United case that under the U.S. Constitution, corporations are the same as people and spending money is a form of free speech. So when corporations write checks, it’s the same as you and me speaking. And corporations have the right, under the First Amendment, to use money to buy public officials and purchase elections.

Corporate America’s been partying like its in Ft. Lauderdale on Spring Break ever since.

As you might expect from a climate of unrestrained corporate debauchery, there’ve been some ill-fated hook-ups, like AT&T and T-Mobile (the annulment cost $4 billion). But don’t worry about a newly rejuvenated Ma Bell not having any BFFs. Its 100 million customers literally cannot dump the company, at least not without paying a massive “early termination fee.” AT&T’s allies on the Supreme Court ruled last year that the company can strip you of your right to take it to court, leaving you no way to sever the relationship if your service fails, your “unlimited” data plan gets throttled, or you get overcharged.

Big businesses were screwing people way before Citizens United and Concepcion v. AT&T, of course. But those decisions fundamentally altered the balance of power between citizens and corporations in the courts, Congress and the executive branch.

Philosophers, scientists and science fiction writers have long predicted that the moment would come when artificial creatures, created by humans, would become more intelligent than humans – a technological "singularity" projected to arrive later this century. But no one would have guessed that 2010 would become the date of the political singularity – the year in which a legal construct – a corporation – would become more politically powerful than humans.

That corporations don’t yet have all the benefits of personhood misses the point. Justice Stevens’ dissent in Citizens United warned: “Under the majority's view, I suppose it may be a First Amendment problem that corporations are not permitted to vote, given that voting is, among other things, a form of speech.” But corporations don’t need to vote. Corporations decide who gets elected simply by dumping vast quantities of cash into elections on behalf of candidates who will do their bidding.

As a student of American civic life named Tony Montana once explained, “In this country, you gotta make the money first. Then when you get the money, you get the power.”

Citizens United / Harvey Column / Uncategorized - 04/12/2012