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Context of 'January 21, 2010: Republicans Celebrate ‘Citizens United’ Decision, Call It Victory for Free Speech'

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After years of battling Republican filibuster efforts and other Congressional impediments, the Bipartisan Campaign Reform Act of 2002 is signed into law. Dubbed the “McCain-Feingold Act” after its two Senate sponsors, John McCain (R-AZ) and Russ Feingold (D-WI), when the law takes effect after the 2002 midterm elections, national political parties will no longer be allowed to raise so-called “soft money” (unregulated contributions) from wealthy donors. The legislation also raises “hard money” (federal money) limits, and tries, with limited success, to eliminate so-called “issue advertising,” where organizations not directly affiliated with a candidate run “issues ads” that promote or attack specific candidates. The act defines political advertising as “electioneering communication,” and prohibits advertising paid for by corporations or by an “unincorporated entity” funded by corporations or labor unions (with exceptions—see June 25, 2007). To a lesser extent, the BCRA also applies to state elections. In large part, it supplants the Federal Election Campaign Act (FECA—see February 7, 1972, 1974, May 11, 1976, and January 8, 1980). [Federal Election Commission, 2002; Center for Responsive Politics, 2002 pdf file; Connecticut Network, 2006 pdf file]
Bush: Bill 'Far from Perfect' - Calling the bill “far from perfect,” President Bush signs it into law, taking credit for the bill’s restrictions on “soft money,” which the White House and Congressional Republicans had long opposed. Bush says: “This legislation is the culmination of more than six years of debate among a vast array of legislators, citizens, and groups. Accordingly, it does not represent the full ideals of any one point of view. But it does represent progress in this often-contentious area of public policy debate. Taken as a whole, this bill improves the current system of financing for federal campaigns, and therefore I have signed it into law.” [Center for Responsive Politics, 2002 pdf file; White House, 3/27/2002]
'Soft Money' Ban - The ban on so-called “soft money,” or “nonfederal contributions,” affects contributions given to political parties for purposes other than supporting specific candidates for federal office (“hard money”). In theory, soft money contributions can be used for purposes such as party building, voter outreach, and other activities. Corporations and labor unions are prohibited from giving money directly to candidates for federal office, but they can give soft money to parties. Via legal loopholes and other, sometimes questionable, methodologies, soft money contributions can be used for television ads in support of (or opposition to) a candidate, making the two kinds of monies almost indistinguishable. The BCRA bans soft money contributions to political parties. National parties are prohibited from soliciting, receiving, directing, transferring, and spending soft money. State and local parties can no longer spend soft money for any advertisements or other voter communications that identify a candidate for federal office and either promote or attack that candidate. Federal officeholders and candidates cannot solicit, receive, direct, transfer, or spend soft money in connection with any election. State officeholders and candidates cannot spend soft money on any sort of communication that identifies a candidate for federal office and either promotes or attacks that candidate. [Legal Information Institute, 12/2003; ThisNation, 2012]
Defining 'Issue Advertisements' or 'Electioneering Communications' - In a subject related to the soft money section, the BCRA addresses so-called “issue advertisements” sponsored by outside, third-party organizations and individuals—in other words, ads by people or organizations who are not candidates or campaign organizations. The BCRA defines an “issue ad,” or as the legislation calls it, “electioneering communication,” as one that is disseminated by cable, broadcast, or satellite; refers to a candidate for federal office; is disseminated in a particular time period before an election; and is targeted towards a relevant electorate with the exception of presidential or vice-presidential ads. The legislation anticipates that this definition might be overturned by a court, and provides the following “backup” definition: any broadcast, cable, or satellite communication which promotes or supports a candidate for that office, or attacks or opposes a candidate for that office (regardless of whether the communication expressly advocates a vote for or against a candidate).
Corporation and Labor Union Restrictions - The BCRA prohibits corporations and labor unions from using monies from their general treasuries for political communications. If these organizations wish to participate in a political process, they can form a PAC and allocate specific funds to that group. PAC expenditures are not limited.
Nonprofit Corporations - The BCRA provides an exception to the above for “nonprofit corporations,” allowing them to fund electioneering activities and communications from their general treasuries. These nonprofits are subject to disclosure requirements, and may not receive donations from corporations or labor unions.
Disclosure and Coordination Restrictions - This part of the BCRA amends the sections of FECA that addresses disclosure and “coordinated expenditure” issues—the idea that “independent” organizations such as PACs could coordinate their electioneering communications with those of the campaign it supports. It includes the so-called “millionaire provisions” that allow candidates to raise funds through increased contribution limits if their opponent’s self-financed personal campaign contributions exceed a certain amount.
Broadcast Restrictions - The BCRA establishes requirements for television broadcasts. All political advertisements must identify their sponsor. It also modifies an earlier law requiring broadcast stations to sell airtime at its lowest prices. Broadcast licensees must collect and disclose records of purchases made for the purpose of political advertisements.
Increased Contribution Limits - The BCRA increases contribution limits. It also bans contributions from minors, with the idea that parents would use their children as unwitting and unlawful conduits to avoid contribution limits.
Lawsuits Challenge Constitutionality - The same day that Bush signs the law into effect, Senator Mitch McConnell (R-KY) and the National Rifle Association (NRA) file lawsuits challenging the constitutionality of the BCRA (see December 10, 2003). [Legal Information Institute, 12/2003]

Entity Tags: Russell D. Feingold, Mitch McConnell, John McCain, National Rifle Association, George W. Bush, Bipartisan Campaign Reform Act of 2002

Timeline Tags: Civil Liberties

Many Republican lawmakers and their supporters celebrate the controversial Citizens United decision by the US Supreme Court (see January 21, 2010), which allows corporations and labor unions to spend unrestricted amounts of money in support of, or opposition to, federal candidates. Most observers believe that Republicans will benefit from the ruling, as large corporations who can now spend large amounts on influencing elections tend to support more conservative candidates and causes (see January 21-22, 2010). Most Republicans who praise the decision do not mention the presumed financial advantage they may now enjoy, but instead focus on the issue as one of freedom of speech. Senator John Cornyn (R-TX) says of the decision: “It is about a nonprofit group’s ability to speak about the public issue. I can’t think of a more fundamental First Amendment issue. [The ruling could] open up resources that have not previously been available [for Republicans].” Representative Steve King (R-IA) says: “The Constitution protects the rights of citizens and employers to express their viewpoints on political issues. Today’s Supreme Court decision affirms the Bill of Rights and is a victory for liberty and free speech.” Fellow Republican House member Mike Pence (R-IN) agrees: “If the freedom of speech means anything, it means protecting the right of private citizens to voice opposition or support for their elected representatives. The fact that the Court overturned a 20-year precedent speaks volumes about the importance of this issue.” Senate Minority Leader Mitch McConnell (R-KY) says the ruling is a big step towards “restoring the First Amendment rights [of corporations and unions].… By previously denying this right, the government was picking winners and losers.” Republican National Committee (RNC) chairman Michael Steele says: “Today’s decision by the Supreme Court in Citizens United v. FEC serves as an affirmation of the constitutional rights provided to Americans under the first amendment. Free speech strengthens our democracy.” And US Senate candidate Marco Rubio (R-FL) says, “Today’s SCOTUS decision on McCain-Feingold is a victory for free speech.” One of the few Republicans to speak against the decision is Senator Olympia Snowe (R-ME), who calls it “regrettable” and “disappointing.” Snowe is joined in her criticism by fellow Senator John McCain (R-AZ), the co-author of the legislation partially overturned by the ruling (see March 27, 2002), who also says he is “disappointed” by the decision. [Associated Press, 1/21/2010; Think Progress, 1/22/2010]

Entity Tags: Mike Pence, John Cornyn, John McCain, Marco Rubio, Michael Steele, Olympia Snowe, Steve King, Mitch McConnell

Timeline Tags: Civil Liberties

The Wall Street Journal celebrates the Citizens United Supreme Court decision (see January 21, 2010) as a victory for “free speech” (see January 21, 2010). In an unsigned editorial, the Journal celebrates the decision by stating that the Court used the Constitution to “rescue” the political system from “marauding government” elements, particularly a “reckless Congress.” The Journal claims that the Citizens United case rested on the Federal Election Commission (FEC)‘s refusal to allow the airing of a 90-minute political attack documentary on presidential candidate Senator Hillary Clinton (D-NY) because the film was “less than complimentary” of her. In reality, the FEC considered the film “electioneering” by the organization that released the film, Citizens United, and prohibited it from being shown on pay-per-view cable access (see January 10-16, 2008). The Court rejected campaign finance law’s limitation on corporate spending, prompting the Journal to state, “Corporations are entitled to the same right that individuals have to spend money on political speech for or against a candidate.” Any other state of affairs, the Journal writes, constitutes censorship. The Journal criticizes President Obama for speaking out against the decision (see January 21, 2010), saying that Obama put “on his new populist facade to call it ‘a major victory for big oil, Wall Street banks, health insurance companies,’ and other ‘special interests.’ Mr. Obama didn’t mention his union friends as one of those interests, but their political spending will also be protected by the logic of this ruling. The reality is that free speech is no one’s special interest.” The Journal dismisses promises by Congressional Democrats to pass legislation or even bring forth a constitutional amendment limiting corporate donations by stating, “Liberalism’s bullying tendencies are never more on display than when its denizens are at war with the speech rights of its opponents.” The Journal concludes by advocating that the Court overturn its 1976 Buckley v. Valeo decision (see January 30, 1976) that placed modest limits on corporate spending, in essence advocating the complete deregulation of campaign financing. “The Court did yesterday uphold disclosure rules, so a sensible step now would be for Congress to remove all campaign-finance limits subject only to immediate disclosure on the Internet,” the Journal states. “Citizens United is in any event a bracing declaration that Congress’s long and misbegotten campaign-finance crusade has reached a constitutional dead end.” [Wall Street Journal, 1/22/2010]

Entity Tags: Citizens United, Barack Obama, Wall Street Journal, US Supreme Court, Hillary Clinton, Federal Election Commission

Timeline Tags: Civil Liberties

Jan Witold Baran.Jan Witold Baran. [Source: Metropolitan Corporate Counsel]Author and law professor Jan Witold Baran cheers the Citizens United decision by the Supreme Court that allows virtually unlimited spending by corporations and labor unions in political campaigns (see January 21, 2010). Baran, who alerts readers that he filed an amicus curiae brief with the Court in favor of plaintiff Citizens United, characterizes the ruling as allowing “corporations and unions [to] spend money on political advertising that urges the election or defeat of a candidate for public office.” He cites President Obama’s warning that the decision will unleash a “stampede of special-interest money in our politics” (see January 24, 2010), and derides that warning. He reminds readers that the decision retains the ban on direct contributions by corporations and unions, and that corporations and unions may not “spend money in cahoots with political parties,” but must remain “independent” and not coordinate with candidates or their campaigns. He also tells readers that the decision mandates disclosure, saying that the ruling “upheld the laws that require any corporate or union spender to file reports with the Federal Election Commission within 24 hours of spending the first dime.” Because of these retentions, Baran writes, there will be no “stampede of special-interest money.” The ruling will put an end to so-called “issue ads,” Baran predicts (see March 27, 1990 and June 25, 2007), the ads that either support or attack an issue and then urge the viewer to contact their congressperson. Because of the new ruling, the ads can now exhort viewers to vote for one candidate or against another because of the issues. Baran goes on to write, “There is also no factual basis to predict that there will be a ‘stampede’ of additional spending.” Twenty-six states and the District of Columbia already have laws permitting some corporate and union spending, he says, and notes: “There have been no stampedes in those states’ elections. Having a constitutional right is not the same as requiring one to exercise it, and there are many reasons businesses and unions may not spend much more on politics than they already do. As such, the effect of Citizens United on the 2010 campaigns is debatable.” He says that the ruling is primarily a blowback against Congress’s meddlesome penchant to restrict “campaign speech.… Congress interpreted its power to regulate campaigns as a license to limit, restrict, burden, and confuse anyone who wished to engage in political campaigns.” Now, he says, the Court has reminded Congress that the First Amendment trumps its ability to regulate (see January 21, 2010 and January 22, 2010). The ruling is “a breath of fresh air” for everyone except Washington lawyers, Baran says, and concludes: “The history of campaign finance reform is the history of incumbent politicians seeking to muzzle speakers, any speakers, particularly those who might publicly criticize them and their legislation. It is a lot easier to legislate against unions, gun owners, ‘fat cat’ bankers, health insurance companies, and any other industry or ‘special interest’ group when they can’t talk back.” [New York Times, 1/25/2010; Wiley Rein LLP, 2012] Many observers besides Obama predict dire consequences as a result of the Court ruling (see January 21, 2010, January 21, 2010, January 21, 2010, January 21, 2010, January 21, 2010, January 21, 2010, January 21-22, 2010, January 21, 2010, and January 26, 2010). And unfortunately for Baran’s predictions, a March 2010 appeals court verdict (see March 26, 2010) will join with the Citizens United ruling, particularly a loophole in the ruling (see February 27, 2010), to unleash just the kind of corporate spending that Baran says would never happen.

Entity Tags: US Supreme Court, Barack Obama, Jan Witold Baran, Federal Election Commission

Timeline Tags: Civil Liberties

Some “tea party” leaders express their dislike of the Supreme Court’s recent Citizens United decision allowing unlimited corporate spending in elections (see January 21, 2010), a position that puts them at odds with the Republican Party and mainstream US conservatism. Hours after the decision was handed down, Republican National Committee chair Michael Steele hailed it as “an important step in the direction of restoring the First Amendment rights” of corporations (see January 21, 2010, January 22, 2010, and February 2, 2010), but some tea partiers see the decision much differently. Texas tea party activist Shane Brooks says in an email to Talking Points Memo reporter Zachary Roth: “This decision basically gives the multinational corporations owned by foreign entities [the right] to pour unlimited funds into the pockets of corrupt corporate backed politicians to attack everything this country stands for. We might as well be able to vote for Disney or the SEIU as president of the United States of America.” Nashville Tea Party official Kevin Smith recently wrote that the ruling “puts corporations in a position to crowd out smaller competition and buy politicians from the local sheriff to the president himself.” Dale Robertson, the leader of TeaParty.org, said after the decision: “It just allows them to feed the machine. Corporations are not like people. Corporations exist forever, people don’t. Our founding fathers never wanted them; these behemoth organizations that never die, so they can collect an insurmountable amount of profit. It puts the people at a tremendous disadvantage.” Sacramento tea party activist Jim Knapp tells Roth: “Most of the anger by tea party supporters is directed at the effects of special interest money.… I believe that campaign finance reform is the most important political issue facing America. I would even go so far as to say that this issue is even more important that our current financial crisis and jobs. Everything in American politics is affected by special interest money. From who controls our monetary policies in treasury and the Fed to regulation of Wall Street. I would also venture to say that it was special interest money which precipitated the current economic crisis.” Everett Wilkinson, the leader of a Florida tea party group, tells Roth that his group has “mixed feelings” about the ruling. On the one hand, he says, “getting corporations more involved with politics could be a detrimental thing.” The ruling also upholds free speech, he counters. FreedomWorks, the lobbying organization that helped found the tea party movement, and officials of the Tea Party Patriots refuse to speak to the issue with Roth. The reporter writes: “[T]heir opposition to the Court’s ruling on behalf of corporations hints at an ideological split between the movement and the GOP that has long existed under the surface. Tea Partiers—especially the rank-and-file activists, as opposed to the movement leaders—often embrace a more populist, anti-corporate position than does the Republican Party, or the conservative movement that under-girds it. This difference underlies much of the tension we’re increasingly seeing between Tea Partiers and the GOP.” [TPM Muckraker, 2/3/2010]

Entity Tags: Kevin Smith, Dale Robertson, Everett Wilkinson, Jim Knapp, Republican Party, US Supreme Court, Michael Steele, Zachary Roth, FreedomWorks, Shane Brooks

Timeline Tags: Civil Liberties

US Chamber of Commerce President and CEO Thomas Donahue blasts Senate Democrats for attempting to pass the DISCLOSE Act, which, if approved by Congress and signed into law by President Obama, would force the disclosure of the identities of corporate political donors. The DISCLOSE Act was proposed by Congressional Democrats in response to the Supreme Court’s controversial Citizens United decision that allows virtually unlimited and anonymous political spending by corporations and other entities (see January 21, 2010). The USCOC, a trade organization that spends heavily on Republican causes, is one of the “independent” organizations that would be most affected by the DISCLOSE Act (see January 21-22, 2010). Donahue, whose organization is lobbying members of Congress against the bill, says that the bill would infringe upon constitutional guarantees of free speech (see January 21, 2010) because it requires donors to state publicly their political positions, which not every organization or individual wishes to do. “The fact that this assault to the First Amendment is being considered as millions are desperately looking for work is a complete outrage,” Donahue says in a statement. “Despite their best efforts, there is no back room dark enough, no partisan motive strong enough, and no cynicism profound enough to barter away Americans’ freedom of speech.” [The Hill, 7/26/2010] Senate Republicans will successfully block the bill from coming to a vote (see July 26-27, 2010).

Entity Tags: US Chamber of Commerce, Barack Obama, DISCLOSE Act of 2010, Thomas Donahue, US Supreme Court, US Congress

Timeline Tags: Civil Liberties

The press learns that the Obama administration is considering having President Obama (see January 27-29, 2010) issue an executive order that would force federal contractors to disclose donations over $5,000 to political organizations. Such firms seeking government contracts would be required to disclose contributions to groups that air political ads either attacking or supporting candidates. Both Republicans and Democrats say that if issued, the order would have an immediate effect. Groups such as the US Chamber of Commerce (USCOC), a large Republican donor that has made large undisclosed donations to Republican-supporting candidates and organizations (see January 21-22, 2010 and October 2010), attacks the White House over the considered executive order, saying it proves Obama is using his executive power to punish political adversaries and reward supporters. USCOC spokesperson Blair Latoff calls the proposed order “an affront to the separation of powers [and] to free speech” (see January 21, 2010) that would create a litmus test for companies wanting to work with the federal government. The order, Latoff adds, could mean “prospective contractors that fund political causes unpopular with the government or the current administration may find that they don’t get a contract award due to political discrimination.” Republican senators will raise the same concerns in a letter sent to the White House the next day. Lawyer Jan Baran, who has worked for both the USCOC and Republican interests, acknowledges that the order could curtail fundraising attempts for the 2012 elections. White House officials and Congressional Democrats say the order would prevent the 2012 elections from being taken over by wealthy anonymous donors on both sides of the political aisle. Fred Wertheimer of Democracy 21, a nonprofit group that favors stricter campaign finance rules, says, “The fact that Congressional Republicans may oppose disclosure does not mean that efforts to obtain it are, by definition, partisan.” [United Press International, 4/20/2011; Los Angeles Times, 4/21/2011; New York Times, 4/27/2011] A week later, Bruce Josten, the top lobbyist for the USCOC, will assail Obama and the White House over the proposed executive order, telling a reporter that the organization “is not going to tolerate” what it considers a “backdoor attempt” by the White House to silence private-sector opponents by disclosing their political spending. Josten will even indirectly compare Obama to Libyan leader Mu’ammar al-Qadhafi; citing the Obama administration’s efforts to hasten the deposing of al-Qadhafi, Josten will say of the order: “We will fight it through all available means. To quote what they say every day on Libya, all options are on the table.” White House spokesman Jay Carney will say in response to Josten’s attack, “What the president is committed to is transparency, and he certainly thinks that the American taxpayer should know where his or her money is going.” Josten is joined by the Business Roundtable, a powerful business association made up of a number of chief executives, which will call the proposed order “yet another example of regulatory over-reach,” and will claim the order would increase paperwork and drive up costs for businesses. [Think Progress, 4/27/2011] Lee Fang, a reporter for the liberal news Web site Think Progress, will write that the executive order could have a powerful impact on the USCOC. “[T]he White House’s disclosure rule threatens the entire existence of the Chamber,” Fang will write. “This is because the Chamber only exists to hide the identity of corporations seeking to fight nasty political battles without having their name or brand exposed. As the Wall Street Journal noted, the Chamber’s ‘most striking innovation has been to offer individual companies and industries the chance to use the chamber as a means of anonymously pursuing their own political ends.’ The Chamber’s members include defense contractors, bailed out banks, and other donors likely to be affected by the government contractor campaign disclosure rule.” Fang will also cite a recent plan by the USCOC to sabotage organizations that support Obama and Democratic candidates by using legally questionable tactics such as false entrapment strategies and even computer hacking (see February 10, 2011). The funding for the scheme was never made public. He also cites recent monies secured by the USCOC from foreign entities that, because of the Citizen United decision, could be flowing into US political activities without disclosure (see October 2010). [Think Progress, 4/27/2011] Republicans in Congress will move to pass legislation that would thwart the order, if it is ever issued (see May 26, 2011 and July 15, 2011).

Entity Tags: Barack Obama, Fred Wertheimer, Blair Latoff, Business Roundtable, Jan Witold Baran, US Chamber of Commerce, Lee Fang, Wall Street Journal, Mu’ammar al-Qadhafi, Obama administration, Bruce Josten

Timeline Tags: Civil Liberties

The Tennessee State Legislature approves a bill, SB1915, that allows for direct corporate donations to political candidates. The bill also raises the amount that can be given by contributors by around 40 percent. Corporations will be treated as political action committees (PACs—see 1944 and February 7, 1972). The original bill was sponsored by Senate Speaker Pro Tempore Jamie Woodson (R-Knoxville) and passed by a party-line vote, with Republicans voting for passage and Democrats against. House Democratic Caucus Chairman Mike Turner objected to the bill, saying that foreign-based corporations could also contribute under it; House sponsor Glen Casada (R-College Grove) responds by saying that such corporations would have to have a presence in Tennessee to make such contributions. Turner says after the bill passes: “It’s going to be like an arms race with Democrats and Republicans trying to compete for this corporate cash. I just think it’s wrong. I think it’s un-American. Tennessee will rue the day we’ve done this.” For his part, Casada says the bill will lessen candidate dependence on PACs and provide more money to “educate voters.” He adds, “More money is more free speech.” Woodson says the law follows directly from the controversial Citizens United decision by the US Supreme Court (see January 21, 2010), which allows corporations and labor unions to spend unrestricted amounts of money in support of, or opposition to, federal candidates. Republicans lauded the decision by saying it promoted free speech (see January 21, 2010). The Tennessee State Legislature approved a law similar to the Citizens United decision in 2010. The new bill authorizes corporations to give directly to candidates and political parties. Tennessee has long banned such corporate contributions. [Nashville City Paper, 4/26/2011; Knoxville News-Sentinel, 4/27/2011] Governor Bill Haslam (R-TN) will sign the law into effect. Republicans claim the law will “equalize” contributions, and remove the “advantage” in donations from labor unions enjoyed by Democrats. “This basically would just level the playing field, because unions are allowed to do this by statute now,” says Senator Bill Ketron (R-Murfreesboro). However, in October 2010, reporter Tom Humphrey showed that corporate and PAC donations favored Republicans by as much as a 3-1 margin, an advantage not overcome by union contributions. [Knoxville News-Sentinel, 10/29/2010; Nashville City Paper, 4/26/2011]

Entity Tags: Jamie Woodson, Bill Ketron, Tennessee State Legislature, Tom Humphrey, Glen Casada, William Edward (“Bill”) Haslam, US Supreme Court, Mike Turner

Timeline Tags: Civil Liberties

The US Supreme Court strikes down part of an Arizona law providing public funding for political campaigns. In the case of Arizona Free Enterprise Club’s Freedom PAC v. Bennett, the Court rules 5-4 that a provision in Arizona law providing additional funds to publicly funded candidates whose opponents use private donations to outspend them is illegal. Some opponents of unfettered outside spending feared that the Court would use the case to put an end to most, if not all, programs that provide public money to candidates; Think Progress’s Ian Millhiser explains: “Candidates will only agree to accept public financing if it won’t prevent them from running a competitive race. If a state offers only a few thousand dollars in public funds to a candidate whose opponent is backed by tens of millions of corporate dollars, then the non-corporate candidate will have no choice but to raise money on their own. To defend against this problem, Arizona developed a two-tiered public financing system. Candidates receive additional funds if their opponent or corporate interest groups overwhelm them with attack ads, and thus candidates who are determined not to be tainted by the corrupting influence of major donors are not left defenseless.” The ruling will not have an impact on the presidential race, since the federal public financing system lacks such a provision, and since it seems unlikely that either President Obama or his Republican challenger Mitt Romney (R-MA) will use public financing in 2012. The case was brought by two organizations, the Institute for Justice and the Goldwater Institute, on behalf of Arizona state candidates who rejected public funds. The groups argued that the provision infringed on those candidates’ freedom of speech by compelling them to spend less money to avoid triggering the additional funds.
Majority, Minority Opinions - Writing for the majority, Chief Justice John Roberts agreed: “We hold that Arizona’s matching funds scheme substantially burdens protected political speech without serving a compelling state interest and, therefore, violates the First Amendment.” The matching funds provision “imposes an unprecedented penalty on any candidate who robustly exercises [his] First Amendment right[s],” Roberts adds. If the provision is allowed to stand, “the vigorous exercise of the right to use personal funds to finance campaign speech” leads to “advantages for opponents in the competitive context of electoral politics.” The privately funded candidate, Roberts writes, must “shoulder a special and potentially significant burden” when choosing to exercise his First Amendment right to spend funds on behalf of his candidacy. Justice Elena Kagan dissents, writing that the plaintiffs “are making a novel argument: that Arizona violated their First Amendment rights by disbursing funds to other speakers even though they could have received—but chose to spurn—the same financial assistance. Some people might call that chutzpah.”
Reactions - Attorney Bill Maurer, who represented the Institute for Justice, says the ruling “makes clear that the First Amendment is not an exception to campaign finance laws; it is the rule” (see January 30, 1976 and January 21, 2010). He adds that he hopes the ruling will serve as “a clear reminder to government officials that they may not coerce speakers to limit their own speech.” Millhiser writes: “So public financing laws can technically remain, but Arizona’s attempt to protect publicly financed candidates from a wave of corporate attack ads is absolutely forbidden. Moreover, because few candidates can know in advance whether the will face an onslaught of hostile corporate ads, most candidates will hedge their bets and avoid the risk of public financing.… Without unlimited corporate money in elections, most candidates could afford to take public funds unless their opponent had unusual access to wealth or wealthy donors.” Referring to the 5-4 Citizens United decision (see January 21, 2010), Millhiser continues, “In the post-Citizens United America, however, no one is safe from corporate America’s nearly bottomless pool of potential campaign expenditures.” Nick Nyhart of Public Campaign, an organization opposed to the unrestricted influence of outside donors, says, “The five-vote Big Money majority on the court has spoken again in favor of wealthy special interests.” Fred Wertheimer of the campaign finance group Democracy 21 calls the ruling “another seriously misguided campaign finance decision,” but adds “it does not cast any doubt on the continued viability or constitutionality of a number of other existing public financing systems that do not include ‘trigger funds’ or similar provisions.” Common Cause President Bob Edgar says, “This is not the death knell of public financing.” [Politico, 6/27/2011; Think Progress, 6/27/2011]
Plaintiffs Financed by Wealthy Conservative Interests - The next day, Think Progress’s Lee Fang will reveal that the two groups who filed the lawsuit, the Institute for Justice and the Goldwater Institute, are financed by wealthy conservative interests. The Institute for Justice, a group dedicated to bringing cases to court in order to deregulate private corporations and to increase the participation of wealthy corporate interests in elections, was created with “seed money” from oil billionaire Charles Koch (see 1977-Present, 1979-1980, 1981-2010, 1984 and After, May 6, 2006, April 15, 2009, December 6, 2009, November 2009, July 3-4, 2010, August 28, 2010, August 30, 2010, and September 24, 2010). The Walton Family Foundation, a foundation run by the billionaire family of Arkansas retailer Sam Walton (the founder of Wal-Mart), has donated $1.64 million to the group. The Foundation has written that the Citizens United decision and the Arizona case are two top priorities for the Institute. The Goldwater Institute, one of Arizona’s most prominent conservative think tanks, is focused on rolling back health care reform. The Institute is funded by several foundations, including the Walton and the Charles Koch Foundations. Fang notes that much of the funding for both groups remains undisclosed. [Think Progress, 6/28/2011]

Entity Tags: Fred Wertheimer, Elena Kagan, Bob Edgar, Bill Maurer, Barack Obama, Willard Mitt Romney, Walton Family Foundation, US Supreme Court, Nick Nyhart, Institute for Justice, John G. Roberts, Jr, Ian Millhiser, Goldwater Institute, Lee Fang, Charles Koch

Timeline Tags: Civil Liberties

Law professor John Yoo, who during his tenure at the Justice Department wrote memos defending torture and the right of the executive branch to conduct its business in secret (see March 1996, September 25, 2001, September 25, 2001, October 4, 2001, October 23, 2001, October 23, 2001, November 2, 2001, November 5, 2001, and November 6-10, 2001), co-authors an article for the far-right American Enterprise Institute that attacks the Obama administration for considering the idea of an executive order to require government contractors to disclose their political contributions (see April 20, 2011 and May 26, 2011). The article, by Yoo and lawyer David W. Marston, is entitled “Overruling Citizens United with Chicago-Style Politics,” a reference to some of the unsavory and often-illegal political machinations undertaken by Chicago Democrats. The article repeatedly compares the Obama administration to the Nixon administration’s attempts to “use the available federal machinery to screw [their] political enemies,” as Yoo and Marston quote from a 1971 Nixon White House memo. Yoo and Marston say that the Obama administration, in an effort to recoup its losses from the Citizens United decision (see January 21, 2010]), “is making an unprecedented assault on free speech” by considering the executive order and by pushing the DISCLOSE Act (see July 26-27, 2010). (Yoo and Marston claim that the DISCLOSE Act, if passed into law, “would have forced all those doing business with the government to give up their ability to participate in the political process, as is their right under the First Amendment, aside from just voting on Election Day.”) They write: “Under the guise of ‘transparency’ and ‘accountability,’ the order curtails constitutionally protected speech rights and opens the door for retaliation against those not supporting the administration politically,” and go on to observe that in their opinion, this “assault on free speech” (see January 21, 2010 and January 22, 2010) is being joined by “the media [and] defenders of free speech.” Yoo and Marston claim that the Founding Fathers intended for corporations and other entities to be able to involve themselves in politics entirely anonymously, citing the example of Alexander Hamilton, John Jay, and James Madison publishing the Federalist Papers under the nom de plume “Publius.” Indeed, Yoo and Marston write, “disclosure of political contributions may be a prelude to the thuggish suppression of political speech by harassment and intimidation,” and they cite the instances of boycotts, vandalism, and death threats against people in California who donated money in support of Proposition 8, which declared gay marriage illegal. “Mandated disclosure of financial support for a political viewpoint can become the springboard for lawless retaliation against citizens for holding unpopular views,” the authors write. “Disclosure” and “transparency,” the “wonder drugs du jour,” are already “being used to silence core First Amendment speech rights and to threaten America’s long protection of anonymous political speech,” they contend, and claim that “thugs” are attempting to use violence and intimidation to nullify the Citizens United decision, force the issuance of the Obama executive order, and push the Federal Election Commission (FEC) to expand disclosure requirements. Only allowing financial donors to remain secret, the authors say, protects their rights to free speech and political involvement. “[D]isclosure invites retaliation,” they argue; only secrecy can protect free speech. The authors even cite a case brought on behalf of the NAACP, in which the organization was allowed to keep its membership lists secret for fear of attacks on its members or their families by white supremacists. [American Enterprise Institute, 7/20/2011] Ian Millhiser, a legal expert for the liberal news Web site Think Progress, angrily rebuts Yoo and Marston’s claims. Millhiser, referencing Yoo’s opinions issued during his stint in the Bush administration, writes, “If there is anyone in the universe who should think twice before criticizing a government lawyer for enabling a president to break the law, it is John Yoo.” He goes on to criticize Yoo’s legal thinking in the article, noting that the Citizens United ruling held that “disclosure could be justified based on a governmental interest in ‘provid[ing] the electorate with information’ about the sources of election-related spending.” Millhiser writes: “President Obama’s proposed executive order provides the electorate with information about the sources of election-related spending. So Yoo’s entire argument can be rebutted in exactly two sentences.” After rebutting other portions of Yoo and Marston’s arguments, Millhiser concludes, “Yoo’s defense of corporate America’s power to secretly buy elections is weak even by his own tragically incompetent standards.” [Think Progress, 7/22/2011]

Entity Tags: Ian Millhiser, American Enterprise Institute, DISCLOSE Act of 2010, Federal Election Commission, Nixon administration, US Department of Justice, John C. Yoo, David W. Marston, Obama administration

Timeline Tags: Civil Liberties

Representatives John Yarmuth (D-NY) and Walter Jones (R-NC) file a bill, the Yarmuth-Jones Disclose Act, that would amend the US Constitution to overturn the Citizens United ruling (see January 21, 2010) and take special-interest money out of American politics. The proposed amendment establishes that financial expenditures and in-kind contributions do not qualify as protected free speech under the First Amendment (see January 30, 1976, April 26, 1978, June 25, 2007, June 26, 2008, January 21, 2010, January 21, 2010, January 22, 2010, March 26, 2010, and December 12, 2011). It also makes Election Day—the first Tuesday in November—a legal holiday, and enables Congress to establish a public financing system that would serve as the sole source of funding for federal elections (see 1974, January 26, 2011 and After, June 27, 2011, and December 1, 2011). Yarmuth explains his proposal in the context of the Citizens United case, saying: “Corporate money equals influence, not free speech. The last thing Congress needs is more corporate candidates who don’t answer to the American people. Until we get big money out of politics, we will never be able to responsibly address the major issues facing American families—and that starts by ensuring our elections and elected officials cannot be bought by the well-off and well-connected.” Jones says in a statement: “If we want to change Washington and return power to the citizens of this nation, we have to change the way campaigns are financed. The status quo is dominated by deep-pocketed special interests, and that’s simply unacceptable to the American people.” Jones is one of the very few Republicans in Congress who is willing to advocate for campaign finance reform. It is unlikely the bill will pass the Republican-controlled House, and Senate Republicans would likely block it if it made it to that chamber. Amendments to the Constitution require a two-thirds vote in both chambers of Congress before being approved by three-fourths of state legislatures. [US House of Representatives, 12/20/2011; WFPL, 12/20/2011; Think Progress, 12/20/2011] This is not the first attempt to amend the Constitution to overturn Citizens United and regulate campaign financing (see September 20, 2011, November 23, 2010, November 1, 2011, and November 18, 2011).

Entity Tags: Walter Jones, 2012 Yarmuth-Jones Disclose Act, John Yarmuth

Timeline Tags: Civil Liberties

The Montana Supreme Court rules 5-2 in the case of Western Tradition Partnership v. Bullock that a century-old law prohibits corporate spending in state and federal elections conducted within the state. The ruling seems to challenge the US Supreme Court’s Citizens United ruling (see January 21, 2010). The case stems from a challenge by a “social welfare organization,” Western Tradition Partnership (WTP, which changed its name to American Tradition Partnership after the original lawsuit was filed), joined by two other corporate entities, to Montana’s 1912 Corrupt Practices Act (CPA). The law banned corporate spending in elections, after two out-of-state copper industry magnates attempted to “buy” the Montana legislature by pouring money into the 1894 state elections. The law declares that “corporations may not make… an expenditure in connection with a candidate or a political committee that supports or opposes a candidate or a political party.” The Montana Supreme Court finds that the CPA is needed to ensure the integrity of Montana’s elections, and to make sure that citizens and not corporations are running the state. However, the Court acknowledges that its ruling conflicts with the Citizens United decision, though it says that the Citizens United decision allows for restrictions on corporate political speech if the government can demonstrate that the restrictions are as minimal as possible to achieve a compelling governmental interest. The Montana Court rules that because of Montana’s history of corporate vote-buying and the narrow restrictions of the CPA, the law should stand. It also notes that Western Tradition Partnership argued in its original suit that disclosure laws, as opposed to outright bans, would serve the public interest and guard against corruption; however, the organization is currently involved in another lawsuit in which it argues that those same disclosure laws are unconstitutional restrictions of the freedom of speech. [Western Tradition Partnership v. Bullock et al, 12/30/2011 pdf file; Los Angeles Times, 1/4/2012; Reuters, 6/25/2012; OMB Watch, 6/25/2012; Washington Post, 6/25/2012; OMB Watch, 7/10/2012] Even one of the dissenters, Justice James C. Nelson, disagrees with the Citizens United characterizations that corporations are legally people, writing: “Corporations are not persons. Human beings are persons, and it is an affront to the inviolable dignity of our species that courts have created a legal fiction which forces people—human beings—to share fundamental, natural rights with soulless creatures of government. Worse still, while corporations and human beings share many of the same rights under the law, they clearly are not bound equally to the same codes of good conduct, decency, and morality, and they are not held equally accountable for their sins. Indeed, it is truly ironic that the death penalty and hell are reserved only to natural persons.” WTP’s director Donald Ferguson says after the decision that the case hinges on freedom of speech (see January 21, 2010): “The current state law says that if you own a business and you would like to use the resources of the business to speak out about how you see the law, you essentially have to ask prior permission from the state. Under the current regime, the state regulatory agencies and the newspapers basically have a monopoly on information. We’re simply trying to put more free speech in motion.” [Los Angeles Times, 1/4/2012; Huffington Post, 1/4/2012]
Legal Scholars Anticipate Montana Ruling to be Overturned - Paul Ryan of the Campaign Legal Center calls the Montana high court’s ruling “an antidote to the crabbed view of corruption” displayed in Citizens United. Ryan, like many others, anticipates the US Supreme Court will overturn today’s ruling. [Huffington Post, 1/4/2012] One of those others is law professor Richard Hasen, who writes: “[I]f the Court were being honest in Citizens United, it would have said something like: ‘We don’t care whether or not independent spending can or cannot corrupt; the First Amendment trumps this risk of corruption.’ But the Court didn’t say that, because it would have faced even greater criticism than it already has. So it dressed up its value judgment (no corruption ‘implied in law’) as a factual statement. The Montana Supreme Court called SCOTUS [the US Supreme Court] on this. And when SCOTUS reverses, the disingenuousness of this aspect of CU will be on full display for all.” Hasen is referring to the Court’s finding in Citizens United that independent spending in elections does not legally imply corruption. [Rick Hasen, 1/1/2012]
Appeal to Supreme Court - Attorneys for WTP and the other corporate plaintiffs will appeal to the US Supreme Court on the grounds that Montana is bound by the Citizens United decision and that the decision applies to state as well as federal elections. Attorney James Bopp, in filing the appeal, will say: “If Montana can ban core political speech because of Montana’s unique characteristics, free speech will be seriously harmed. Speakers will be silenced because of corruption by others over a century ago.” The US Supreme Court will quickly issue a stay of that decision. [Reuters, 6/25/2012; OMB Watch, 6/25/2012] When the case reaches the US Supreme Court, the name of the plaintiff will change into “American Tradition Partnership,” and the Court’s documentation will reflect that change. The Court will overrule the Montana decision (see June 25, 2012). After the decision, American Tradition Partnership’s Web site will disappear, but the liberal accountability organization SourceWatch will describe the organization’s parent, the American Tradition Institute, as described in the group’s mission statement: “a public policy research and educational foundation… founded in 2009 to help lead the national discussion about environmental issues, including air and water quality and regulation, responsible land use, natural resource management, energy development, property rights, and free-market principles of stewardship.” ATI and its affiliates are pro-development and against expanded environmental regulation, according to SourceWatch’s documentation, made up of “a broader network of groups with close ties to energy interests that have long fought greenhouse gas regulation.” [SourceWatch, 2012]

Entity Tags: American Tradition Institute, American Tradition Partnership, Donald Ferguson, James C. Nelson, 1912 Corrupt Practices Act (Montana), SourceWatch, US Supreme Court, Paul S. Ryan, Montana Supreme Court, James Bopp, Jr, Richard L. Hasen

Timeline Tags: Civil Liberties

Former Republican presidential candidate Tim Pawlenty (R-MN), now a supporter of Republican frontrunner Mitt Romney (R-MA), tells a reporter from the liberal news Web site Think Progress that the 2010 Citizens United decision allowing donors to contribute unlimited amounts of money to independent groups supporting individual candidates (see January 21, 2010) is “leveling the playing field” in politics. Reporters Scott Keyes and Travis Waldron call Pawlenty’s comment “a turn of phrase that would give George Orwell satisfaction.” Since the decision, a relatively small number of wealthy corporations and individuals have transformed US politics with their multi-million dollar donations (see January 21-22, 2010, March 26, 2010, August 2, 2010, September 13-16, 2010, September 21 - November 1, 2010, September 28, 2010, October 2010, Around October 27, 2010, November 1, 2010, (May 4, 2011), May 5, 2011, July 12, 2011, August 4, 2011, October 27, 2011, October 30, 2011, December 1, 2011, December 19, 2011, January 3, 2012, and January 6, 2012). But Pawlenty seemingly believes that campaign finance laws are still too restrictive, and says he believes that donors should be able to make unlimited donations directly to candidates (see December 21, 2011 and January 10, 2012) instead of making those donations to third-party groups. Pawlenty refuses to say the Citizens United decision will help Romney defeat President Obama in the November general election, and instead says that the decision helps “free speech” (see January 21, 2010 and January 22, 2010). Pawlenty continues: “Every time they try to contain speech, it pops up somewhere else. This is just me talking personally, I’m not speaking for Mitt’s position on this. The better position is to allow full and free speech in whatever form, but have instant disclosure.” Keyes asks, “You’re talking completely unlimited donations?” and Pawlenty responds: “We have that now, it’s just a question of where the money gets pushed to the third party groups. This leveling the playing field to some extent because in the past, unions in particular (see June 25, 1943 and June 23, 1947) and other interest groups had an advantage in the old system. Now the playing field’s being leveled a little bit.” He clarifies: “Right now, with super PACs and third party groups, there’s essentially unlimited giving to various aligned super PACs and groups. The point is, the United States Supreme Court has spoken. They have said we’re going to have free speech as it relates to political contributions. The First Amendment should be respected and protected, but I think we should also have full disclosure.” Keyes and Waldron write that billionaire corporate owners such as the Koch brothers (see 1977-Present, 1979-1980, 1997, 1981-2010, 1984 and After, Late 2004, May 6, 2006, April 15, 2009, May 29, 2009, November 2009, December 6, 2009, April 2010 and After, July 3-4, 2010, June 26-28, 2010, August 28, 2010, August 30, 2010, September 24, 2010, January 5, 2011, October 4, 2011, and February 14, 2011) have pledged staggering amounts of money to defeat Obama in the November elections, and conclude, “This massive influx of unregulated campaign spending will almost certainly be the new normal as wealthy individuals and corporations find new ways to influence elections, helped in large part by the now-two year old Citizens United decision.” [Think Progress, 1/21/2012]

Entity Tags: Travis Waldron, Barack Obama, US Supreme Court, Scott Keyes, Willard Mitt Romney, Tim Pawlenty

Timeline Tags: Civil Liberties, 2012 Elections

Columnist Adam White, writing for the conservative Weekly Standard, lambasts a recent article by the New Yorker’s Jeffrey Toobin about the internal decision-making process behind the 2010 Citizens United decision (see January 21, 2010 and May 14, 2012). Most publications describe the decision as allowing corporations and labor unions to spend money freely in campaigns, but White defines it differently, calling it an affirmation of “a corporation’s First Amendment right to spend money on independent speech on political issues, even when that speech criticizes candidates for office” (see January 21, 2010, January 22, 2010, and February 2, 2010). Law professors Tom Goldstein and Jonathan Adler have found some “spin” in Toobin’s account of events (see May 14, 2012), and law professor Richard Hasen has asked that a draft dissent highly critical of the decision and its methodology be made public to shed light on Toobin’s narrative (see May 14-16, 2012). However, White goes significantly further than any of the professors in tarring Toobin’s article, and in some instances Toobin himself. White writes flatly that everyone outside of “Toobin’s base,” presumably meaning liberals who comprise “Chief Justice [John] Roberts’s critics,” is “skeptical” of the article, and cites Goldstein and National Review columnist Ed Whelan (see May 15-17, 2012) as examples of those presumed skeptics who have “poured cold water” on the story. According to White, Toobin “front-load[ed] his story with easily disprovable mischaracterizations of the case” that [e]ven a cursory review of the case’s briefs, and contemporary news coverage, disproves Toobin’s thesis” of Roberts using a narrowly drawn case to revamp and invalidate most of US campaign finance law. White writes that Toobin’s characterization of the narrow focus of the case is wrong: “The First Amendment stakes were well known, and much discussed, in the run-up to oral argument.” He cites the New York Times editorial published at the time of the first arguments, in March 2009 (see March 23, 2009), warning that if the Court ruled in favor of Citizens United, “it would create an enormous loophole in the law and allow corporate money to flood into partisan politics in ways it has not in many decades. It also would seriously erode the disclosure rules for campaign contributions.” He also notes that respected court reporter Lyle Denniston warned before the oral arguments that the Citizens United case threatened to deliver “a sweeping rejection of Congressional authority to regulate campaign spending by corporations.” Toobin himself made some of the same arguments on CNN the day of the arguments, White notes. He calls Toobin’s version of events in the article a “clumsy fictionalization of the case” designed to vilify Roberts. He also questions Toobin’s characterization of the first arguments from Citizens United (CU) lawyer Theodore Olson, going considerably further than either Goldstein or Adler in accusing Toobin of fundamentally misrepresenting Olson’s original, narrowly focused case. According to White, Olson’s opening argument claimed that the restriction being challenged by CU was “unconstitutional as applied to the distribution of Citizens United’s documentary film through video on demand… [it] plainly exceeds Congress’s sharply limited authority to abridge the freedom of speech.” White claims that Olson cited First Amendment grounds in a portion of the arguments not reported by Toobin, and quotes from Olson’s argument; that quote describes Olson’s citation of the 2007 case Wisconsin Right to Life (WRTL—see Mid-2004 and After and June 25, 2007), which indeed used First Amendment grounds for its successful positioning, and quotes Olson as saying the WRTL decision “errs on the side of permitting the speech, not prohibiting the speech.” White accuses Toobin of deliberately misrepresenting Olson’s argument to “advanc[e] his own anti-Roberts narrative.” White is unable to check the accuracy of Toobin’s behind-the-scenes narrative, as Toobin’s sources are not revealed in the article, but White is “skeptical,” writing, “Given Toobin’s inability of accurately handling straightforward, easily confirmable facts, why should anyone take at face value Toobin’s description of the justices’ private discussions, and their draft opinions—especially when Toobin only describes, never quotes, those deliberations or draft opinions?” Like Adler, Toobin questions the ethics of the person or persons at the Court who “leaked” the story to Toobin. [Weekly Standard, 5/17/2012]

Entity Tags: New York Times, Ed Whelan, Adam White, Jeffrey Toobin, Lyle Denniston, John G. Roberts, Jr, Theodore (“Ted”) Olson, Jonathan Adler, Richard L. Hasen, Thomas Goldstein

Timeline Tags: Civil Liberties

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