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Context of 'January 30, 1976: Supreme Court Modifies 1971 Federal Election Campaign Act Provisions, Finds Campaign Donations Are Protected ‘Free Speech’'

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Congress passes the Civil Service Reform Act, also called the Pendleton Act, which expands on the previously passed Naval Appropriations Bill, which prohibited government officials and employees from soliciting campaign donations from Naval Yard workers (see 1867). This bill extends the law to cover all federal civil service workers. Before this law goes into effect, government workers are expected to make campaign contributions in order to keep their jobs. The law was prompted by the assassination of President James Garfield by a person who believed he had been promised a job in the Garfield administration. The law establishes a “merit system” in place of the old “patronage” system of receiving government posts. [Campaign Finance Timeline, 1999; Center for Responsive Politics, 2002 pdf file; Connecticut Network, 2006 pdf file]

Entity Tags: Naval Appropriations Bill, Civil Service Reform Act, James A. Garfield

Timeline Tags: Civil Liberties

The presidential election is plagued with scandal and large monetary expenditures. William McKinley (R-OH) is the recipient of some $16 million in spending, a lavish amount for the time. The campaigns of both McKinley and his opponent, William Jennings Bryan (D-NE), are accused of bribery and poor ethical conduct. Mark Hanna, McKinley’s chief fundraiser and the chair of the Republican National Committee (RNC), devises a system of quotas for large corporations. Hanna raises between $6-7 million in donations from corporations through this quota system, in return for strong support of a big-business agenda. McKinley promises to oppose the establishment of silver coinage, supports protective tariffs, and other pro-corporate positions. The campaign is so fraught with controversy that the public begins demanding regulation and oversight of campaign funding practices. [Campaign Finance Timeline, 1999]

Entity Tags: Mark Hanna, William Jennings Bryan, William McKinley, Republican National Committee

Timeline Tags: Civil Liberties

President Theodore “Teddy” Roosevelt, in a speech given to the US Congress, proposes that corporations be expressly forbidden by law from contributing money “to any political committee or for any political purpose.” Neither should corporate directors be permitted to use stockholders’ money for political purposes. Roosevelt does not say that corporate owners should be so restricted. Roosevelt also says federal campaigns should be publicly financed via their political parties. Roosevelt’s proposal is made in part because he was accused of improperly accepting corporate donations for his 1904 presidential campaign. [Miller Center, 12/5/1905; Center for Responsive Politics, 2002 pdf file; Moneyocracy, 2/2012] Roosevelt, who has made similar statements in the past (see August 23, 1902), will echo these proposals in additional speeches. [Connecticut Network, 2006 pdf file] Two years later, Roosevelt will sign into law a bill proscribing such donations (see 1907).

Entity Tags: Theodore Roosevelt

Timeline Tags: Civil Liberties

Senator Benjamin Tillman, an ardent segregationist who once said, ‘My Democracy means white supremacy.’ Senator Benjamin Tillman, an ardent segregationist who once said, ‘My Democracy means white supremacy.’ [Source: Black Americans in Congress]President Theodore “Teddy” Roosevelt signs the Tillman Act into law. The Act prohibits monetary contributions to national political campaigns by corporations and national banks. Roosevelt, dogged by allegations that he had accepted improper donations during his 1904 presidential campaign, has pushed for such restrictions since he took office (see August 23, 1902 and December 5, 1905). [Federal Elections Commission, 1998; Center for Responsive Politics, 2002 pdf file; Moneyocracy, 2/2012] Senator Benjamin Tillman (D-SC), later described by National Public Radio as a “populist and virulent racist,” sponsored the bill. [National Public Radio, 2012] In 1900, Tillman was quoted as saying about black voters: “We have done our level best. We have scratched our heads to find out how we could eliminate every last one of them. We stuffed ballot boxes. We shot them. We are not ashamed of it.” [Atlas, 2010, pp. 205] Unfortunately, the law is easily circumvented. Businesses and corporations give employees large “bonuses” with the understanding that the employee then gives the bonus to a candidate “endorsed” by the firm. Not only do the corporations find and exploit this loophole, they receive an additional tax deduction for “employee benefits.” The law will be amended to cover primary elections in 1911 (see 1911). [Campaign Finance Timeline, 1999]

Entity Tags: Benjamin Tillman, Theodore Roosevelt, Tillman Act

Timeline Tags: Civil Liberties

The Federal Corrupt Practices Act (FCPA), also called the Publicity Act, is passed. It will remain the backbone of American campaign finance regulation until expanded in 1925 (see 1925). It expands upon the Tillman Act’s prohibition against corporate and bank donations to federal election campaigns (see 1907) by enacting campaign spending limits on US House election campaigns. It also requires full disclosure of all monies spent and contributed during federal campaigns. In 1911, the FCPA will be amended to cover Senate elections as well, and to set spending limits on all Congressional races. However, the bill fails to provide for enforcement and verification procedures, so the law remains essentially useless. [Federal Elections Commission, 1998; Campaign Finance Timeline, 1999; Center for Responsive Politics, 2002 pdf file; Moneyocracy, 2/2012] The law is rendered even less powerful after the Supreme Court overturns its provision limiting House and Senate candidate spending. [Pearson Education, 2004]

Entity Tags: Federal Corrupt Practices Act, Tillman Act

Timeline Tags: Civil Liberties

The federal government revises and expands the Federal Corrupt Practices Act (FCPA—see June 25, 1910), a campaign finance law that lacks any enforcement or verification mechanisms, in the wake of the Teapot Dome corruption scandal. The amended version codifies and revises the expenditure limits and disclosure procedures for US Congressional candidates. It will replace the original FCPA as well as its predecessor, the Tillman Act (see 1907), and will remain the backbone of American campaign finance law until 1971. All campaign spending is strictly regulated, with contributions of $50 and over during a calendar year mandated to be reported. Senatorial candidates can spend no more than three cents for each voter in the last election, to a maximum of $25,000. House candidates may also spend up to three cents per voter in the last election, up to a $5,000 maximum. Offers of patronage and contracts are banned, as is any form of bribery. Corporate contributions of all kinds are banned. However, the power of enforcement is entirely vested within Congress, and thusly is routinely ignored. [Campaign Finance Timeline, 1999; Center for Responsive Politics, 2002 pdf file; Pearson Education, 2004; National Public Radio, 2012] In 1966, President Lyndon B. Johnson will refer to the FCPA as “more loophole than law.” [Connecticut Network, 2006 pdf file; National Public Radio, 2012]

Entity Tags: Tillman Act, Federal Corrupt Practices Act

Timeline Tags: Civil Liberties

Congress passes the Public Utilities Holding Act, which bars public utility companies from making federal campaign contributions. Essentially, the act extends the ban on corporate contributions (see 1925) to utility companies, as they are not covered under existing law, and, under the administration of President Franklin Roosevelt, are growing rapidly in power and influence. Roosevelt had been elected to office in 1932 on a platform of “good government,” a longtime staple of Democratic Party platforms. The message played particularly well with voters after the economic policies and political corruption of the administration of President Herbert Hoover, a Republican, were widely blamed for the Great Depression. Republicans, stung by the failures of the Hoover administration, also declare their support for campaign finance reform, and the act passes with little resistance. [Campaign Finance Timeline, 1999]

Entity Tags: Franklin Delano Roosevelt, Democratic Party, Republican Party, US Congress, Herbert Hoover

Timeline Tags: Civil Liberties

Amendments to the federal Hatch Act of 1939, also known as the Clean Politics Act, set limits of $5,000 per year on individual contributions to a federal candidate or political committee. However, they do not prohibit donations from the same individual to multiple committees all working for the same candidate. The restrictions apply to primary elections as well as federal elections. Additionally, they bar contributions to federal candidates from individuals and businesses working for the federal government. [Federal Elections Commission, 1998; Campaign Finance Timeline, 1999; Center for Responsive Politics, 2002 pdf file]

Entity Tags: Hatch Act of 1939

Timeline Tags: Civil Liberties

The Smith-Connally Act restricts contributions to federal candidates from labor unions as well as from corporate and interstate banks (see 1925). The law is passed in response to the powerful influence of labor unions in elections beginning in 1936, where some unions used labor dues to support federal candidates [Center for Responsive Politics, 2002 pdf file] , and by public outrage at a steelworkers’ union going on strike for higher wages during the war, an action characterized by many as unpatriotic. The law was written both to punish labor unions and to make lawmakers less dependent on them and their contributions. [Campaign Finance Timeline, 1999] One example held up to scrutiny is the 1936 donation of $500,000 in union funds to the Democratic Party by John L. Lewis of the Congress of Industrial Organizations (CIO). [Connecticut Network, 2006 pdf file] Motivated by anti-union and anti-liberal sentiment after the war’s end, the Taft-Hartley Act (see June 23, 1947) will make the ban permanent. [Campaign Finance Timeline, 1999]

Entity Tags: Smith-Connally Act, Democratic Party, Congress of Industrial Organizations, John L. Lewis

Timeline Tags: Civil Liberties

In the case of United States v. Auto Workers, the Supreme Court reverses a lower court’s dismissal of an indictment against a labor union accused of violating federal laws prohibiting corporations and labor unions from making contributions or expenditures in federal elections (see June 23, 1947). Justice Felix Frankfurter writes the majority opinion; Chief Justice Earl Warren and Justices William O. Douglas and Hugo Black dissent. In a 5-3 decision, the Court finds the International Union United Automobile, Aircraft, and Agricultural Implement Workers of America liable for its practice of using union dues to sponsor television commercials relating to the 1954 Congressional elections. [UNITED STATES v. AUTO. WORKERS, 2011; Moneyocracy, 2/2012] Law professor Allison R. Hayward will later write that in her opinion the Court finding created “a fable of campaign finance reform… dictated by political opportunism. Politicians used reform to exploit public sentiment and reduce rivals’ access to financial resources.… [J]udges should closely examine campaign finance regulation and look for the improper use of legislation for political gain instead of simply deferring to Congress. Undue deference to the Auto Workers fable of reform could lead to punishment for the exercise of political rights. Correcting the history is thus essential to restoring proper checks on campaign finance legislation.” Hayward will argue that Frankfurter used a timeline of Congressional efforts to curb and reform campaign finance practices as an excuse to allow powerful political interests to exert restrictions on political opponents with less access to large election finance contributions. The case is used uncritically, and sometimes unfairly, to influence later campaign reform efforts, Hayward will argue. [Hayward, 6/17/2008 pdf file]

Entity Tags: US Supreme Court, Earl Warren, Allison R. Hayward, Felix Frankfurter, International Union United Automobile, Aircraft, and Agricultural Implement Workers of America, William O. Douglas, Hugo Black

Timeline Tags: Civil Liberties

For the first time, the clerk of the US House of Representatives does his duty under the law and collects campaign finance reports, as mandated by the 1925 Federal Corrupt Practices Act (see 1925). W. Pat Jennings, a former congressman, turns in a list of violators to the US Department of Justice. Jennings’s list is ignored. [Center for Responsive Politics, 2002 pdf file]

Entity Tags: US Department of Justice, US House of Representatives, Federal Corrupt Practices Act, W. Pat Jennings

Timeline Tags: Civil Liberties

The federal government enacts the Revenue Act as a companion, and precursor, to the omnibus Federal Election Campaign Act (FECA—see February 7, 1972). The Revenue Act creates a public campaign fund for eligible presidential candidates, beginning with the 1976 presidential election, through the provision of a voluntary one-dollar checkoff box on federal income tax returns. (This provision was actually introduced into law by the 1968 Long Act.) The law also allows for a $50 tax deduction for individual filers for contributions to local, state, or federal candidates, a provision that will be eliminated in 1978. It provides a $12.50 tax credit for the same purpose, a provision that will be raised to $50 in 1978 and eliminated in 1986. [Federal Elections Commission, 1998; Campaign Finance Timeline, 1999; Center for Responsive Politics, 2002 pdf file]

Entity Tags: Federal Election Campaign Act of 1972, Revenue Act of 1971

Timeline Tags: Civil Liberties

The massive Federal Election Campaign Act (FECA) is signed into law by President Nixon. (The law is commonly thought of in the context of 1971, when Congress passed it, but Nixon did not sign it into law for several months.) The law is sparked by a rising tide of anger among the public, frustrated by the Vietnam War and the variety of movements agitating for change. The campaign watchdog organization Common Cause sued both the Democratic and Republican National Committees for violating the Federal Corrupt Practices Act (FCPA—see 1925), and though it lost the suit, it exposed the flaws and limitations of the law to the public. Common Cause then led a push to improve campaign finance legislation, aided by the many newly elected and reform-minded members of Congress. FECA repeals the toothless FCPA and creates a comprehensive framework for the regulation of federal campaign financing, from primaries and runoffs to conventions and general elections. The law requires full and timely disclosure of donations and expenditures, and provides broad definitions of both. It sets limits on media advertising as well as on contributions from candidates and their family members. The law permits unions and corporations to solicit voluntary contributions from members, employees, and stockholders, and allows union and corporate treasury money to be used for operating expenses for political action committees (PACs) or for voter drives and the like. It bans patronage or the promise of patronage, and bans contracts between a candidate and any federal department or agency. It establishes strict caps on the amounts individuals can contribute to their own campaigns—$50,000 for presidential and vice-presidential candidates, $35,000 for Senate candidates, and $25,000 for House candidates. It establishes a cap on television advertising at 10 cents per voter in the last election, or $50,000, whichever is higher. [Campaign Finance Timeline, 1999; Center for Responsive Politics, 2002 pdf file; Federal Election Commission, 4/2008 pdf file] The difference before and after FECA is evident. Congressional campaign spending reportage from 1968 claimed only $8.5 million, while in 1972, Congressional campaign spending reports will soar to $88.9 million. [Federal Elections Commission, 1998]

Entity Tags: Richard M. Nixon, Federal Corrupt Practices Act, Federal Election Campaign Act of 1972, Common Cause

Timeline Tags: Civil Liberties

In the case of Pipefitters Local Union No. 562 et al v. US, the Supreme Court overturns a criminal conviction of the Pipefitters Union for violating the Smith-Connally Act (see June 25, 1943) and the Federal Corrupt Practices Act (FCPA—see 1925). That law bans labor unions from contributing to political campaigns, and Pipefitters Union officials had administered a political action committee (see 1944). The Court, citing the newly passed Federal Election Campaign Act (FECA—see February 7, 1972), overturns the conviction, ruling that FECA “plainly permits union officials to establish, administer, and solicit contributions for a political fund.” The decision is later codified by the amendments to the law (see 1974). [Campaign Finance Timeline, 1999; US Supreme Court Center, 2012]

Entity Tags: Pipefitters Union, US Supreme Court, Federal Election Campaign Act of 1972

Timeline Tags: Civil Liberties

In the aftermath of the Watergate scandal (see August 8, 1974), amendments to the Federal Election Campaign Act (FECA—see February 7, 1972) provide the option for full public financing for presidential general elections, matching funds for presidential primaries, and public expenditures for presidential nominating conventions. The amendments also set spending limits on presidential primaries and general elections as well as for House and Senate primaries. The amendments give some enforcement provisions to previously enacted spending limits on House and Senate general elections. They set strict spending guidelines: for presidential campaigns, each candidate is limited to $10 million for primaries, $20 million for general elections, and $2 million for nominating conventions; Senatorial candidates are limited to $100,000 or eight cents per eligible voter, whichever is higher, for primaries, and higher limits of $150,000 or 12 cents per voter for general elections; House candidates are limited to $70,000 each for primaries and general elections. Loans are treated as contributions. The amendments create an individual contribution limit of $1,000 to a candidate per election and a PAC (political action committee) contribution limit of $5,000 to a candidate per election (this provision will trigger what the Center for Responsive Politics will call a “PAC boom” in the late 1970s). The total aggregate contributions from an individual are set at $25,000 per year. Candidates face further restrictions on how much personal wealth they can contribute to their own campaign. The 1940 ban on contributions from government employees and contract workers (see 1940) is repealed, as are the 1971 limitations on media spending. Perhaps most importantly, the amendments create the Federal Election Commission (FEC) to oversee and administer campaign law. (Before, enforcement and oversight responsibilities were spread among the Clerk of the House, the Secretary of the Senate, and the Comptroller General of the United States General Accounting Office (GAO), with the Justice Department responsible for prosecuting violators (see 1967).) The FEC is led by a board of six commissioners, with Congress appointing four of those commissioners and the president appointing two more. The Secretary of the Senate and the Clerk of the House are designated nonvoting, exofficio commissioners. [Federal Elections Commission, 1998; Campaign Finance Timeline, 1999; Center for Responsive Politics, 2002 pdf file] Part of the impetus behind the law is the public outrage over the revelations of how disgraced ex-President Nixon’s re-election campaign was funded, with millions of dollars in secret, illegal corporate contributions being funneled into the Nixon campaign. [Campaign Finance Timeline, 1999; Connecticut Network, 2006 pdf file]

Entity Tags: Center for Responsive Politics, Federal Election Campaign Act of 1972, Federal Election Commission, US Department of Justice

Timeline Tags: Civil Liberties

August 8, 1974: Nixon Resigns Presidency

Richard Nixon announcing his resignation to the country.Richard Nixon announcing his resignation to the country. [Source: American Rhetoric.com]President Richard Nixon, forced to resign because of the Watergate scandal, begins his last day in office. The morning is marked by “burn sessions” in several rooms of the White House, where aides burn what author Barry Werth calls “potentially troublesome documents” in fireplaces. Nixon’s chief of staff, Alexander Haig, is preparing for the transition in his office, which is overflowing with plastic bags full of shredded documents. Haig says all of the documents are duplicates. Haig presents Nixon with a one-line letter of resignation—“I hereby resign the office of president of the United States”—and Nixon signs it without comment. Haig later describes Nixon as “haggard and ashen,” and recalls, “Nothing of a personal nature was said… By now, there was not much that could be said that we did not already understand.” Nixon gives his resignation speech at 9 p.m. [White House, 8/8/1974; White House, 8/8/1974; American Rhetoric, 2001; Werth, 2006, pp. 3-8] On August 7, Haig told Watergate special prosecutor Leon Jaworski that Congress would certainly pass a resolution halting any legal actions against Nixon. But, watching Nixon’s televised resignation speech, Jaworski thinks, “Not after that speech, Al.” Nixon refuses to accept any responsibility for any of the myriad crimes and illicit actions surrounding Watergate, and merely admits to some “wrong” judgments. Without some expression of remorse and acceptance of responsibility, Jaworski doubts that Congress will do anything to halt any criminal actions against Nixon. [Werth, 2006, pp. 30-31] Instead of accepting responsibility, Nixon tells the nation that he must resign because he no longer has enough support in Congress to remain in office. To leave office before the end of his term “is abhorrent to every instinct in my body,” he says, but “as president, I must put the interests of America first.” Jaworski makes a statement after the resignation speech, declaring that “there has been no agreement or understanding of any sort between the president or his representatives and the special prosecutor relating in any way to the president’s resignation.” Jaworski says that his office “was not asked for any such agreement or understanding and offered none.” [Washington Post, 8/9/1974]

Entity Tags: Nixon administration, Leon Jaworski, Richard M. Nixon, Alexander M. Haig, Jr., Barry Werth

Timeline Tags: Nixon and Watergate

The Federal Election Commission (FEC) hands down an “advisory opinion” that, according to the mandates of the newly passed amendments to the Federal Election Campaign Act (FECA—see 1974), allows corporations to spend general funds on solicitation of donations from stockholders and employees. The case stems from an attempt by Sun Oil Corporation to solicit employees, both union and non-union, for contributions to the corporation’s PAC, SUN PAC. The FEC’s advisory opinion, which by law is binding, reads in part, “It is the opinion of the Commission that Sun Oil may spend general treasury funds for solicitation of contributions to SUN PAC from stockholders and employees of the corporation.” The FEC’s reasoning is that the money is to be segregated according to the Supreme Court’s Pipefitters decision (see June 22, 1972), businesses have for years solicited their employees for both political and non-political causes, and FECA says that contributions to a separate segregated fund may not be secured by “job discrimination” or “financial reprisals.” Neither Congress nor the unions are pleased with the ruling. If corporations had been restricted to soliciting only their stockholders, they could have solicited only twice as many individuals as the labor unions, but with the ruling in place, corporations effectively can now solicit virtually the entire workforce of the nation. It is this decision that in part sparks the “PAC boom” among corporate PACs, which sees the number and funding of corporate PACs increase dramatically. [Campaign Finance Timeline, 1999]

Entity Tags: Federal Election Campaign Act of 1972, SUN PAC, Sun Oil Corporation, Federal Election Commission

Timeline Tags: Civil Liberties

The Supreme Court case Buckley v. Valeo, filed by Senator James L. Buckley (R-NY) and former Senator Eugene McCarthy (D-WI) against the Secretary of the Senate, Francis R. Valeo, challenges the constitutionality of the Federal Election Campaign Act (FECA—see February 7, 1972 and 1974) on free-speech grounds. The suit also named the Federal Election Commission (FEC) as a defendant. A federal appeals court validated almost all of FECA, and the plaintiffs sent the case to the Supreme Court. The Court upholds the contribution limits set by FECA because those limits help to safeguard the integrity of elections. However, the court overrules the limits set on campaign expenditures, ruling: “It is clear that a primary effect of these expenditure limitations is to restrict the quantity of campaign speech by individuals, groups, and candidates. The restrictions… limit political expression at the core of our electoral process and of First Amendment freedoms.” One of the most important aspects of the Supreme Court’s ruling is that financial contributions to political campaigns can be considered expressions of free speech, thereby allowing individuals to essentially make unrestricted donations. The Court implies that expenditure limits on publicly funded candidates are allowable under the Constitution, because presidential candidates may disregard the limits by rejecting public financing (the Court will affirm this stance in a challenge brought by the Republican National Committee in 1980).
Provisions of 'Buckley' - The Court finds the following provisions constitutional:
bullet Limitations on contributions to candidates for federal office;
bullet Disclosure and record-keeping provisions; and
bullet The public financing of presidential elections.
However, the Court finds these provisions unconstitutional:
bullet Limitations on expenditures by candidates and their committees, except for presidential candidates who accept public funding;
bullet The $1,000 limitation on independent expenditures;
bullet The limitations on expenditures by candidates from their personal funds; and
bullet The method of appointing members of the FEC, holding that as the method stands, it violates the principle of separation of powers.
In May 1976, following the Court’s ruling, the FEC will reconstitute its board with six presidential appointees after Senate confirmation. [Federal Elections Commission, 3/1997; Federal Elections Commission, 1998; Campaign Finance Timeline, 1999; Center for Responsive Politics, 2002 pdf file; Casebriefs, 2012]
No Clear Authors - The opinion is labeled per curiam, a term usually reserved for brief and minor Court decisions when authorship of an opinion is less relevant. It is unclear exactly which Justices write the opinion. Most Court observers believe Justice William Brennan writes the bulk of the opinion, but Brennan’s biographers will later note that sections of the opinion are authored by Chief Justice Warren Burger and Justices Potter Stewart, Lewis Powell, and William Rehnquist. The opinion is an amalgamation of multiple authors, reflecting the several compromises made in the resolution of the decision. [New Yorker, 5/21/2012]
Criticism of 'Buckley' - Critics claim that the ruling enshrines the principle of “money equals speech.” The ruling also says that television and radio advertisements that do not expressly attack an individual candidate can be paid for with “unregulated” funds. This leads organizations to begin airing “attack ads” that masquerade as “issue ads,” ostensibly promoting or opposing a particular social or political issue and avoiding such words as “elect” or “defeat.” [National Public Radio, 2012] In 1999, law professor Burt Neuborne will write: “Buckley is like a rotten tree. Give it a good, hard push and, like a rotten tree, Buckley will keel over. The only question is in which direction.” Neuborne will write that his preference goes towards reasonable federal regulations of spending and contributions, but “any change would be welcome” in lieu of this decision, and even a completely deregulated system would be preferable to Buckley’s legal and intellectual incoherence. [New York Times, 5/3/2010] In 2011, law professor Richard Hasen will note that while the Buckley decision codifies the idea that contributions are a form of free speech, it also sets strict limitations on those contributions. Calling the decision “Solomonic,” Hasen will write that the Court “split the baby, upholding the contribution limits but striking down the independent spending limit as a violation of the First Amendment protections of free speech and association.” Hasen will reflect: “Buckley set the main parameters for judging the constitutionality of campaign finance restrictions for a generation. Contribution limits imposed only a marginal restriction on speech, because the most important thing about a contribution is the symbolic act of contributing, not the amount. Further, contribution limits could advance the government’s interest in preventing corruption or the appearance of corruption. The Court upheld Congress’ new contribution limits. It was a different story with spending limits, which the Court said were a direct restriction on speech going to the core of the First Amendment. Finding no evidence in the record then that independent spending could corrupt candidates, the Court applied a tough ‘strict scrutiny’ standard of review and struck down the limits.” [Slate, 10/25/2011] In 2012, reporter and author Jeffrey Toobin will call it “one of the Supreme Court’s most complicated, contradictory, incomprehensible (and longest) opinions.” [New Yorker, 5/21/2012]

Entity Tags: Federal Election Campaign Act of 1972, Federal Election Commission, James Buckley, Jeffrey Toobin, US Supreme Court, Eugene McCarthy, Lewis Powell, Potter Stewart, Burt Neuborne, William Rehnquist, Warren Burger, Richard L. Hasen, William Brennan

Timeline Tags: Civil Liberties

Amendments to the 1971 Federal Election Campaign Act (FECA—see February 7, 1972 and 1974) passed by Congress after the controversial Buckley ruling by the Supreme Court (see January 30, 1976) bring FECA into conformity with the Court’s decision. The amendments repeal expenditure limits except for presidential candidates who accept public funding, and revise the provisions governing the appointment of commissioners to the Federal Election Commission (FEC). The amendments also limit the scope of PAC fundraising by corporations and labor unions. The amendments limit individual contributions to national political parties to $20,000 per year, and individual contributions to a PAC to $5,000 per year. [Federal Elections Commission, 1998; Center for Responsive Politics, 2002 pdf file] However, the Constitution restricts what Congress can, or is willing, to do, and the amendments are relatively insignificant. [Campaign Finance Timeline, 1999]

Entity Tags: Federal Election Commission, Federal Election Campaign Act of 1972, US Supreme Court

Timeline Tags: Civil Liberties

Cato Institute logo.Cato Institute logo. [Source: Cato Institute]The billionaire Koch brothers, Charles and David, launch the libertarian Cato Institute, one of the first of many think tanks and advocacy organizations they will fund (see August 30, 2010). While records of the Koch funding of the institute are not fully available, the Center for Public Integrity learns that between 1986 and 1993 the Koch family gives $11 million to the institute. By 2010, Cato has over 100 full-time employees, and often succeeds in getting its experts and policy papers quoted by mainstream media figures. While the institute describes itself as nonpartisan, and is at times critical of both Republicans and Democrats, it consistently advocates for corporate tax cuts, reductions in social services, and laissez-faire environmental policies. One of its most successful advocacy projects is to oppose government initiatives to curb global warming. When asked why Cato opposes such federal and state initiatives, founder and president Ed Crane explains that “global warming theories give the government more control of the economy.” [New Yorker, 8/30/2010]

Entity Tags: Center for Public Integrity, Cato Institute, Ed Crane, Charles Koch, David Koch

Timeline Tags: Domestic Propaganda

The Supreme Court, in the case of First National Bank of Boston v. Bellotti, rules 5-4 that corporations have the First Amendment right to make contributions in order to influence political processes. Writing for the majority, Justice Lewis Powell finds that under the recent Buckley ruling (see January 30, 1976), corporate political donations are protected speech. Powell’s opinion finds that a Massachusetts criminal statute prohibiting corporations from spending money for the purpose of “influencing or affecting” voters’ opinions is not legitimate. The split among the justices is unusual, with Powell, a conservative, being joined by two more conservatives, Chief Justice Warren Burger and Potter Stewart, and liberals Harry Blackmun and John Paul Stevens. The four dissenters are liberals William Brennan and Thurgood Marshall, and conservatives Byron White and William Rehnquist. [FIRST NATIONAL BANK OF BOSTON v. BELLOTTI, 2012; Moneyocracy, 2/2012] Rehnquist’s standalone dissent advocates for far stricter controls on corporate spending in elections than most of the other justices’ dissents, with Rehnquist writing that such spending could “pose special dangers in the political sphere.” [Reclaim Democracy, 4/26/1978; FIRST NATIONAL BANK OF BOSTON v. BELLOTTI, 2012]

Entity Tags: Lewis Powell, Byron White, John Paul Stevens, William Rehnquist, Warren Burger, Harry Blackmun, William Brennan, US Supreme Court, Potter Stewart, Thurgood Marshall

Timeline Tags: Civil Liberties

Oil billionaire David Koch runs for vice president on the Libertarian Party ticket. David and his brother Charles are the primary backers of hard-right libertarian politics in the US (see August 30, 2010); Charles, the dominant brother, is determined to tear government “out at the root,” as he will later be characterized by libertarian Brian Doherty. The brothers have thrown their support behind Libertarian presidential candidate Ed Clark, who is running against Republican Ronald Reagan from the right of the political spectrum. The brothers are frustrated by the legal limits on campaign financing, and they persuade the party to place David on the ticket as vice president, thereby enabling him to spend as much of his personal fortune as he likes. The Libertarian’s presidential campaign slogan is, “The Libertarian Party has only one source of funds: You.” In reality, the Koch brothers’ expenditures of over $2 million is the campaign’s primary source of funding. Clark tells a reporter that the Libertarians are preparing to stage “a very big tea party” because people are “sick to death” of taxes. The Libertarian Party platform calls for the abolition of the FBI and the CIA, as well as of federal regulatory agencies, such as the Securities and Exchange Commission and the Department of Energy. The platform proposes the abolition of Social Security, minimum-wage laws, gun control, and all personal and corporate income taxes; in return, it proposes the legalization of prostitution, recreational drugs, and suicide. Government should be reduced to only one function, the party proclaims: the protection of individual rights. Conservative eminence William F. Buckley Jr. calls the movement “Anarcho-Totalitarianism.” The Clark-Koch ticket receives only one percent of the vote in the November 1980 elections, forcing the Koch brothers to realize that their brand of politics isn’t popular. In response, Charles Koch becomes openly scornful of conventional politics. “It tends to be a nasty, corrupting business,” he says. “I’m interested in advancing libertarian ideas.” Doherty will later write that both Kochs come to view elected politicians as merely “actors playing out a script.” Doherty will quote a longtime confidant of the Kochs as saying that after the 1980 elections, the brothers decide they will “supply the themes and words for the scripts.” In order to alter the direction of America, they had to “influence the areas where policy ideas percolate from: academia and think tanks.” [New Yorker, 8/30/2010]

Entity Tags: Libertarian Party, Brian Doherty, Charles Koch, Ronald Reagan, David Koch, William F. Buckley, Ed Clark

Timeline Tags: Domestic Propaganda

The federal government passes even more amendments to the 1971 Federal Election Campaign Act (FECA—see February 7, 1972, 1974, and May 11, 1976). The new amendments simplify campaign finance reporting requirements, encourage political party activity at the state and local levels, and increase the public funding grants for presidential nominating conventions. The new amendments prohibit the Federal Election Commission (FEC) from conducting random campaign audits. They also allow state and local parties to spend unlimited amounts on federal campaign efforts, including the production and distribution of campaign materials such as signs and bumper stickers used in “get out the vote” (GOTV) efforts. [Federal Elections Commission, 1998; Center for Responsive Politics, 2002 pdf file] The amendment creates what later becomes known as “soft money,” or donations and contributions that are essentially unregulated as long as they ostensibly go for “party building” expenses. The amendments allow corporations, labor unions, and wealthy individuals to contribute vast sums to political parties and influence elections. By 1988, both the Republican and Democratic Parties will spend inordinate and controversial amounts of “soft money” in election efforts. [National Public Radio, 2012] While the amendments were envisioned as strengthening campaign finance law, many feel that in hindsight, the amendments actually weaken FECA and campaign finance regulation. Specifically, the amendments reverse much of the 1974 amendments, and allow money once prohibited from being spent on campaigns to flow again. [Campaign Finance Timeline, 1999]

Entity Tags: Federal Election Commission, Federal Election Campaign Act of 1972

Timeline Tags: Civil Liberties

KochPAC logo.KochPAC logo. [Source: KochPAC (.com)]After their stinging loss during the November 1980 presidential campaign, the billionaire Koch brothers, Charles and David, decide that they need to work to inculcate their brand of hard-right libertarianism into the electorate through indirect means (see 1979-1980). Therefore, they begin spending vast amounts of their personal fortunes on what purport to be independent think tanks and other political or ideological organizations. At the same time, the brothers become political recluses, rarely speaking in public and rarely acknowledging the breadth or the direction of their donations. It is hard to know exactly how much the Kochs spend and where they spend it, though public records give some of the picture. Between 1998 and 2008, Charles Koch’s foundation spends over $48 million on political funding. The Claude R. Lambe Charitable Foundation, controlled by Charles and his wife, spends over $28 million. David Koch’s foundation spends over $120 million. Koch Industries, controlled primarily by Charles, spends over $50 million on lobbying efforts. Their political action committee, KochPAC, donates around $8 million, almost all of it going to Republicans. In 2010, as in other years, Koch Industries leads all other energy companies in political donations. The brothers spend over $2 million of their personal fortunes on political donations, almost all of it going to Republicans. Ari Rabin-Havt of the progressive media watchdog organization Media Matters will say that the Kochs’ effort is unusual in its marshalling of corporate and personal funds: “Their role, in terms of financial commitments, is staggering.” Lee Fang, writing for the liberal blog ThinkProgress (an arm of the Center for American Progress), calls the Kochs “the billionaires behind the hate.” Some believe that the Kochs have either skirted, or outright broken, laws controlling tax-exempt giving. Charitable foundations must conduct exclusively nonpartisan activities that promote the public welfare. But in 2004, a report by the National Committee for Responsive Philanthropy, a watchdog group, describes the Kochs’ foundations as being self-serving, and concludes, “These foundations give money to nonprofit organizations that do research and advocacy on issues that impact the profit margin of Koch Industries.” The Kochs also use their charitable foundations to fund hard-right political organizations that, according to reporter Jane Mayer, “aim to push the country in a libertarian direction,” including: the Institute for Justice, which files lawsuits opposing state and federal regulations; the Institute for Humane Studies, which underwrites libertarian academics; and the Bill of Rights Institute, which promotes a conservative interpretation of the Constitution. David Koch acknowledges that the family exerts tight ideological control. “If we’re going to give a lot of money, we’ll make darn sure they spend it in a way that goes along with our intent,” he tells a reporter. “And if they make a wrong turn and start doing things we don’t agree with, we withdraw funding.” [New Yorker, 8/30/2010]

Entity Tags: Institute for Justice, Charles Koch, Bill of Rights Institute, Ari Rabin-Havt, Claude R. Lambe Charitable Foundation, Institute for Humane Studies, Koch Industries, National Committee for Responsive Philanthropy, Jane Mayer, David Koch, Lee Fang, KochPAC

Timeline Tags: Domestic Propaganda

Citizens for a Sound Economy logo.Citizens for a Sound Economy logo. [Source: Greater Houston Pachyderm Club]The billionaire Koch brothers, Charles and David, launch the first of a number of “citizen advocacy” groups they either found or fund, Citizens for a Sound Economy. The Kochs are staunch right-wing libertarians determined to successfully combat government regulation and oversight of businesses, government taxation, and government funding of social programs (see August 30, 2010). Between 1986 and 1993, the brothers will provide $7.9 million to the group, even as it promotes itself as a “grassroots,” “citizen-driven” organization. (Such organizations that call themselves “citizen-based” while actually being founded, operated, and funded by corporate interests are called “astroturf” organizations.) Matt Kibbe, who will go on to head a Koch-funded lobbying organization, FreedomWorks, will later say of Citizens for a Sound Economy that its driving force was to take the Kochs’ “heavy ideas and translate them for mass America.… We read the same literature Obama did about nonviolent revolutions—Saul Alinsky, Gandhi, Martin Luther King. We studied the idea of the Boston Tea Party as an example of nonviolent social change. We learned we needed boots on the ground to sell ideas, not candidates.” One organization participant will say that the brothers are “very controlling, very top down. You can’t build an organization with them. They run it.” By 1993, the organization will become powerful enough to successfully thwart the Clinton administration’s efforts to place a “BTU tax” on energy, and mounts successful “citizen protests” against Democrats, sometimes funnelling millions of Koch monies into the political campaigns of their Republican opponents. [New Yorker, 8/30/2010]

Entity Tags: Clinton administration, Charles Koch, David Koch, Citizens for a Sound Economy, Matt Kibbe, FreedomWorks

Timeline Tags: Domestic Propaganda

The Supreme Court, in the case of Federal Election Commission v. NCPAC, rules that political action committees (PACs) can spend more than the $1,000 mandated by federal law (see February 7, 1972, 1974, and May 11, 1976). The Democratic Party and the FEC argued that large expenditures by the National Conservative Political Action Committee (NCPAC) in 1975 violated the Federal Election Campaign Act (FECA), which caps spending by independent political action committees in support of a publicly funded presidential candidate at $1,000. The Court rules 7-2 in favor of NCPAC, finding that the relevant section of FECA encroaches on the organization’s right to free speech (see January 30, 1976). Justice William Rehnquist writes the majority opinion, joined by fellow conservatives Chief Justice Warren Burger, Sandra Day O’Connor, and Lewis Powell, and liberals Harry Blackmun, John Paul Stevens, and William Brennan. Justices Byron White and Thurgood Marshall dissent from the majority. [Oyez (.org), 2012; Moneyocracy, 2/2012]

Entity Tags: Federal Election Commission, William Brennan, William Rehnquist, Byron White, Federal Election Campaign Act of 1972, US Supreme Court, Warren Burger, Sandra Day O’Connor, Harry Blackmun, John Paul Stevens, Thurgood Marshall, National Conservative Political Action Committee, Democratic Party, Lewis Powell

Timeline Tags: Civil Liberties

Antonin Scalia.Antonin Scalia. [Source: Oyez.org]Appeals court judge Antonin Scalia is sworn in as an Associate Justice of the US Supreme Court. [Legal Information Institute, 7/30/2007] Although Scalia is an ardent social conservative, with strongly negative views on such issues as abortion and homosexual rights, Scalia and Reagan administration officials both have consistently refused to answer questions about his positions on these issues, as President Reagan did at his June announcement of Scalia’s nomination. [Ronald Reagan Presidential Library, 6/17/1986] Scalia’s nomination is, in the words of Justice Department official Terry Eastland, “no better example of how a president should work in an institutional sense in choosing a nominee….” Eastland advocates the practice of a president seeking a judiciary nominee who has the proper “judicial philosophy.” A president can “influence the direction of the courts through his appointments” because “the judiciary has become more significant in our politics,” meaning Republican politics. [Dean, 2007, pp. 132] Scalia is the product of a careful search by Attorney General Edwin Meese and a team of Justice Department officials who wanted to find the nominee who would most closely mirror Reagan’s judicial and political philosophy (see 1985-1986).

Entity Tags: Ronald Reagan, Edwin Meese, Antonin Scalia, Terry Eastland, US Department of Justice

Timeline Tags: Civil Liberties

The Supreme Court rules in Federal Election Commission v. Massachusetts Citizens for Life that an anti-abortion organization can print flyers promoting “pro-life” candidates in the weeks before an election, and that the portion of the Federal Election Campaign Act (FECA—see February 7, 1972, 1974, and May 11, 1976) that bars distribution of such materials to the general public restricts free speech. In September 1978, the Massachusetts Citizens For Life (MCFL) spent almost $10,000 printing flyers captioned “Everything You Need to Vote Pro-Life,” which included information about specific federal and state candidates’ positions on abortion rights, along with exhortations to “vote pro-life” and “No pro-life candidate can win in November without your vote in September.” The Federal Election Commission (FEC) ruled that MCFL’s expenditures violated FECA’s ban on corporate spending in connection with federal elections. A Massachusetts district court ruled against the FEC, finding that the flyer distribution “was uninvited by any candidate and uncoordinated with any campaign” and the flyers fell under the “newspaper exemption” of the law. Moreover, the court found, FECA’s restrictions infringed on MCFL’s freedom of speech (see January 30, 1976 and April 26, 1978). An appeals court reversed much of the district court’s decision, but agreed that the named provision of FECA violated MCFL’s free speech rights. The FEC appealed to the Supreme Court. By a 5-4 vote, the Court affirms that FECA’s prohibition on corporate expenditures is unconstitutional as applied to independent expenditures made by a narrowly defined type of nonprofit corporation such as MCFL. The Court writes that few organizations will be impacted by its decision. The majority opinion is written by Justice William Brennan, a Court liberal, and joined by liberal Thurgood Marshall and conservatives Lewis Powell, Antonin Scalia, and (in part) by Sandra Day O’Connor. Court conservatives William Rehnquist and Byron White, joined by liberals Harry Blackmun and John Paul Stevens, dissent with the majority, saying that the majority ruling gives “a vague and barely adumbrated exception [to the law] certain to result in confusion and costly litigation.” [Federal Election Commission, 2011; Moneyocracy, 2/2012]

Entity Tags: Federal Election Commission, William Rehnquist, Antonin Scalia, Federal Election Campaign Act of 1972, US Supreme Court, William Brennan, Sandra Day O’Connor, Harry Blackmun, John Paul Stevens, Thurgood Marshall, Massachusetts Citizens for Life, Byron White, Lewis Powell

Timeline Tags: Civil Liberties

The Supreme Court, in the case of Austin v. Michigan Chamber of Commerce, rules that the Michigan Chamber of Commerce (MCC) cannot run newspaper advertisements in support of a candidate for the state legislature because the MCC is subject to the Michigan Campaign Finance Act, which prohibits corporations from using treasury money to support or oppose candidates running for state offices. The Court finds that corporations can use money only from funds specifically designated for political purposes. The MCC holds a political fund separate from its other monies, but wanted to use money from its general fund to buy political advertising, and sued for the right to do so. The case explored whether a Michigan law prohibiting such political expenditures is constitutional. The Court agrees 7-2 that it is constitutional. Justices Antonin Scalia and Anthony Kennedy dissent, arguing that the government should not require such “segregated” funds, but should allow corporations and other such entities to spend their money on political activities without such restraints. [Public Resource (.org), 1990; Casebriefs, 2012; Moneyocracy, 2/2012] The 2010 Citizens United ruling (see January 21, 2010) will overturn this decision, with Scalia and Kennedy voting in the majority, and Kennedy writing the majority opinion.

Entity Tags: Michigan Chamber of Commerce, Anthony Kennedy, Michigan Campaign Finance Act, US Supreme Court, Antonin Scalia

Timeline Tags: Civil Liberties

President Bush vetoes the Campaign Finance Reform Act of 1992, which would have provided partial public financing for Congressional candidates who voluntarily accept fundraising restrictions. The legislation would have also put restrictions on so-called “soft money” raised on behalf of presidential candidates. The bill is sponsored by Congressional Democrats, and if signed into law, would have provided public funds and other incentives for Senate and House candidates who agreed to limit election spending. Bush says in his veto message that the bill would allow “a corrupting influence of special interests” in campaign financing and give an unfair advantage to Congressional incumbents, the majority of whom are Democrats. The bill is little more than “a taxpayer-financed incumbent protection plan,” Bush says. Democrats retort that the bill would lessen, not increase, campaign finance corruption by providing public funds instead of private (largely corporate) donations, and note that Bush netted $9 million in corporate and individual donations in a single evening during a so-called “President’s Dinner” fundraising event. Democratic leaders have acknowledged that if Bush indeed vetoes the bill, they lack the numbers in the Senate to override the veto; some believe that Democrats will try to use the veto in the 1994 and perhaps 1996 election campaigns. House and Senate candidates are breaking fundraising records, raising almost 29 percent more money this cycle than in a corresponding cycle two years ago. Much of those funds come from political action committees (PACs—see 1944, February 7, 1972, and November 28, 1984). In 1989, Bush said he would like to abolish PACs entirely, and he now says, “If the Congress is serious about enacting campaign finance reform, it should pass legislation along the lines I proposed in 1989, and I would sign it immediately.” The Democratic bill would curtail the influence of PACs, but not ban them outright. [Los Angeles Times, 5/10/1992; Reuters, 5/11/1992; Campaign Finance Timeline, 1999; Connecticut Network, 2006 pdf file] Fred Wertheimer of Common Cause, which had pressured for passage of the bill, called the legislation “the most important government reform legislation in about 20 years.” He added, “If President Bush vetoes the reform legislation, the corrupt campaign finance system in Washington will be his system, his personal responsibility.” [New York Times, 4/3/1992] In an angry editorial in the Orlando Sun-Sentinel, Tom Kelly will blast Bush and the members of both parties whom he will say “are as comfortable with the present arrangement as fat cats reclining on a plush sofa.” Kelly will write that Bush’s characterization of the bill as “incumbent protection” is insulting and inaccurate. The result of the veto, he will write, is that Bush himself becomes the incumbent most protected by the current system, and “the prospects for meaningful change in a disgraceful system by which special interests manipulate public policy with the leverage of big bucks have been set back to Square One—again.” Kelly will note that at the recent “President’s Dinner” that raised $9 million in contributions, the costs were plainly delineated: ”$1,500 per plate for dinner, $15,000 to sit with a congressman, $30,000 for a senator or Cabinet member, $92,000 for a photograph with the president, and $400,000 to share head-table chitchat with Bush himself.” Presidential spokesman Marlin Fitzwater admits that the contributors were buying “access” to the administration, access, Kelly will write, is “all too often is denied to the people who need government services most and those who have to pay the bills.” All of the $9 million raised at the dinner, and the monies raised at other such events, becomes so-called “soft money,” which Kelly will note has been labeled “sewer money” by the New York Times. While the law pretends that such monies go for voter turnout and education efforts, Kelly will write, it usually goes into buying negative television ads financed by third-party political organizations. Kelly will call Bush’s call to eliminate PACs “fraudulent,” writing, “The same power brokers could simply reorganize as ‘ideological’ lobbies and resume bribery as usual.” [Orlando Sun-Sentinel, 5/15/1992]

Entity Tags: Bush administration (41), Campaign Finance Reform Act of 1992, Fred Wertheimer, George Herbert Walker Bush, Tom Kelly (Volusia County), Marlin Fitzwater, US Congress

Timeline Tags: Civil Liberties

The Supreme Court rules in the case of Colorado Republican Federal Campaign Committee v. Federal Election Committee. The case originated with advertisements run by the Colorado Republican Party (CRP) in 1986 attacking the Colorado Democratic Party’s likely US Senate candidate. Neither party had yet selected its candidate for that position. The Federal Election Commission (FEC) sued the CRP’s Federal Campaign Committee, saying that its actions violated the “party expenditure provision” of the Federal Election Campaign Act (FECA—see February 7, 1972, 1974, and May 11, 1976) by spending more than the law allows. The CRP in turn claimed that FECA violated its freedom of speech, and filed a counterclaim. A Colorado court ruled in favor of the CRP, dismissing the counterclaim as moot, but an appeals court overturned the lower court’s decision. The Supreme Court rules 7-2 in favor of the FEC. The decision is unusual, lacking a clear majority, but being comprised of a “plurality” of concurrences. The majority opinion, such as it is, is authored by Justice Stephen Breyer, one of the Court liberals, and is joined by fellow liberal David Souter and conservative Sandra Day O’Connor. Conservatives Anthony Kennedy, William Rehnquist, and Antonin Scalia go farther than Breyer’s majority decision, writing that the provision violates the First Amendment when it restricts as a “contribution” a political party’s spending “in cooperation, consultation, or concert, with a candidate.” In yet another concurrence, conservative Clarence Thomas argues that the entire provision is flatly unconstitutional. Liberals John Paul Stevens and Ruth Bader Ginsburg dissent, agreeing with the appeals court. [Oyez (.org), 2011; Moneyocracy, 2/2012] In 2001, the Court will revisit the case and find its initial ruling generally sound, though the later decision will find that some spending restrictions are constitutional. In the revisiting, four of the Court’s five conservatives will dissent, with the liberals joined by O’Connor. [Oyez (.org), 2011; Moneyocracy, 2/2012]

Entity Tags: Colorado Republican Party, Colorado Democratic Party, Antonin Scalia, Anthony Kennedy, US Supreme Court, Stephen Breyer, William Rehnquist, Clarence Thomas, Federal Election Campaign Act of 1972, David Souter, Colorado Republican Party Federal Campaign Committee, Sandra Day O’Connor, Ruth Bader Ginsburg, Federal Election Commission, John Paul Stevens

Timeline Tags: Civil Liberties

A number of political action committees, or PACs (see 1944, February 7, 1972, 1975, and November 28, 1984), created by “independent” organizations inform the Federal Election Commission (FEC) that they will not disclose the names of donors or amounts of funds raised, because they are not expressly advocating for or against any individual candidate. These PACs become known as “527 groups,” based on Section 527 of the federal tax code. Congress soon passes a disclosure mandate forcing PACs to reveal their donors and information about their fundraising and expenditures (see June 30, 2000). By 2005, many PACs begin registering themselves as 501(c)4 “advocacy nonprofit” organizations. Under the law, such groups can only conduct certain “political advocacy” activities, but in return do not have to disclose their contributors or information about their financing. [National Public Radio, 2012]

Entity Tags: US Congress, Federal Election Commission

Timeline Tags: Civil Liberties

Sam Wyly.Sam Wyly. [Source: Forbes]A group called “Republicans for Clean Air” begins running ads attacking Republican presidential candidate John McCain in New York. The ads accuse McCain of voting against alternative energy sources. At the same time, ads paid for by the campaign of Republican presidential candidate George W. Bush accuse McCain of labeling breast cancer programs as wasteful. Governor George Pataki (R-NY) accuses McCain of voting “anti-New York” in the Senate, while Representative John Sweeney (R-NY) says McCain was wrong to vote for raising heating oil taxes, a major issue in cold-weather states such as New York. [Salon, 3/2/2000] The group also runs ads in primary states claiming that Bush, as Texas governor, passed laws intended to reduce air pollution in Texas by over a quarter-million tons a year. The evidence does not support the claim; what few anti-pollution laws have taken effect in Texas were written mostly by Democratic state legislators and signed into law, often reluctantly, by Bush.
RFCA Consists of Two Texas Billionaires - An investigation by the New York Times soon proves that “Republicans for Clean Air” (RFCA) is funded by Dallas billionaire Sam Wyly, a Bush supporter, who has contributed $2.5 million to the group. Wyly and his brother Charles Wyly, also a RFCA contributor, are the co-founders of Sterling Software in Dallas. They are also owners, founders, or executives in firms that own Bonanza Steakhouse, the “Michael’s” chain of arts and craft stores, the hedge fund Maverick Capital, and more. Both are heavy Bush campaign donors, having donated over $210,000 to the Bush gubernatorial campaigns. They are apparently the only two members of the RFCA. Craig McDonald of Texans for Public Justice says of Sam Wyly: “He’s one of the elite. He’s one of the movers and shakers. He’s very big money in the state.” McCain’s campaign accuses the Bush campaign of being responsible for the advertising, and says the Bush campaign is trying to evade campaign finance laws (see February 7, 1972 and May 11, 1992). The McCain campaign complains that the Bush campaign is using unethical and possibly illegal campaign tactics to “steal” the primary election by saturating New York, California, and Ohio with anti-McCain ads just days before the primary elections in those critical states. “There is no question in our campaign’s mind that the ads are being sponsored, coordinated, and managed by the George Bush for President campaign,” says McCain’s campaign manager Rick Davis. “I think it’s incumbent on the Bush campaign to prove somehow that they are not involved in this incredible act.” Davis has no direct evidence for his claim, but cites what the Times calls “a tangle of personal, business, and political relationships between Mr. Wyly and his family and the Bush campaign to suggest that their interests were so close as to be indistinguishable.” One of those relationships cited by Davis is the fact that RFCA uses the same public relations firm, Multi Media Services Corporation, as Pataki, who chairs the Bush campaign in New York and who appears in Bush campaign ads. Bush himself denies any connection with RFCA, and says: “There is no coordination.… I had no idea the ad was going to run.” Wyly also disclaims any coordination with the Bush campaign. He says he laughed during the production of the commercials, and mused over how “surprised” the Bush campaign would be to see them on the airwaves. McCain uses the ads to draw attention to one of his favorite campaign themes, campaign finance reform. On a recent morning talk show, McCain said: “I think maybe the Bush campaign is out of money and somebody’s putting in $2 million to try to hijack the campaign here in New York. Nobody knows where it came from. [When McCain filmed the interview, Wyly’s identity had not been revealed.] We’ll probably find out, but probably too late. This is why campaign finance reform is so important.” [New York Times, 3/3/2000; New York Times, 3/4/2000; New York Times, 3/5/2000; San Jose Mercury News, 3/6/2000; Scott E. Thomas and Danny Lee McDonald, 4/2002; New York Times, 8/23/2010] The press soon learns that Charles Wyly is an official member of the Bush presidential campaign, as a “Pioneer” donor, and has contributed the maximum amount under the law. [New York Times, 3/4/2000] It also learns that RFCA’s stated address is a post office box in Virginia belonging to Lydia Meuret, a consultant who runs a political action committee headed by Representative Henry Bonilla (R-TX), a Bush ally. Meuret denies any connection between RFCA and Bonilla or Bonilla’s PAC, but admits she is a consultant to both. [New York Times, 3/3/2000]
'527' Group Operates in Campaign Finance Law 'Gray Areas' - RFCA is a “527” group (see 2000 - 2005); such groups operate in a “gray area” of campaign law, as the monies they use are not contributed directly to a candidate or a political party. However, they are banned from coordinating their efforts with candidate campaigns. Their ads must not make direct appeals to voters in support of, or opposition to, a particular candidate. If they comply with this portion of the law, the donors behind the ads, and the amounts they contribute, do not have to be identified. The law does not even require the groups to declare their existence, as was the case for a time with RFCA. The Times reports, “While some of the groups behind issue advertising are vague about their membership, Mr. Wyly’s effort was a rare instance in which commercials were aired without any hint of their origin.” Fred Wertheimer of Democracy 21, a group advocating campaign finance reform, says of so-called “issue” ads such as these: “The secrecy aspects of this are taking campaign finance problems to yet another new and dangerous level. What we’re seeing here is the use of unlimited, undisclosed money to influence a federal election, and that’s totally at odds with the whole notion of campaign finance disclosure.” [New York Times, 3/3/2000; San Jose Mercury News, 3/6/2000; New York Times, 3/29/2000; New York Times, 8/23/2010] Progressive columnist Molly Ivins calls the RFCA ads examples of “sham issue” advertisements. [San Jose Mercury News, 3/6/2000]
Bush Claims RFCA Ads Not Helpful - After Bush secures the nomination over McCain, he tells a reporter, “I don’t think these [Republicans for Clean Air] ads are particularly helpful to me.” But Slate reporter Chris Suellentrop writes: “Of course they were helpful. Otherwise Bush would have called the group and told them to call off the dogs.” [Slate, 8/25/2000]
Wyly Brothers Will Fund 2004 'Swift Boat' Campaign, Later Charged with Securities Fraud, Insider Trading - A month after the ads air, Sam Wyly says he will no longer involve himself in politics. Wyly, who says he is a staunch environmentalist, says he admires Bush’s Democratic challenger, Vice President Al Gore (whom Wyly has called a regulation-happy environmentalist, and whom Wyly has considered attacking with television ads). Of his foray into the presidential campaign, Wyly says: “I learned from it. Many of you are aware of my recent foray into presidential politics. It is to be my last.” In 2004, the Wyly brothers will be two of the primary donors behind the “Swift Boat” campaign that will slander and impugn the character and military service of presidential candidate John Kerry (D-MA). In 2010, the Wyly brothers will be charged with securities fraud and insider trading that netted them at least $581 million in illegal gains, according to the Securities and Exchange Commission. [New York Times, 4/5/2000; New York Times, 8/23/2010]

Entity Tags: George W. Bush presidential campaign 2000, Charles Wyly, Sam Wyly, George E. Pataki, Fred Wertheimer, George W. Bush, Chris Suellentrop, Rick Davis, Albert Arnold (“Al”) Gore, Jr., New York Times, John McCain, John Kerry, John E. Sweeney, John McCain presidential campaign 2000, Henry Bonilla, Lydia Meuret, Molly Ivins, Republicans for Clean Air

Timeline Tags: 2000 Elections, Civil Liberties

The Senate approves bipartisan legislation, the so-called “Stealth PAC” bill, that requires secretive tax-exempt organizations that raise and spend money on political activities to reveal their donors and expenditures. The so-called “527” organizations have flourished because until now, Section 527 of the Internal Revenue Code has protected both their nonprofit status and their right to keep their donors and funding information secret (see 2000 - 2005). President Clinton will sign the bill into law. It is the first major legislative change in American campaign finance law in two decades (see January 8, 1980). Under the new law, Section 527 organizations raising over $25,000 a year must comply with federal campaign law, file tax returns, disclose the identities of anyone contributing over $200, and report expenditures in excess of $500. That information will be reported to the IRS every three months during an election year, and the information will be posted on the Internet. The bill takes effect as soon as Clinton signs it into law.
Passed Despite Republican Opposition - The House passed the bill on a 385-39 vote; only six Senate Republicans vote against the bill. Senate and House Republican leaders have blocked the bill for months. Clinton says, “Passage of this bill proves that public interest can triumph over special interests,” and urges Congress to pass a more comprehensive overhaul of campaign finance law. Senator Russ Feingold (D-WI) says, “I’m not pretending we don’t have other loopholes to close, but those groups that have found this an easy, painless way to go on the attack are now going to have to scramble to figure out different ways.” Some ways that groups will avoid the requirements of the new law are to reorganize themselves as for-profit organizations—thus losing their tax exemptions—or trying to reorganize as other types of nonprofits. Many expect donors to rush big contributions to these 527 groups before the new law takes effect. Mike Castle (R-DE), a House Republican who supports the bill, says, “I am sure that the phones are ringing over on K Street right now about how to get money into the 527s before they are eliminated.” Senator Mitch McConnell (R-KY), who helped Senate Republicans block the bill and who voted no on its passage, now calls it a “relatively benign bill,” downplaying his stiff opposition to the bill and to campaign finance regulation in general. McConnell advised Republicans up for re-election in November 2000 to vote yes for the bill “to insulate them against absurd charges that they are in favor of secret campaign contributions or Chinese money or Mafia money.” McConnell explains that he voted against the bill because it infringes on freedom of speech (see December 15, 1986). Governor George W. Bush (R-TX), the GOP’s presidential candidate, issues a statement supporting the bill: “As I have previously stated, I believe these third-party groups should have to disclose who is funding their ads. As the only candidate to fully disclose contributors on a daily basis, I have always been a strong believer in sunshine and full disclosure.” Bush defeated Republican challenger John McCain (R-AZ) in part because of the efforts of Republicans for Clean Air, a 527 group headed by Bush financier Sam Wyly and which spent $2.5 million attacking McCain’s environmental record (see March 2000 and After). McCain helped push the current bill through the Senate, and says: “This bill will not solve what is wrong with our campaign finance system. But it will give the public information regarding one especially pernicious weapon used in modern campaigns.”
527s Used by Both Parties - Both Democrats and Republicans have created and used 527 groups, which are free from federal oversight as long as they do not advocate for or against a specific candidate. The organizations use donations for polling, advertising, telephone banks, and direct-mail appeals, but are not subject to federal filing or reporting rules as long as they do not advocate the election or defeat of a specific candidate. Some groups, such as the Republican Majority Issues Committee, a 527 organization aligned with House Majority Leader Tom DeLay (R-TX), intend to continue functioning as usual even after the bill is signed into law, while they examine their legal options. The committee head, Karl Gallant, says his organization will “continue on our core mission to give conservative voters a voice in the upcoming elections.” The Republican Majority Issues Committee is considered DeLay’s personal PAC, or political action committee; it is expected to funnel as much as $25 million into closely contested races between now and Election Day. Gallant says the organization will comply with the new law, but complains, “We are deeply concerned that Congress has placed the regulation of free speech in the hands of the tax collectors.” He then says: “We’re not going anywhere. You will have RMIC to amuse and delight you throughout the election cycle.” The Sierra Club’s own 527 organization, the Environmental Voter Education Campaign, says it will also comply “eagerly” with the new law, and will spend some $8 million supporting candidates who match the Sierra Club’s pro-environmental stance. “We will eagerly comply with the new law as soon as it takes effect,” says the Sierra Club’s Dan Weiss. “But it’s important to note that while we strongly support the passage of this reform, 527 money is just the tip of the soft-money iceberg. Real reform would mean banning all soft-money contributions to political parties.” Another 527 group affected by the new law is Citizens for Better Medicare, which has already spent $30 million supporting Republican candidates who oppose a government-run prescription drug benefit. Spokesman Dan Zielinski says the group may change or abandon its 527 status in light of the new law. “The coalition is not going away,” he says. “We will comply with whatever legal requirements are necessary. We’ll do whatever the lawyers say we have to do.” A much smaller 527, the Peace Voter Fund, a remnant of the peace movement of the 1970s and 80s, says it intends to engage in voter education and issue advocacy in about a dozen Congressional races. Executive director Van Gosse says the group will follow the new law and continue as before: “Disclosure of donors is not a major issue for us. So we’ll just say to donors in the future that they will be subject to federal disclosure requirements. It’s no biggie.” [New York Times, 6/30/2000; OMB Watch, 4/1/2002; Huffington Post, 9/28/2010]

Entity Tags: Karl Gallant, John McCain, Environmental Voter Education Campaign, Dan Zielinski, Dan Weiss, Citizens for Better Medicare, Van Gosse, US Senate, William Jefferson (“Bill”) Clinton, George W. Bush, Republican Majority Issues Committee, Republicans for Clean Air, Peace Voter Fund, Mike Castle, Mitch McConnell, Tom DeLay, Sierra Club, Sam Wyly, Russell D. Feingold

Timeline Tags: Civil Liberties

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

In the case of Federal Election Commission v. Beaumont, the Supreme Court rules that the ban on direct corporate donations by the Federal Election Campaign Act (FECA—see February 7, 1972) is constitutional. The case concerns a challenge to the law by Christine Beaumont and North Carolina Right to Life (NCRL), an anti-abortion advocacy group that sued for the right to donate directly to political candidates under the First Amendment. Beaumont and the NCRL were twice denied in lower courts, and have appealed to the Supreme Court. In a 7-2 decision, the Court upholds the ban. The majority opinion is written by Justice David Souter, who rules that the ban on direct contributions is consistent with the First Amendment. The Court cannot find in favor of NCRL, Souter writes, “without recasting our understanding of the risks of harm posed by corporate political contributions, of the expressive significance of contributions, and of the consequent deference owed to legislative judgments on what to do about them.” Two of the most conservative justices on the Court, Antonin Scalia and Clarence Thomas, dissent, arguing that the ban is not constitutional. [Brennan Center for Justice, 6/16/2003; Oyez (.org), 2009]

Entity Tags: David Souter, Antonin Scalia, Christine Beaumont, Federal Election Campaign Act of 1972, Clarence Thomas, US Supreme Court, North Carolina Right to Life

Timeline Tags: Civil Liberties

The Supreme Court rules in the case of McConnell v. Federal Election Commission. The case addresses limitations on so-called “soft money,” or contributions to a political party not designated specifically for supporting a single candidate, that were imposed by the Bipartisan Campaign Reform Act of 2002 (BCRA), often known as the McCain-Feingold law after its two Senate sponsors (see March 27, 2002). A three-judge panel has already struck down some of McCain-Feingold’s restrictions on soft-money donations, a ruling that was stayed until the Court could weigh in. Generally, the Court rules that the “soft money” ban does not exceed Congress’s authority to regulate elections, and does not violate the First Amendment’s free speech clause. The ruling is a 5-4 split, with the majority opinion written by liberal Justice John Paul Stevens and his conservative colleague Sandra Day O’Connor. The opinion finds that the “minimal” restrictions on free speech are outweighed by the government’s interest in preventing “both the actual corruption threatened by large financial contributions and… the appearance of corruption” that might result from those contributions. “Money, like water, will always find an outlet,” the justices write, and the government must take steps to prevent corporate donors from finding ways to subvert the contribution limits. The majority is joined by liberal justices Stephen Breyer, Ruth Bader Ginsburg, and David Souter, and the four other conservatives on the court—Anthony Kennedy, William Rehnquist, Antonin Scalia, and Clarence Thomas—dissent. [Legal Information Institute, 12/2003; Oyez (.org), 2011] The case represents the consolidation of 11 separate lawsuits brought by members of Congress, political parties, unions, and advocacy groups; it is named for Senator Mitch McConnell, who sued the FEC on March 27, 2002, the same day the bill was signed into law. Due to the legal controversy expected to be generated by the law and the need to settle it prior to the next federal election, a provision was included in the BCRA that provided for the case to be heard first by a special three-judge panel and then appealed directly to the Supreme Court. This District of Columbia district court panel, comprised of two district court judges and one circuit court judge, was inundated with numerous amicus briefs, almost 1,700 pages of related briefs, and over 100,000 pages of witness testimony. The panel upheld the BCRA’s near-absolute ban on the usage of soft money in federal elections, and the Supreme Court agrees with that finding. However, the Court reverses some of the BCRA’s limitations on the usage of soft money for “generic party activities” such as voter registration and voter identification. The district court overturned the BCRA’s primary definition of “noncandidate expenditures,” but upheld the “backup” definition as provided by the law. Both courts allow the restrictions on corporate and union donations to stand, as well as the exception for nonprofit corporations. The Court upholds much of the BCRA’s provisions on disclosure and coordinated expenditures. The lower court rejected the so-called “millionaire provisions,” a rejection the Supreme Court upholds. A provision banning contributions by minors was overturned by the lower court, and the Court concurs. The lower court found the provision requiring broadcasters to collect and disclose records of broadcast time purchased for political activities unconstitutional, but the Court disagrees and reinstates the requirement. [Legal Information Institute, 12/2003] McConnell had asked lawyer James Bopp Jr., a veteran of anti-campaign finance lawsuits and the head of McConnell’s James Madison Center for Free Speech, to take part in the legal efforts of the McConnell case. However, before the case appeared before the Supreme Court, McConnell dropped Bopp from the legal team due to a dispute over tactics. [New York Times, 1/25/2010] The 2010 Citizens United decision will partially overturn McConnell (see January 21, 2010).

Entity Tags: Federal Election Commission, David Souter, Bipartisan Campaign Reform Act of 2002, Antonin Scalia, Anthony Kennedy, William Rehnquist, US Supreme Court, Stephen Breyer, Sandra Day O’Connor, National Rifle Association, Mitch McConnell, John Paul Stevens, Ruth Bader Ginsburg, James Bopp, Jr, Clarence Thomas

Timeline Tags: Civil Liberties

Peter Lewis of Progressive Insurance.Peter Lewis of Progressive Insurance. [Source: Forbes]Billionaire George Soros, a frequent contributor to Democratic and liberal causes, gives $23.7 million to a number of “527s,” politically active groups that operate independently of particular campaigns or candidates (see 2000 - 2005, March 2000 and After, and June 30, 2000). Peter Lewis, the CEO of Progressive Insurance, gives almost that much, with donations totaling $23.247 million. Their donations include:
bullet $16 million (Lewis) and $12,050,000 (Soros) to the Joint Victory Campaign 2004, an “umbrella” fundraising entity that distributes funds to two other major groups, America Coming Together (ACT) and The Media Fund.
bullet $7,500,000 (Soros) and $2,995,000 (Lewis) to America Coming Together.
bullet $2,500,000 (Soros) and $2,500,000 (Lewis) to MoveOn.org.
bullet $650,000 (Lewis) and $325,000 (Soros) to the Young Democrats of America.
bullet $485,000 (Lewis) to the Marijuana Policy Project.
bullet $325,000 (Soros) to Democrats 2000.
bullet $300,000 (Soros) to the Real Economy Group.
bullet $300,000 (Soros) to the Campaign for America’s Future.
bullet $250,000 (Soros) and $250,000 (Lewis) to Democracy for America.
bullet $250,000 (Soros) to Safer Together 04.
bullet $117,220 (Lewis) to Stonewall Democrats United.
bullet $100,000 (Lewis) to the Gay and Lesbian Victory Fund.
bullet $100,000 (Lewis) to the Sierra Club.
bullet $50,000 (Lewis) to PunkVoter.Inc. [Center for Responsive Politics, 2012; Discover the Secrets, 2012; Center for Responsive Politics, 6/11/2012; Center for Responsive Politics, 6/11/2012]

Entity Tags: George Soros, America Coming Together, Young Democrats of America, Democrats 2000, Democracy for America, Gay and Lesbian Victory Fund, Campaign for America’s Future, Stonewall Democrats United, The Media Fund, MoveOn (.org), Marijuana Policy Project, Sierra Club, Peter Lewis, Safer Together 04, PunkVoter.Inc., Joint Victory Campaign, Real Economy Group

Timeline Tags: Civil Liberties, 2004 Elections

Wisconsin Right to Life logo.Wisconsin Right to Life logo. [Source: Dane101 (.com)]After the passage of the Bipartisan Campaign Reform Act of 2002 (BCRA—see March 27, 2002), also known as the McCain-Feingold law after its original sponsors, and the 2003 McConnell Supreme Court decision that upheld the law (see December 10, 2003), corporations and labor unions are prohibited from airing ads that attack candidates but avoid specific language that turns the ads from general commercials into “campaign” ads within 30 days of a primary election or 60 days of a federal election. Wisconsin Right to Life (WRTL) comes to anti-abortion and anti-campaign finance lawyer James Bopp Jr. (see November 1980 and After) with a dilemma. The WRTL wants to run ads attacking Senator Russ Feingold (D-WI), a powerful advocate of abortion rights, for his record of opposing President Bush’s judicial nominees. It intends to use the ads as campaign attack ads against Feingold, but skirt the BCRA’s restrictions by not specifically discouraging votes for him, thereby giving the appearance of “issue” ads and thusly not running afoul of the BCRA. Bopp is worried that the McConnell decision, just rendered, would make the Court reluctant to reverse itself so quickly. Bopp knows that the McConnell decision was in response to a broad challenge to the BCRA that argued the law was unconstitutional in all circumstances. Bopp decides to challenge the BCRA on behalf of the WRTL on narrower grounds—to argue that the specific application of the BCRA in this instance would violate the group’s First Amendment rights. He decides not to file a complaint with the Federal Election Commission (FEC) because of that agency’s notoriously slow response time, but instead files a preemptive challenge in court objecting to the BCRA’s ban on “issue advertisements” in the weeks before elections. Bopp is encouraged by the prospects of a court challenge that may wend its way to the Supreme Court, as the “swing” vote in McConnell was Justice Sandra Day O’Connor, who has been succeeded by the more conservative Samuel Alito (see October 31, 2005 - February 1, 2006). [New Yorker, 5/21/2012] Bopp will prove to be correct, as the Supreme Court will find in WRTL’s favor (see June 25, 2007).

Entity Tags: Russell D. Feingold, Federal Election Commission, Bipartisan Campaign Reform Act of 2002, George W. Bush, Samuel Alito, James Bopp, Jr, Wisconsin Right to Life, US Supreme Court, Sandra Day O’Connor

Timeline Tags: Civil Liberties, 2004 Elections

The Wall Street Journal’s Stephen Moore interviews reclusive billionaire Charles Koch, the head of the Koch Brothers oil empire. Among the items of interest in the interview is Koch’s admission that he, along with his brother David (see 1977-Present, 1979-1980, 1981-2010, 1984 and After, and Late 2004), coordinates the funding of the conservative infrastructure of some of the most influential front groups, political campaigns, think tanks, media outlets, and other such efforts through a semiannual meeting with wealthy conservative donors. (Moore himself receives Koch funding for his work, according to a Think Progress report published four years later. In return, Moore is quite laudatory in the interview, writing that Koch is a “creative forward-thinking… professorial CEO” who “is immersed in the ideas of liberty and free markets.”) Koch tells Moore that his basic goal is to strengthen what he calls the “culture of prosperity” by eliminating “90 percent” of all laws and government regulations. Moore writes of the twice-yearly conference: “Mr. Koch’s latest crusade to spread the ideas of liberty has been his sponsorship of a twice-yearly conference that gathers together many of the most successful American entrepreneurs, from T. Boone Pickens to former Circuit City CEO Rick Sharp. The objective is to encourage these captains of industry to help fund free-market groups devoted to protecting the fragile infrastructure of liberty. That task seems especially critical given that so many of the global superrich, like George Soros and Warren Buffett, finance institutions that undermine the very system of capitalism that made their success possible (see January - November 2004). Isn’t this just the usual rich liberal guilt, I ask. ‘No,’ he says, ‘I think they simply haven’t been sufficiently exposed to the ideas of liberty.’” [Wall Street Journal, 5/6/2006; Think Progress, 10/20/2010]

Entity Tags: Think Progress (.org), Charles Koch, Wall Street Journal, David Koch, Stephen Moore

Timeline Tags: Civil Liberties

Newsweek’s Jonathan Darman reports that Citizens United (CU), a conservative lobbying and advocacy group headed by activist David Bossie, is producing an unflattering documentary on Senator Hillary Clinton (D-NY), the current frontrunner for the Democratic nomination for president in 2008. The title of the story highlights Clinton’s “likability gap,” but the story itself focuses on the “grudge” borne by Bossie and CU against Clinton and the presidency of her husband, Bill Clinton. The documentary is scheduled for release in theaters in the fall of 2007, Darman reports. One of its potential targets is a generation of young voters who know little about the Whitewater and Lewinsky scandals that dogged the Clinton administration. Bossie says, “There’s an enormous market for Hillary Clinton information.” R. Emmett Tyrell Jr., the editor of the American Spectator and the author of numerous books purporting to tell the truth behind the Clinton allegations, says there are “active research teams” working to expose Clinton. “They’re out there,” he says. “I get calls all the time.” Clinton’s campaign says the documentary is “old news” and “cash for rehash.” Darman notes: “For all the charges through the years, none has ever stuck. Arguably the most-investigated woman in contemporary American life moved from tabloid target in the White House to winning a Senate seat in one of the nation’s most contentious states. It’s her resilience and capacity to survive and thrive against all comers that partly fuels the haters’ fury.” However, some voters still harbor distrust and resentment towards Clinton, stemming in part from her reputation as “secretive, controlling, and paranoid,” as Darman characterizes her critics’ feelings towards her, as first lady. Her negative perception polling is remarkably high for a potential presidential candidate. Darman writes: “[T]he real problem many Democratic voters have with Clinton is the sneaking suspicion that with so much of the country against her, she can never win a general election. Clinton’s fate may well come down to her ability to deal with a vexing question: what is it about me that so many people don’t like?” Clinton is, Darman writes, “a comic-book villain for her detractors—a man-eating feminist, they claimed, who allegedly threw lamps at her husband, communed psychically with Eleanor Roosevelt, and lit a White House Christmas tree adorned with sex toys. The narrative of depravity—a tissue of inventions by conservatives—was often hard to follow. Was she, as they imagined her, a secret lesbian who fostered a West Wing culture of rampant homosexuality? Or was she the duplicitous adulteress who slept with former law partner Vincent Foster, ordered his death, and then made it look like a suicide? Disjointed as they may have been, Hillary horror tales soon became big business on talk radio.” But the attacks have not weakened her appreciably, and may have strengthened her as a candidate. [Newsweek, 6/17/2007] The liberal watchdog organization Media Matters notes that Darman fails to alert his readers to what it calls Bossie’s past “slimy tactics” (see May 1998). [Media Matters, 6/11/2007] The documentary will not be released until the summer of 2008 (see January 10-16, 2008), and will become the focus of a landmark Supreme Court decision regarding campaign finance (see January 21, 2010).

Entity Tags: Media Matters, Clinton administration, Citizens United, David Bossie, Jonathan Darman, R. Emmett Tyrell Jr, Hillary Clinton, Newsweek

Timeline Tags: Domestic Propaganda

The Supreme Court, ruling in the Wisconsin Right to Life v. Federal Election Commission case, finds that some political advertisements can be exempted from the “electioneering communications” provision of the McCain-Feingold campaign reform act (see March 27, 2002). The case stems from attempts by an anti-abortion advocacy group, Wisconsin Right to Life (WRTL), to run ads asking viewers to contact their senators and urge them to oppose filibusters of judicial nominees. WRTL tried to run its ads during the 30 and 60-day “blackout” periods before the upcoming 2004 elections, but because it accepted corporate contributions and was itself incorporated, the McCain-Feingold restrictions prevented the ads from running. WRTL argued that the ads were not targeting candidates, but were strictly issue-related (see Mid-2004 and After). The case was initially dismissed, but the Supreme Court reversed that decision and remanded the case back to the lower courts. The Federal Election Commission (FEC) argued that the ads were intended to influence US Senate elections in Wisconsin, and thusly should be regulated by McCain-Feingold. A district court disagreed, ruling against the FEC and finding that the ads were “protected speech” (see January 30, 1976), though it limited its findings solely to the WRTL ads and specified that its ruling was not to apply to other cases. The FEC appealed the case to the US Supreme Court, which in a 5-4 decision finds that the district court’s ruling is valid. Chief Justice John Roberts writes the majority opinion, which establishes broad exemptions for advertisements that could be “reasonably” interpreted as being about legislative issues and not directed on behalf of, or against, a particular candidate. As long as “issue ads” do not contain the “functional equivalent” of express advocacy for or against a candidate, the Roberts opinion holds, and the advertisements are legal. The ads involve “core political speech” that is protected by the First Amendment, Roberts finds: “We give the benefit of the doubt to speech, not censorship.” Justice David Souter writes the dissenting opinion. Justices Antonin Scalia and Clarence Thomas write a concurring opinion that joins them with Roberts and the other two conservative justices, but in their concurrence, they say they would overturn the McCain-Feingold law in its entirety. [Connecticut Network, 2006 pdf file; Los Angeles Times, 6/26/2007; FindLaw, 2011; National Public Radio, 2012; Oyez (.org), 7/1/2012] Roberts is careful in the language of his majority opinion, writing that “the First Amendment requires us to err on the side of protecting political speech rather than suppressing it.” He does not directly advocate for the overturning of the McCain-Feingold law, but referring to the 2003 McConnell decision that upheld the law (see December 10, 2003), he writes, “We have no occasion to revisit that determination today.” In 2012, reporter Jeffrey Toobin will write of Roberts’s use of the word “today,” “To those who know the language of the Court, the Chief Justice was all but announcing that five justices would soon declare the McCain-Feingold law unconstitutional.” [New Yorker, 5/21/2012] Toobin is referring to the 2010 Citizens United decision that will overturn most of the law (see January 21, 2010).

Entity Tags: John G. Roberts, Jr, Clarence Thomas, David Souter, Antonin Scalia, Federal Election Commission, Wisconsin Right to Life, US Supreme Court, Jeffrey Toobin

Timeline Tags: Civil Liberties

A poster promoting ‘Hillary: The Movie.’A poster promoting ‘Hillary: The Movie.’ [Source: New York Times]The conservative lobbying group Citizens United (CU—see May 1998 and (May 11, 2004)) releases a film entitled Hillary: The Movie. The film is a lengthy diatribe attacking the character and career of Senator Hillary Clinton (D-NY), a leading candidate for the Democratic presidential nomination. Large portions of the film are comprised of conservative critics launching attacks against the personalities and character of Clinton and her husband, former President Clinton. CU president David Bossie (see May 1998) says he based his film on a documentary, Fahrenheit 9/11, released in 2004 by liberal filmmaker Michael Moore (see August 6, 2004), and calls it “a rigorously researched critical biography” comparable to the material presented on political talk shows such as Meet the Press. [Washington Post, 3/15/2009; Moneyocracy, 2/2012] Bossie intended for the film to be released in late 2007 and impact the 2008 race in the same way that he believes Fahrenheit 9/11 impacted the 2004 race. A cable company made the film, at a cost of $1.2 million, available for free to viewers on “video on demand.” Bossie also scheduled a small theater run for the film, but his primary focus was always cable television and the accompanying television advertisements. Knowing the film will probably run afoul of campaign law, he hired lawyers, first James Bopp Jr. (a former member of the far-right Young Americans for Freedom—YAF—and the former general counsel for the National Right to Life Committee—see November 1980 and After) [New Yorker, 5/21/2012] and later Theodore B. Olson, the former solicitor general under the Bush administration. Olson will later say the film is “a critical biographical assessment” that provides “historical information about the candidate and, perhaps, some measure of entertainment as well.” The New York Times calls it “a scathingly hostile look at Mrs. Clinton” replete with “ripe voice-overs, shadowy re-enactments, and spooky mood music.” The film also contains interviews and material from mainstream media reporters, and interviews with figures such as former CIA agent Gary Aldrich, who wrote a “tell-all” book about the Clinton administration, and with Kathleen Willey, who has claimed that Bill Clinton once made an unwelcome sexual advance towards her. Reviewer Megan Carpentier of Radar Online will trounce the movie, saying that it “scrolls through more than a decade of press clippings and a treasure trove of unflattering pictures in its one-sided romp” and will advise potential viewers to watch it “while inebriated in the manner of your choosing, and only if you don’t pay $10 for the privilege.” [New York Times, 3/5/2009] Bossie claims the movie has nothing to do with the impending primary elections. CU intends to show the movie in a small number of theaters but primarily on “video on demand” cable broadcasts, with accompanying television advertisements. In return for a $1.2 million fee, a cable television consortium has agreed to make the movie freely available to its customers as part of what CU calls its “Election ‘08” series. (CU has another negative documentary on Clinton’s Democratic challenger Barack Obama in the works—see October 28-30, 2008—but apparently has no plans to air any documentaries on Republican candidate John McCain or any other Republican presidential candidates.) However, the Federal Election Commission (FEC) refuses to allow the film to be aired on cable channels, or advertised for theater release, because the FEC considers the film “electioneering” and thus subject to campaign finance law (see March 27, 2002) restrictions. Moreover, the film and its planned distribution are funded by corporate donations. [United States District Court for the District Of Columbia, 1/15/2008; Richard Hasen, 1/15/2008; New Yorker, 5/21/2012] Bossie claims the film takes no position on Clinton’s candidacy, and says that if he had to vote between Hillary Clinton and Barack Obama, he would vote for Clinton. [New York Times, 3/5/2009]
Court Fight - Bopp, CU’s original lawyer, decides to pursue the same general aggressive course that he took in a recent successful Supreme Court campaign finance case, the Wisconsin Right to Life (WRTL) decision (see Mid-2004 and After). The Hillary film was envisioned from the outset to serve multiple purposes: to advance conservative ideology, damage Clinton’s presidential chances (despite Bossie’s claims), and generate profits. Bopp knows that the FEC would likely classify the film as a political advertisement and not a work of journalism or entertainment (see August 6, 2004), and therefore would fall under campaign law restrictions. Before the film is officially released, Bopp takes the film to the FEC for a ruling, and when the FEC, as expected, rules the film to be “electioneering communication” that comes under campaign law restrictions, Bopp files a lawsuit with the Washington, DC, federal district court. The court rules in favor of the FEC judgment, denying CU its request for a preliminary injunction against the FEC’s ruling. The court specifically finds that the WRTL decision does not apply in this case. “[I]f the speech cannot be interpreted as anything other than an appeal to vote for or against a candidate, it will not be considered genuine issue speech even if it does not expressly advocate the candidate’s election or defeat,” the court states. The court also questions CU’s statement that the film “does not focus on legislative issues.… The movie references the election and Senator Clinton’s candidacy, and it takes a position on her character, qualifications, and fitness for office.” Film commentator Dick Morris has said of the film that it will “give people the flavor and an understanding of why she should not be president.” The court rules, “The movie is susceptible of no other interpretation than to inform the electorate that Senator Clinton is unfit for office, that the United States would be a dangerous place in a President Hillary Clinton world, and that viewers should vote against her.” (During arguments, Bopp says that the film is much like what a viewer would see on CBS’s evening news show 60 Minutes, and Judge Royce Lamberth laughs aloud, saying: “You can’t compare this to 60 Minutes. Did you read this transcript?” Other judges find it problematic that one of the film’s central “issues” is its assertion that Clinton is, in Bopp’s words, “a European socialist,” but still claims not to be overtly partisan.) [Mother Jones, 1/13/2008; United States District Court for the District Of Columbia, 1/15/2008; Richard Hasen, 1/15/2008; New Yorker, 5/21/2012]
Supreme Court Appeal - CU appeals the court’s decision directly to the Supreme Court. Bossie soon decides to replace Bopp with Olson, a far more prominent figure in conservative legal circles. Toobin will write: “Ted Olson had argued and won Bush v. Gore (see 9:54 p.m. December 12, 2000), and was rewarded by President Bush with an appointment as solicitor general. Olson had argued before the Supreme Court dozens of times, and he had a great deal of credibility with the justices. He knew how to win.” [Richard Hasen, 1/15/2008; New Yorker, 5/21/2012]
Previous Attempt - In September 2004, Bossie and CU attempted, without success, to release a similar “documentary” supporting President Bush and attacking Democratic presidential candidate John Kerry (D-MA) on television, just weeks before the presidential election. The FEC turned down the group’s request. The FEC did allow the film to be shown in theaters (see September 8, 2004 and September 27-30, 2004).
'Ten-Year Plan' - Bopp will later reveal that the lawsuit is part of what he will call a “10-year plan” to push the boundaries of campaign finance law, and that he urged Bossie and other CU officials to use the documentary as a “test case” for overturning the body of law (see January 25, 2010).

Entity Tags: William Jefferson (“Bill”) Clinton, Kathleen Willey, Megan Carpentier, Theodore (“Ted”) Olson, New York Times, Michael Moore, John McCain, Royce Lamberth, James Bopp, Jr, Dick Morris, Gary Aldrich, Barack Obama, Bush administration (43), Hillary Clinton, Citizens United, David Bossie, Federal Election Commission, Clinton administration

Timeline Tags: Civil Liberties, 2008 Elections

The Supreme Court dismisses an appeal by the political advocacy group Citizens United (CU) that argued the group’s First Amendment rights had been violated by the Federal Election Commission (FEC). The Court had agreed to hear CU’s case that it should be allowed to broadcast a partisan political documentary about Democratic presidential candidate Hillary Clinton, Hillary: The Movie, on cable television networks in the days before critical primary elections (see January 10-16, 2008). The Court did not rule on the merits of the case, but instead ruled that CU should have filed its case first with the federal appeals court in Washington. The ruling does not dismiss the case entirely, but makes it unlikely that the Court will rule on the campaign law issues surrounding the case (see March 27, 2002) before the November 2008 elections. Lawyer James Bopp, representing CU, says, “It is our intention to get the case expeditiously resolved on the merits in the district court, and then if we are unsuccessful there, to appeal” again to the Court. Bopp accuses Justice Department lawyers of trying to slow down the case to prevent it being resolved before the election. CU also wants to release a similar documentary about the other leading Democratic presidential contender, Barack Obama (D-IL—see October 28-30, 2008), in a similar fashion to its planned widespread release of the Clinton film. Justice Stephen Breyer, one of the Court’s more liberal members, says in the order dismissing the appeal that had the case been taken up, he would have affirmed the previous decision in favor of the FEC. None of the other justices made any public statement about the case. The case will be heard by the Washington, DC, federal appeals court. [Christian Science Monitor, 3/24/2008] The appeals court will find against CU, and the organization will reapply to the Court for a hearing, an application which will be granted (see March 15, 2009).

Entity Tags: James Bopp, Jr, Barack Obama, Citizens United, Federal Election Commission, Hillary Clinton, US Department of Justice, US Supreme Court, Stephen Breyer

Timeline Tags: Civil Liberties

The Supreme Court finds in the case of Davis v. Federal Election Commission that part of the McCain-Feingold campaign finance reform act (see March 27, 2002) is unconstitutional. Jack Davis (D-NY), a millionaire who has run repeatedly and unsuccessfully as a candidate of both parties to represent New York’s 26th District in the US House of Representatives, has complained in a lawsuit that the so-called “millionaire’s amendment” is unconstitutional. Davis wants to be able to pour his money into the race without his opponents being able to spend more money to counter his donations, as the law enables them to do. The lower courts found against Davis, and under McCain-Feingold the case was expedited directly to the Supreme Court. The Court finds 5-4 in favor of Davis, ruling that the contribution limits unduly restrict Davis’s freedom of speech. Justice Samuel Alito writes the majority opinion, joined by his fellow Court conservatives. Justice John Paul Stevens writes the dissent for the four Court liberals, though Stevens and the others do agree with some aspects of Alito’s majority opinion. Alito’s decision flows directly from an earlier Court precedent (see January 30, 1976). [Oyez (.org), 2011; Moneyocracy, 2/2012]

Entity Tags: John (“Jack”) Davis, Federal Election Commission, Samuel Alito, US Supreme Court, John Paul Stevens

Timeline Tags: Civil Liberties

The US Supreme Court hears the case of Citizens United v. Federal Election Commission, in which the Federal Election Commission (FEC) refused to let the conservative lobbying organization Citizens United (CU) air a film entitled Hillary: The Movie during the 2008 presidential primary season (see January 10-16, 2008). The FEC ruled that H:TM, as some have shortened the name, was not a film, but a 90-minute campaign ad with no other purpose than to smear and attack Senator Hillary Clinton (D-NY) as being unfit to hold office. A panel of appeals judges agreed with the FEC’s ruling, which found the film was “susceptible of no other interpretation than to inform the electorate that Senator Clinton is unfit for office, that the United States would be a dangerous place in a President Hillary Clinton world, and that viewers should vote against her.” As a campaign ad, the film’s airing on national network television came under campaign finance laws, particularly since the film was financed by corporate political donations. CU was allowed to air the film in theaters and sell it in DVD and other formats, but CU wanted to pay $1.2 million to have the movie aired on broadcast cable channels and video-on-demand (pay per view) services, and to advertise its broadcast. CU president David Bossie (see May 1998) hired former Bush Solicitor General Theodore Olson after the Supreme Court agreed to hear the case. Bossie denies that he chose Olson because of their shared loathing of the Clintons—they worked together to foment the “Arkansas Project,” a Clinton smear effort that resulted in Congress unsuccessfully impeaching President Clinton—but because Olson gave “us the best chance to win.” Bossie dedicated the Clinton film to Barbara Olson, Olson’s late wife, who died in the 9/11 attacks (see (9:20 a.m.) September 11, 2001). [Washington Post, 3/15/2009; Christian Science Monitor, 3/23/2009] “I just don’t see how the Federal Election Commission has the authority to use campaign-finance rules to regulate advertising that is not related to campaigns,” Bossie told reporters last year. [Christian Science Monitor, 2/1/2008]
Uphold or Cut Back McCain-Feingold? - Observers, unaware of the behind-the-scenes machinations, believe the case gives the Court the opportunity to either uphold or cut back the body of law stemming from the Bipartisan Campaign Reform Act (BCRA, or McCain-Feingold) campaign finance law (see March 27, 2002), which limits the ability of corporations and labor unions to spend unlimited amounts of money on political advertising before elections. CU is arguing that the BCRA is unconstitutional, having argued before a previous court that the the BCRA law was unconstitutional in the way it was being enforced by the FEC against its film. In its brief to the Court, CU denies the film is any sort of “electioneering,” claiming: “Citizens United’s documentary engages in precisely the political debate the First Amendment was written to protect… The government’s position is so far-reaching that it would logically extend to corporate or union use of a microphone, printing press, or the Internet to express opinions—or articulate facts—pertinent to a presidential candidate’s fitness for office.” The Justice Department, siding with the FEC, calls the film an “unmistakable” political appeal, stating, “Every element of the film, including the narration, the visual images and audio track, and the selection of clips, advances the clear message that Senator Clinton lacked both the integrity and the qualifications to be president of the United States.” The film is closer to a political “infomercial” than a legitimate documentary, the Justice Department argues. The film’s “unmistakable message is that Senator Clinton’s character, beliefs, qualifications, and personal history make her unsuited to the office of the President of the United States,” according to a Justice Department lawyer, Edwin Kneedler, who filed a brief on behalf of the FEC. The Justice Department wants the Court to uphold FEC disclosure requirements triggered by promotional ads, while Olson and CU want the Court to strike down the requirements. Olson says financial backers of films such as H:TM may be reluctant to back a film if their support becomes publicly known. Kneedler, however, writes that such disclosure is in the public interest. The Reporters Committee for Freedom of the Press (RCFP) is joining CU in its court fight, stating in a brief, “By criminalizing the distribution of a long-form documentary film as if it were nothing more than a very long advertisement, the district court has created uncertainty about where the line between traditional news commentary and felonious advocacy lies.” Scott Nelson of the Public Citizen Litigation Group, which supports the BCRA, disagrees with RCFP’s stance, saying, “The idea that [the law] threatens legitimate journalism and people who are out creating documentaries, I think, is a stretch.” [Washington Post, 3/15/2009; Christian Science Monitor, 3/23/2009] The RCFP has said that the movie “does not differ, in any relevant respect, from the critiques of presidential candidates produced throughout the entirety of American history.” And a lawyer with the RCFP, Gregg P. Leslie, asked, “Who is the FEC to decide what is news and what kind of format news is properly presented in?” [New York Times, 3/5/2009]
Filled with False Information - The movie was relentlessly panned by critics, who found much of its “information” either misrepresentative of Clinton or outright false. CU made several other films along with the Clinton documentary, which included attacks on filmmaker Michael Moore, the American Civil Liberties Union, illegal immigrants, and Clinton’s fellow presidential contender Barack Obama (D-IL—see October 28-30, 2008). [Washington Post, 3/15/2009; Christian Science Monitor, 3/23/2009]
Arguments Presented - Olson and his opponent, Deputy Solicitor General Malcolm Stewart, present arguments in the case to the assembled Court. Traditionally, lawyers with the Solicitor General (SG)‘s office are far more straightforward with the Court than is usual in advocacy-driven cases. New Yorker reporter Jeffrey Toobin later writes: “The solicitor general’s lawyers press their arguments in a way that hews strictly to existing precedent. They don’t hide unfavorable facts from the justices. They are straight shooters.” Stewart, who clerked for former Justice Harry Blackmun and is a veteran of the SG office since 1993, is well aware of the requirements of Court arguments. Justice Samuel Alito, a conservative justice with a penchant for asking tough questions that often hide their true intentions behind carefully neutral wording, is interested in seeing how far he can push Stewart’s argument. Does the BCRA apply only to television commercials, he asks, or might it regulate other means of communication during a federal campaign? “Do you think the Constitution required Congress to draw the line where it did, limiting this to broadcast and cable and so forth?” Could the law limit a corporation from “providing the same thing in a book? Would the Constitution permit the restriction of all those as well?” Stewart says that the BCRA indeed imposes such restrictions, stating, “Those could have been applied to additional media as well.” Could the government regulate the content of a book? Alito asks. “That’s pretty incredible. You think that if a book was published, a campaign biography that was the functional equivalent of express advocacy, that could be banned?” Stewart, who tardily realizes where Alito was going, attempts to recover. “I’m not saying it could be banned,” he responds. “I’m saying that Congress could prohibit the use of corporate treasury funds and could require a corporation to publish it using its—” Justice Anthony Kennedy, considered a “swing” justice in some areas but a reliable conservative vote in campaign-spending cases, interrupts Stewart. “Well, suppose it were an advocacy organization that had a book,” Kennedy says. “Your position is that, under the Constitution, the advertising for this book or the sale for the book itself could be prohibited within the 60- and 30-day periods?” Stewart gives what Toobin later calls “a reluctant, qualified yes.” At this point, Roberts speaks up. According to Toobin, Roberts intends to paint Stewart into something of a corner. “If it has one name, one use of the candidate’s name, it would be covered, correct?” Roberts asks. Stewart responds, “That’s correct.” Roberts then asks, “If it’s a 500-page book, and at the end it says, ‘And so vote for X,’ the government could ban that?” Stewart responds, “Well, if it says ‘vote for X,’ it would be express advocacy and it would be covered by the preexisting Federal Election Campaign Act (FECA—see February 7, 1972, 1974, May 11, 1976, and January 8, 1980) provisions.” Toobin later writes that with their “artful questioning, Alito, Kennedy, and Roberts ha[ve] turned a fairly obscure case about campaign-finance reform into a battle over government censorship.” Unwittingly, Stewart has argued that the government has the right to censor books because of a single line. Toobin later writes that Stewart is incorrect, that the government could not ban or censor books because of McCain-Feingold. The law applies to television advertisements, and stems from, as Toobin will write, “the pervasive influence of television advertising on electoral politics, the idea that commercials are somehow unavoidable in contemporary American life. The influence of books operates in a completely different way. Individuals have to make an affirmative choice to acquire and read a book. Congress would have no reason, and no justification, to ban a book under the First Amendment.” Legal scholars and pundits will later argue about Stewart’s answers to the three justices’ questions, but, as Toobin will later write, “the damage to the government’s case had been profound.” [New Yorker, 5/21/2012]
Behind the Scenes - Unbeknownst to the lawyers and the media, the Court initially renders a 5-4 verdict in favor of CU, and strikes down decades of campaign finance law, before withdrawing its verdict and agreeing to hear rearguments in the fall (see June 29, 2009). Toobin will write that the entire case is orchestrated behind the scenes, by Roberts and his fellow majority conservatives. Toobin will write of “a lengthy and bitter behind-the-scenes struggle among the justices that produced both secret unpublished opinions and a rare reargument of a case” that “reflects the aggressive conservative judicial activism of the Roberts Court.” Toobin will write that although the five conservatives are involved in broadening the scope of the case, and Kennedy actually writes the majority decision, “the result represented a triumph for Chief Justice Roberts. Even without writing the opinion, Roberts, more than anyone, shaped what the Court did. As American politics assumes its new form in the post-Citizens United era, the credit or the blame goes mostly to him.” The initial vote on the case is 5-4, with the five conservative justices—Alito, Kennedy, Roberts, Scalia, and Clarence Thomas—taking the majority.
Expansive Concurrence Becomes the Majority Opinion - At the outset, the case is decided on the basis of Olson’s narrow arguments, regarding the issue of a documentary being made available on demand by a nonprofit organization (CU). Roberts takes the majority opinion onto himself. The four liberals in the minority are confident Roberts’s opinion would be as narrow as Olson’s arguments. Roberts’s draft opinion is indeed that narrow. Kennedy writes a concurrence opining that the Court should go further and overturn McCain-Feingold, the 1990 Austin decision (see March 27, 1990), and end the ban on corporate donations to campaigns (see 1907). When the draft opinions circulates, the other three conservatives begin rallying towards Kennedy’s more expansive concurrence. Roberts then withdraws his draft and lets Kennedy write the majority opinion in line with his concurrence. Toobin later writes: “The new majority opinion transformed Citizens United into a vehicle for rewriting decades of constitutional law in a case where the lawyer had not even raised those issues. Roberts’s approach to Citizens United conflicted with the position he had taken earlier in the term.” During arguments in a different case, Roberts had “berated at length” a lawyer “for his temerity in raising an issue that had not been addressed in the petition. Now Roberts was doing nearly the same thing to upset decades of settled expectations.”
Dissent - The senior Justice in the minority, John Paul Stevens, initially assigns the main dissent to Justice David Souter. Souter, who is in the process of retiring from the Court, writes a stinging dissent that documents some of the behind-the-scenes machinations in the case, including an accusation that Roberts violated the Court’s procedures to get the outcome he wanted. Toobin will call Souter’s planned dissent “an extraordinary, bridge-burning farewell to the Court” that Roberts feels “could damage the Court’s credibility.” Roberts offers a compromise: Souter will withdraw his dissent if the Court schedules a reargument of the case in the fall of 2009 (see June 29, 2009). The second argument would feature different “Questions Presented,” and the stakes of the case would be far clearer. The four minority justices find themselves in something of a conundrum. They feel that to offer the Kennedy opinion as it stands would be to “sandbag” them and the entire case, while a reargument would at least present the issues that the opinion was written to reflect. And there is already a 5-4 majority in favor of Kennedy’s expansive opinion. The liberals, with little hope of actually winning the case, agree to the reargument. The June 29, 2009 announcement will inform the parties that the Court is considering overturning two key decisions regarding campaign finance restrictions, including a decision rendered by the Roberts court (see March 27, 1990 and December 10, 2003) and allow essentially unlimited corporate spending in federal elections. Court observers will understand that the Court is not in the habit of publicly asking whether a previous Court decision should be overruled unless a majority is already prepared to do just that. Toobin will call Roberts and his four colleagues “impatient” to make the decision, in part because an early decision would allow the ruling to impact the 2010 midterm elections. [New Yorker, 5/21/2012]
Created to Give Courts Shot at McCain-Feingold - Critics, as yet unaware of the behind-the-scenes maneuvering, will later say that CU created the movie in order for it to fall afoul of the McCain-Feingold campaign finance law, and give the conservatives on the Court the opportunity to reverse or narrow the law. Nick Nyhart of Public Campaign will say: “The movie was created with the idea of establishing a vehicle to chip away at the decision. It was part of a very clear strategy to undo McCain-Feingold.” Bossie himself will later confirm that contention, saying: “We have been trying to defend our First Amendment rights for many, many years. We brought the case hoping that this would happen… to defeat McCain-Feingold.” [Washington Post, 1/22/2010] CU’s original lawyer on the case, James Bopp, will later verify that the case was brought specifically to give the Court a chance to cut back or overturn campaign finance law (see January 25, 2010). The Court will indeed overturn McCain-Feingold in the CU decision (see January 21, 2010).

Entity Tags: Clarence Thomas, US Department of Justice, Theodore (“Ted”) Olson, Scott Nelson, US Supreme Court, Bipartisan Campaign Reform Act of 2002, Citizens United, Barbara Olson, American Civil Liberties Union, Anthony Kennedy, Barack Obama, Samuel Alito, Reporters Committee for Freedom of the Press, William Jefferson (“Bill”) Clinton, Michael Moore, Hillary Clinton, Gregg P. Leslie, Nick Nyhart, Edwin Kneedler, David Souter, Federal Election Commission, James Bopp, Jr, John Paul Stevens, David Bossie, John G. Roberts, Jr, Jeffrey Toobin, Malcolm Stewart

Timeline Tags: Civil Liberties

The Center for American Progress (CAP), a progressive think tank and lobbying organization, releases a report that says the “tea party” movement protesting the various policies of the Obama administration (see April 8, 2009) is not, as purported, entirely a grassroots movement of ordinary citizens, but an “astroturf” movement created, organized, and funded by powerful conservative and industry firms and organizations. (CAP notes that the anti-tax “tea parties,” with “tea” standing for “Taxed Enough Already,” fail to note that President Obama’s recent legislation actually has cut taxes for 95 percent of Americans.) Two of the most prominent organizations behind the “tea parties” are FreedomWorks and Americans for Progress (AFP). FreedomWorks (see April 14, 2009) is a corporate lobbying firm run by former House Majority Leader Dick Armey (R-TX), and organized the first “tea party,” held in Tampa, Florida, on February 27. It then began planning and organizing “tea parties” on a national scale; officials coordinated logistics, called conservative activists, and provided activists with sign ideas and slogans and talking points to use during protests. AFP has coordinated with FreedomWorks. AFP is a corporate lobbying firm run by Tim Phillips, a former lobbying partner of conservative activist Ralph Reed, and funded in part by Koch Industries, the largest private oil corporation in America (see May 29, 2009). Former House Speaker Newt Gingrich (R-GA) is also involved, through his lobbying form American Solutions for Winning the Future, which is supported by oil companies.
Support, Promotion from Fox News - On cable news channels, Fox News and Fox Business have run promotions for the “tea parties” in conjunction with enthusiastic reports promoting the affairs (see April 13-15, 2009, April 15, 2009, April 15, 2009, and April 6-13, 2009); in return, the organizers use the Fox broadcasts to promote the events. Fox hosts Glenn Beck, Neil Cavuto, and Sean Hannity all plan to broadcast live reports from the events. Fox also warns its viewers that the Obama administration may send “spies” to the events. (Fox justifies its depth of coverage by saying that it provided similar coverage for the 1995 Million Man March. However, Fox did not begin broadcasting until 1996—see October 7, 1996.)
Republican Support - Congressional Republicans have embraced the “tea parties” as ways to oppose the Obama administration. Many leading Republicans, such as Minority Leader John Boehner (R-OH), Paul Ryan (R-WI), and some 35 others, will speak at AFP-funded “tea parties.” Republican National Committee Chairman Michael Steele has moved the RNC to officially support the protests. And Senator David Vitter (R-LA) has introduced legislation formally honoring April 15 as “National Tea Party Day.” “It’s going to be more directed at Obama,” says reporter and commentator Ana Marie Cox. “This is very much, I think, part of the midterm strategy” to win elections in 2010.
Fringe Elements - According to CAP, many “fringe” elements of the conservative movement—including “gun rights militias, secessionists, radical anti-immigrant organizations, and neo-Nazi groups”—are involved in the “tea parties.” [Think Progress, 4/15/2009; Think Progress, 5/29/2009]

Entity Tags: Ralph Reed, Republican National Committee, Paul Ryan, Tim Phillips, Obama administration, Sean Hannity, Newt Gingrich, John Boehner, Michael Steele, Barack Obama, Neil Cavuto, Center for American Progress, Ana Marie Cox, Americans for Progress, Fox Business Channel, Fox News, Koch Industries, David Vitter, American Solutions for Winning the Future, FreedomWorks, Glenn Beck, Dick Armey

Timeline Tags: Domestic Propaganda, 2010 Elections

The US Supreme Court says it will schedule a hearing on the controversial “Citizens United” case, Citizens United v. Federal Election Commission (see March 15, 2009), for September 2009, in an unusual second presentation before the Court (see September 9, 2009). According to the justices, the lawyers for both Citizens United (CU) and the federal government should argue whether previous Court rulings upholding federal election law should be overturned based on First Amendment grounds. Both sides are asked to argue whether the Court should overrule the 1990 Austin decision (see March 27, 1990), which upheld restrictions on corporate spending on political campaigns, and/or the 2003 McConnell decision (see December 10, 2003), which upheld the bulk of the 2002 Bipartisan Campaign Reform Act (BCRA—see March 27, 2002). Law professor Nathaniel Persily says of the directive: “The Court is poised to reverse longstanding precedents concerning the rights of corporations to participate in politics. The only reason to ask for reargument on this is if they’re going to overturn Austin and McConnell.” The New York Times observes, “The Roberts court [referring to the Supreme Court under Chief Justice John Roberts] has struck down every campaign finance regulation to reach it, and it seems to have a majority prepared to do more.” Previous lower court rulings have found that CU’s attempt to air a film attacking presidential candidate Hillary Clinton (D-NY) was an attempt to engage in “electioneering,” and thus came under the restrictions of the McCain-Feingold campaign law (see March 27, 2002). The film was financed in part by donations from corporations and individuals whom CU has refused to identify. [United Press International, 6/29/2009; New York Times, 6/29/2009] CU previously attempted to have its case heard by the Court, but the Court sent the case back to a federal appeals court, which ruled in favor of the Federal Election Commission (FEC) and against CU (see March 24, 2008). Law professor Richard Hasen agrees with Persily and the Times that the decision to reargue the case a second time indicates that the Court’s conservative majority is prepared to overturn both Austin and McConnell, and allow essentially unlimited corporate spending in federal elections. Hasen writes that if the Court does indeed rule in favor of unlimited corporate spending, it will be in response to the fundraising advantage currently enjoyed by Democratic presidential candidate Barack Obama (D-IL) over his Republican counterpart, John McCain (R-AZ). [Slate, 6/29/2009] The decision will indeed overturn both Austin and McConnell, and gut most of the BCRA (see January 21, 2010).

Entity Tags: Hillary Clinton, Bipartisan Campaign Reform Act of 2002, Barack Obama, Federal Election Commission, US Supreme Court, New York Times, John G. Roberts, Jr, Richard L. Hasen, Nathaniel Persily, John McCain, Citizens United

Timeline Tags: Civil Liberties

The second round of arguments in the Citizens United v. Federal Election Commission case (see January 10-16, 2008, March 24, 2008, March 15, 2009, and June 29, 2009) is heard by the US Supreme Court. The first round of arguments, which unexpectedly focused on an unplanned examination of government censorship, ended in a 5-4 split, with the majority of conservative justices readying a decision to essentially gut the entire body of federal campaign finance law in the name of the First Amendment (see March 27, 1990, March 27, 2002, and December 10, 2003), but an angry dissent by Justice David Souter that accused Chief Justice John Roberts of failing to follow the procedures of the Court in rendering the opinion prompted Roberts to temporarily withdraw the opinion and offer a rare second argument (see May 14, 2012). Newly appointed Solicitor General Elena Kagan argues her first case before the Court. Citizens United, the plaintiff, is represented by former Bush administration Solicitor General Theodore Olson. Olson, a veteran of Court arguments, quickly discerns from the new round of “Questions Presented” that the Court is prepared to not only find in the plaintiff’s favor, but to use the case to render a broad verdict against campaign finance law as a whole. Olson argues cautiously, not wanting to extend the case farther than the Court may desire. The four minority liberal justices, knowing the case is lost, try their best in their questioning to raise awareness in the public once news reports of the arguments are made public. One of those justices, Ruth Bader Ginsburg, asks: “Mr. Olson, are you taking the position that there is no difference” between the First Amendment rights of a corporation and those of an individual? “A corporation, after all, is not endowed by its creator with inalienable rights. So is there any distinction that Congress could draw between corporations and natural human beings for purposes of campaign finance?” Olson replies, “What the Court has said in the First Amendment context… over and over again is that corporations are persons entitled to protection under the First Amendment” (see January 30, 1976, April 26, 1978, June 25, 2007, and June 26, 2008). Ginsburg follows up by asking, “Would that include today’s mega-corporations, where many of the investors may be foreign individuals or entities?” Olson replies, “The Court in the past has made no distinction based upon the nature of the entity that might own a share of a corporation.” Kagan then takes her turn, and begins: “Mr. Chief Justice, and may it please the Court, I have three very quick points to make about the government position. The first is that this issue has a long history. For over a hundred years, Congress has made a judgment that corporations must be subject to special rules when they participate in elections, and this Court has never questioned that judgment.” She begins to make her second point before Justice Antonin Scalia, one of the conservative majority, interrupts her. In 2012, author and reporter Jeffrey Toobin will write that Kagan almost certainly knows hers is a legal “suicide mission,” and can only hope that her arguments may sway the Court to narrow its decision and leave some of the existing body of campaign finance law intact. She tells Roberts later in the questioning period, “Mr. Chief Justice, as to whether the government has a preference as to the way in which it loses, if it has to lose, the answer is yes.” Justice John Paul Stevens, the most senior of the liberal minority, attempts to assist Kagan in making her argument, suggesting that the Court should content itself with a narrow ruling, perhaps creating an exception in the McCain-Feingold law (see March 27, 2002) for the plaintiff’s documentary (see January 10-16, 2008) or for “ads that are financed exclusively by individuals even though they are sponsored by a corporation.” Kagan agrees with Stevens’s proposal. Stevens then says: “Nobody has explained why that wouldn’t be a proper solution, not nearly as drastic. Why is that not the wisest narrow solution of the problem before us?” Kagan, with help from Ginsburg, undoes some of the damage done by Deputy Solicitor General Malcolm Stewart during the first argument, where he inadvertently gave the conservative justices the “censorship” argument by which they could justify a broader verdict. Ginsburg asks: “May I ask you one question that was highlighted in the prior argument, and that was if Congress could say no TV and radio ads, could it also say no newspaper ads, no campaign biographies? Last time, the answer was yes, Congress could, but it didn’t. Is that still the government’s answer?” Kagan replies: “The government’s answer has changed, Justice Ginsburg. We took the Court’s own reaction to some of those other hypotheticals very seriously. We went back, we considered the matter carefully.” Unlike Stewart, Kagan specifically says that the government cannot ban books. But the censorship argument remains. After the arguments, the justices render the same verdict: a 5-4 split favoring Citizens United. Roberts, Scalia, and Justices Samuel Alito, Anthony Kennedy, and Clarence Thomas vote in the majority, while Ginsburg, Stevens, and Justices Stephen Breyer and Sonia Sotomayor vote in the minority. The second round of questioning, with its much broader scope, gives Roberts and his conservative colleagues the justification they need to render a broad verdict that would gut existing campaign finance law (see January 21, 2010). [New Yorker, 5/21/2012]

Entity Tags: Elena Kagan, US Supreme Court, Citizens United, Antonin Scalia, Anthony Kennedy, Theodore (“Ted”) Olson, David Souter, Stephen Breyer, Samuel Alito, John G. Roberts, Jr, Jeffrey Toobin, Federal Election Commission, Sonia Sotomayor, John Paul Stevens, Ruth Bader Ginsburg, Malcolm Stewart, Clarence Thomas

Timeline Tags: Civil Liberties

Supreme Court Justice Clarence Thomas and his wife, political activist Virginia Thomas.Supreme Court Justice Clarence Thomas and his wife, political activist Virginia Thomas. [Source: Associated Press]In November 2009, Virginia “Ginni” Thomas, a former Republican campaign operative and the wife of Supreme Court Justice Clarence Thomas, establishes a new “tea party” organization she calls Liberty Central. (Some media sources claim that Liberty Central begins operations in January 2010.) She describes the group as intended to bridge the gap between the conservative Republican establishment and the anti-government tea party movement. “I am an ordinary citizen from Omaha, Nebraska, who just may have the chance to preserve liberty along with you and other people like you,” she says at a Conservative Political Action Conference (CPAC) discussion with tea party leaders in Washington. “I adore all the new citizen patriots who are rising up across this country. I have felt called to the front lines with you, with my fellow citizens, to preserve what made America great.” She also says she started the group because of her reaction to what she calls President Obama’s “hard-left agenda.” The group also intends to work to elect Republicans and defeat Democrats, and provide political strategies and “talking points” for conservative candidates. [Los Angeles Times, 3/14/2010; Commission, 7/1/2010; Politico, 7/6/2010; Politico, 2/4/2011] In May 2010, the organization officially declares itself open for business, launching a $27,000 Web site, and touting partnerships with a number of prominent conservative groups and the backing of prominent conservatives such as former Defense Secretary Donald Rumsfeld and Federalist Society executive Leonard Leo, whom Justice Thomas has called “my good friend.” [Politico, 7/6/2010]
Questions of Conflict of Interest, Ethics - Almost immediately, legal ethicists assert that Virginia Thomas’s role as the head of a partisan, openly political advocacy organization could taint her husband’s impartiality, especially in light of the Citizens United Court decision, in which her husband sided with the 5-4 majority (see January 21, 2010), that allows her group to accept donations and spend them without publicly disclosing information about them. The group could have benefited from the Court’s decision, and Justice Thomas’s decision could be seen as being influenced by his wife’s decision to start the group. Law school professor Lucas A. “Scot” Powe, a Court historian, says, “I think the American public expects the justices to be out of politics.” The expectations for spouses are not so clear, he adds, saying, “I really don’t know because we’ve never seen it.” Legal ethicist Stephen Gillers, another law professor, says, “We expect the justice to make decisions uninfluenced by the political or legal preferences of his or her spouse.” Moreover, the press learns that while the Court was deliberating the Citizens United case, Liberty Central received an anonymous $550,000 donation. Government watchdog organization Common Cause wrote a letter to the Justice Department asking if Justice Thomas should recuse himself from the case, and wrote that “the complete lack of transparency of Liberty Central’s finances makes it difficult to assess the full scope of the ethics issues raised by Ms. Thomas’s role in founding and leading the group.” (The media later learns that $500,000 of the anonymous $550,000 donation for the organization comes from Dallas real estate investor Harlan Crow, who also hosts a fundraising event for the organization at his home. Crow once gave Justice Thomas a $19,000 “Frederick Douglass Bible” as a gift, and donated $150,000 to build a new wing named for Justice Thomas on a Savannah, Georgia, library that he visited frequently in his youth.) Common Cause also notes that Justice Thomas had failed to report on his financial disclosure filings his wife’s income over the last 13 years, prompting him to file amendments to the filings that indicated the sources, but not the amounts, of his wife’s income. Justice Thomas refuses to recuse himself from the case.
Period of Success - Liberty Central flourishes for a brief time, with Virginia Thomas assembling a veteran staff and forging relationships with conservative donors, with most of whom she and her husband had long, close relationships. Carl Graham of the Montana Policy Institute, one of the over 30 state and national tea party groups that are listed as partners in Liberty Central’s affiliate network, says, “Her association with Justice Thomas clearly provides a level of credibility that others wouldn’t be able to have, just because of the beliefs that he has and the stands that he has on the different positions that align with our own.” Liberty Central’s connection with Justice Thomas, Graham says, “gets you to open the email, if nothing else, as opposed to some other one that you may not even open.” Liberty Central hires the services of CRC Public Relations, a prominent Washington communications firm that has garnered some $15 million in fees from a number of clients, including top Republican Party committees and the presidential campaigns or political committees of George W. Bush, Mitt Romney, and John McCain, among others. Matt Kibbe of FreedomWorks, a tea party lobbying organization also partnered with Liberty Central (see April 14, 2009 and April 15, 2009), says, “Ginni was able to raise the seed capital to have a real launch” because of her connections in small-government conservative circles. Kibbe says most people are unaware that she is the wife of a Supreme Court justice. Tea Party Patriots leader Jenny Beth Martin calls Thomas a “mentor” for many tea party organizations, and says she helps these organizations “to navigate some of the waters in DC.… She’s been kind of a mentor, and when we had questions about things that we were doing, we bounced a few of the ideas off of her and also off of a few other people in DC just to make sure that what we were doing made sense.” [Los Angeles Times, 3/14/2010; Politico, 7/6/2010; Politico, 2/4/2011]
Media Attention - In a June 2010 interview with Fox News host Sean Hannity, Thomas says she is sure “liberals” will “persecute” her just as she says they did when her husband was undergoing confirmation for the Supreme Court. “They’re after me now sometimes,” she says. “And so, we’re not going to be dissuaded. We are in the fight for our country’s life.” She and Hannity engage in a lively conversation about the “tyranny” of the Obama administration. She also promises to “watch for conflicts” between herself and her husband. In October 2010, the media reports that Virginia Thomas leaves a voice mail for former college professor Anita Hill, who accused her husband of sexual harassment during his confirmation hearings for the Court (see October 8, 1991, October 8-12, 1991, and October 11-12, 1991), demanding that Hill issue an apology to her husband. The voice mail says: “Good morning, Anita Hill, it’s Ginni Thomas. I just want to reach across the airwaves and the years and ask you to consider something. I would love you to consider an apology sometimes and some full explanation of why you did what you did with my husband. So give it some thought and certainly pray about this and come to understand why you did what you did. Okay, have a good day.” The attention from the voice mail prompts more negative media attention, and some donors begin distancing themselves from the organization. (Virginia Thomas later admits that her voice mail message for Hill was “probably a mistake,” though she will call the media’s response to it “laughable.” She will call the message “an olive branch” she extends to Hill. For her part, Hill says: “I don’t apologize. I have no intention of apologizing and I stand by my testimony in 1991.”) [Los Angeles Times, 3/14/2010; Fox News, 6/8/2010; Politico, 7/6/2010; Politico, 10/19/2010; Washington Post, 11/15/2010]
Thomas Steps Down, Group Merges with Another Organization - In November 2010, Virginia Thomas steps down from her leadership post at Liberty Central. The group then merges with another, similar group called the Patrick Henry Center for Individual Liberty, an organization founded by ex-CIA agent Gary Aldrich, who wrote a largely discredited book “exposing” the “secrets” of the Clinton administration. Sources later tell reporters that Virginia Thomas sells off Liberty Central because it cannot raise the funds needed to support its large staff and high overhead. According to CRC spokeswoman Caitlin Carroll, Thomas will “take a back seat so that Liberty Central can continue with its mission without any of the distractions. After discussing it with the board, Mrs. Thomas determined that it was best for the organization.” However, Sarah E. Field, general counsel of Liberty Central, disagrees, saying: “There are many opportunities being presented to Liberty Central, but there is no agreement at this time.… The sources of this story appear to be people without full understanding of the facts.” Keith Appell of CRC tells a reporter that the Washington Post’s Amy Gardner “breached confidentiality” by reporting her conversation with Carroll. Gardner responds, “Everything I attributed to Caitlin Carroll comes from an on-the-record conversation we had by telephone this morning.” Within hours, Thomas files incorporation papers for a new political lobbying and consulting firm, Liberty Consulting (see February 4, 2011). [Politico, 7/6/2010; Politico, 11/15/2010; Washington Post, 11/15/2010; Politico, 2/4/2011]

Entity Tags: Lucas A. (“Scot”) Powe, Liberty Central, US Department of Justice, Matt Kibbe, Leonard Leo, Obama administration, US Supreme Court, Sean Hannity, Virginia (“Ginni”) Thomas, Keith Appell, Stephen Gillers, Patrick Henry Center for Individual Liberty, Jenny Beth Martin, Sarah E. Field, Gary Aldrich, Barack Obama, Anita Hill, Amy Gardner, CRC Public Relations, Caitlin Carroll, Harlan Crow, Clarence Thomas, FreedomWorks, Carl Graham, Donald Rumsfeld, Common Cause, Conservative Political Action Conference

Timeline Tags: Domestic Propaganda

Reporter Lee Fang of the liberal Center for American Progress writes an op-ed for the Boston Globe comparing the current political attacks against Democratic efforts to reform health care being coordinated by the Koch brothers (see 1977-Present, 1979-1980, 1981-2010, 1984 and After, May 6, 2006, April 15, 2009, May 29, 2009, and November 2009) with the efforts of their father, Fred Koch (see 1940 and After), to label former President John F. Kennedy a traitor and a Communist tool. David Koch recently helped coordinate, from behind the scenes, a protest that compared health care reform to the Holocaust, and other protests that have turned violent. More systematically, he and his reclusive brother Charles have funded such conservative organizations as Americans for Prosperity (AFP—see Late 2004) and other front groups, none of which bear the Koch name. Fang writes: “Americans for Prosperity’s tactics are not new. Just as Koch inherited his oil business from his father, Americans for Prosperity borrows from the ultra-right group also founded in part by his dad, the John Birch Society” (see 1945 and After, March 10, 1961, 1963, August 4, 2008, and April 26, 2010). Fred Koch helped conceive the far-right, anti-Communist John Birch Society (JBS), which, Fang writes, “cloaked its pro-business, anti-civil rights agenda in the rhetoric of the Cold War.” The JBS labeled Kennedy a Communist-inspired traitor and advocated his impeachment (see November 1963), stood against taxation as another aspect of “creeping Communism” inside the federal government, and claimed that the civil rights movement was being directed by the Soviet Union (see April 13, 2009 and December 11, 2009). The JBS helped promote the 1964 presidential candidacy of Senator Barry Goldwater (R-AZ) and helped Republicans win key Congressional seats in 1966. AFP and the JBS are alike, Fang notes, in that they rarely acknowledge their funding from wealthy corporate magnates. Both portray themselves as grassroots organizations that are dedicated to promoting freedom. For a time, the JBS succeeded in aligning the interests of the very rich with the idea of anti-Communist patriotism. Similarly, AFP promotes the interests of the extremely wealthy, including the Koch brothers, as synonymous with patriotic opposition to health care reform, financial regulation, net neutrality, and the estate tax. All are labeled as “socialist,” a favorite JBS epithet. Fang concludes that “[w]ith his millions,” David Koch will have “contributed greatly to the obstruction of universal health care, the denial of climate change, and the derailment of much of President Obama’s domestic agenda. His dad would be pleased.” [Boston Globe, 12/6/2009]

Entity Tags: Barry Goldwater, Americans for Prosperity, Barack Obama, Charles Koch, David Koch, John Birch Society, John F. Kennedy, Lee Fang, Fred Koch

Timeline Tags: Domestic Propaganda

Three of the Supreme Court justices in the majority decision: Antonin Scalia, John Roberts, and Anthony Kennedy.Three of the Supreme Court justices in the majority decision: Antonin Scalia, John Roberts, and Anthony Kennedy. [Source: Associated Press / Politico]The Supreme Court rules 5-4 that corporate spending in political elections may not be banned by the federal government. The case is Citizens United v. Federal Election Commission, No. 08-205. The Court is divided among ideological lines, with the five conservatives voting against the four moderates and liberals on the bench. The decision overrules two precedents about the First Amendment rights of corporations, and rules that corporate financial support for a party or candidate qualifies as “freedom of speech” (see March 11, 1957, January 30, 1976, May 11, 1976, April 26, 1978, January 8, 1980, November 28, 1984, December 15, 1986, June 26, 1996, June 25, 2007, and June 26, 2008). The majority rules that the government may not regulate “political speech,” while the dissenters hold that allowing corporate money to, in the New York Times’s words, “flood the political marketplace,” would corrupt the democratic process. The ramifications of the decision will be vast, say election specialists. [Legal Information Institute, 2010; CITIZENS UNITED v. FEDERAL ELECTION COMMISSION, 1/21/2010 pdf file; New York Times, 1/21/2010] In essence, the ruling overturns much of the Bipartisan Campaign Reform Act of 2002, commonly known as the McCain-Feingold law (BCRA—see March 27, 2002). The ruling leaves the 1907 ban on direct corporate contributions to federal candidates and national party committees intact (see 1907). The ban on corporate and union donors coordinating their efforts directly with political parties or candidates’ campaigns remains in place; they must maintain “independence.” Any corporation spending more than $10,000 a year on electioneering efforts must publicly disclose the names of individual contributors. And the ruling retains some disclosure and disclaimer requirements, particularly for ads airing within 30 days of a primary or 60 days of a general election. The Los Angeles Times writes: “The decision is probably the most sweeping and consequential handed down under Chief Justice John G. Roberts Jr. And the outcome may well have an immediate impact on this year’s mid-term elections to Congress.” [Los Angeles Times, 1/21/2010; OMB Watch, 1/27/2010; Christian Science Monitor, 2/2/2010; National Public Radio, 2012]
Unregulated Money Impacts Midterm Elections - The decision’s effects will be felt first on a national level in the 2010 midterm elections, when unregulated corporate spending will funnel millions of dollars from corporate donors into Congressional and other races. President Obama calls the decision “a major victory for big oil, Wall Street banks, health insurance companies, and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans.” Evan Tracey of the Campaign Media Analysis Group, which tracks political advertising, says the Court “took what had been a revolving door and took the door away altogether. There was something there that slowed the money down. Now it’s gone.” [Legal Information Institute, 2010; CITIZENS UNITED v. FEDERAL ELECTION COMMISSION, 1/21/2010 pdf file; New York Times, 1/21/2010; Los Angeles Times, 1/21/2010; Think Progress, 1/21/2010]
Broadening in Scope - According to reporter and author Jeffrey Toobin, CU lawyer Theodore Olson had originally wanted to present the case as narrowly as possible, to ensure a relatively painless victory that would not ask the Court to drastically revise campaign finance law. But according to Toobin, the conservative justices, and particularly Chief Justice Roberts, want to use the case as a means of overturning much if not all of McCain-Feingold (see May 14, 2012). In the original argument of the case in March 2009 (see March 15, 2009), Deputy Solicitor General Malcolm Stewart unwittingly changed the scope of the case in favor of a broader interpretation, and gave Roberts and the other conservative justices the opportunity they may have been seeking. [New Yorker, 5/21/2012]
Majority Opinion Grants Corporations Rights of Citizens - The majority opinion, written by Justice Anthony Kennedy, reads in part: “If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.… The First Amendment does not permit Congress to make these categorical distinctions based on the corporate identity of the speaker and the content of the political speech.” In essence, Kennedy’s ruling finds, corporations are citizens. The ruling overturns two precedents: 1990’s Austin v. Michigan Chamber of Commerce, which upheld restrictions on corporate spending to support or oppose political candidates (see March 27, 1990) in its entirety, and large portions of 2003’s McConnell v. Federal Election Commission (see December 10, 2003), which upheld a portion of the BCRA that restricted campaign spending by corporations and unions. Before today’s ruling, the BCRA banned the broadcast, cable, or satellite transmission of “electioneering communications” paid for by corporations or labor unions from their general funds in the 30 days before a presidential primary and in the 60 days before the general elections. The law was restricted in 2007 by a Court decision to apply only to communications “susceptible to no reasonable interpretation other than as an appeal to vote for or against a specific candidate” (see June 25, 2007).
Encroachment on Protected Free Speech - Eight of the nine justices agree that Congress can require corporations to disclose their spending and to run disclaimers with their advertisements; Justice Clarence Thomas is the only dissenter on this point. Kennedy writes, “Disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way.” Kennedy’s opinion states that if the restrictions remain in place, Congress could construe them to suppress political speech in newspapers, on television news programs, in books, and on the Internet. Kennedy writes: “When government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves.”
Fiery Dissent - Justice John Paul Stevens, the oldest member of the court, submits a fiery 90-page dissent that is joined by Justices Stephen Breyer, Ruth Bader Ginsburg, and Sonia Sotomayor. Kennedy is joined by Roberts and fellow Associate Justices Samuel Alito, Antonin Scalia, and Thomas, though Roberts and Alito submit a concurring opinion instead of signing on with Kennedy, Scalia, and Thomas. “The difference between selling a vote and selling access is a matter of degree, not kind,” Stevens writes in his dissent. “And selling access is not qualitatively different from giving special preference to those who spent money on one’s behalf.” Stevens writes that the Court has long recognized the First Amendment rights of corporations, but the restrictions struck down by the decision are moderate and fair. “At bottom, the Court’s opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.” Speaking from the bench, Stevens calls the ruling “a radical change in the law… that dramatically enhances the role of corporations and unions—and the narrow interests they represent—in determining who will hold public office.… Corporations are not human beings. They can’t vote and can’t run for office,” and should be restricted under election law. “Essentially, five justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law.”
Case Originated with 2008 Political Documentary - The case originated in a 2008 documentary by the right-wing advocacy group Citizens United (CU), called Hillary: The Movie (see January 10-16, 2008). The film, a caustic attack on then-Democratic presidential candidate Hillary Clinton (D-NY) and Democrats in general, was released for public viewing during the 2008 Democratic presidential primaries. When the Federal Election Commission (FEC) won a lawsuit against CU, based on the FEC’s contention that broadcasting the film violated McCain-Feingold, the group abandoned plans to release the film on a cable video-on-demand service and to broadcast television advertisements for it. CU appealed the ruling to the Supreme Court, and most observers believed the Court would decide the case on narrow grounds, not use the case to rewrite election law and First Amendment coverage. [Legal Information Institute, 2010; CITIZENS UNITED v. FEDERAL ELECTION COMMISSION, 1/21/2010 pdf file; New York Times, 1/21/2010; Los Angeles Times, 1/21/2010; Think Progress, 1/21/2010; Associated Press, 1/21/2010; Christian Science Monitor, 2/2/2010]
Case Brought in Order to Attack Campaign Finance Law - Critics have said that CU created the movie in order for it to fall afoul of the McCain-Feingold campaign finance law, and give the conservatives on the Court the opportunity to reverse or narrow the law. Nick Nyhart of Public Campaign, an opponent of the decision, says: “The movie was created with the idea of establishing a vehicle to chip away at the decision. It was part of a very clear strategy to undo McCain-Feingold.” CU head David Bossie confirms this contention, saying after the decision: “We have been trying to defend our First Amendment rights for many, many years. We brought the case hoping that this would happen… to defeat McCain-Feingold.” [Washington Post, 1/22/2010]

Entity Tags: US Supreme Court, Theodore (“Ted”) Olson, Sonia Sotomayor, Clarence Thomas, Anthony Kennedy, Antonin Scalia, Citizens United, Bipartisan Campaign Reform Act of 2002, Barack Obama, Samuel Alito, Ruth Bader Ginsburg, Stephen Breyer, New York Times, Nick Nyhart, Evan Tracey, David Bossie, Hillary Clinton, Jeffrey Toobin, Federal Election Commission, John Paul Stevens, Malcolm Stewart, John G. Roberts, Jr, Los Angeles Times

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

In his weekly radio and Internet address, President Obama denounces the recent Citizens United Supreme Court ruling that lets corporations and labor unions spend unlimited amounts on political campaign activities (see January 21, 2010). “This ruling strikes at our democracy itself,” he says. “I can’t think of anything more devastating to the public interest. The last thing we need to do is hand more influence to the lobbyists in Washington, or more power to the special interests to tip the outcome of elections.… This ruling opens the floodgates for an unlimited amount of special interest money into our democracy. It gives the special interest lobbyists new leverage to spend millions on advertising to persuade elected officials to vote their way—or to punish those who don’t.… The last thing we need to do is hand more influence to the lobbyists in Washington or more power to the special interests to tip the outcome of elections.” The decision, Obama says, will make it harder to enact financial reform, close tax loopholes, promote energy independence, and protect patients from health insurance abuses. “We don’t need to give any more voice to the powerful interests that already drown out the voices of everyday Americans,” Obama says. “And we don’t intend to.” He says he is asking Congress to work with the White House to “fight for the American people” and develop a “forceful bipartisan response” to the decision. “It will be a priority for us until we repair the damage that has been done.” Norm Eisen, Obama’s special counsel for ethics and government reform, has already met with Democratic Congressional leaders Senator Charles Schumer (D-NY) and Representative Chris Van Hollen (D-MD) to begin talks on how Congress might respond. [New York Times, 1/24/2010; Associated Press, 1/25/2010]

Entity Tags: Charles Schumer, Barack Obama, Norm Eisen, US Supreme Court, Chris Van Hollen

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

During a conference at Georgetown University Law Center, former Supreme Court Justice Sandra Day O’Connor is “obliquely” critical of the recent Citizens United decision allowing corporations and labor unions to fund political activities without spending limits (see January 21, 2010), in the words of New York Times reporter Adam Liptak. Liptak describes O’Connor as “not sound[ing] happy” about the decision, but notes that instead of giving a pointed critique of the ruling, she advises her audience to see the McConnell decision she co-wrote banning corporate spending in political campaigns (see December 10, 2003)). Of the current Court’s ruling, she says, “Gosh, I step away for a couple of years and there’s no telling what’s going to happen.” Since her retirement from the Court, she has become a vocal advocate for doing away with judicial elections in the states; she says that the Citizens United ruling will likely create “an increasing problem for maintaining an independent judiciary.… In invalidating some of the existing checks on campaign spending, the majority in Citizens United has signaled that the problem of campaign contributions in judicial elections might get considerably worse and quite soon.” She says that with the combination of unlimited corporate and union spending, and the practice of electing state judges, “We can anticipate that labor unions and trial lawyers, for instance, might have the financial means to win one particular state judicial election. And maybe tobacco firms and energy companies have enough to win the next one. And if both sides unleash their campaign spending monies without restrictions, then I think mutually-assured destruction is the most likely outcome.” [New York Times, 1/26/2012] Days after the Times reports on O’Connor’s remarks, Times editorial writer Dorothy Samuels will agree, writing that “[t]he Citizens United ruling promises to make that problem worse, possibly much worse.” The title of her editorial is “Hanging a ‘For Sale’ Sign Over the Judiciary.” [New York Times, 1/29/2012]

Entity Tags: Dorothy Samuels, Adam Liptak, Sandra Day O’Connor, US Supreme Court

Timeline Tags: Civil Liberties

Supreme Court Justice Samuel Alito listens to President Obama’s State of the Union address.Supreme Court Justice Samuel Alito listens to President Obama’s State of the Union address. [Source: Renovo Media]President Obama sharply criticizes the recent Citizens United decision by the Supreme Court, giving corporations and unions the right to give unlimited and anonymous donations to organizations supporting or opposing political candidates (see January 21, 2010), during the annual State of the Union address. Obama gives the address to a joint session of Congress, with three Supreme Court members in attendance. “With all due deference to the separation of powers,” Obama says, “last week, the Supreme Court reversed a century of law that I believe will open the floodgates for special interests—including foreign corporations—to spend without limit in our elections. I don’t think American elections should be bankrolled by America’s most powerful interests or, worse, by foreign entities. They should be decided by the American people. And I urge Democrats and Republicans to pass a bill that helps correct some of these problems.” Democrats in the chamber applaud Obama’s remarks, while Republicans do not. In his response, Justice Samuel Alito, one of the five conservatives on the Court who joined in the majority decision, shakes his head and mouths, “Not true, not true” (some lip readers will later claim that Alito says, “That’s not true”). It is highly unusual for a president to so directly criticize a Supreme Court ruling, especially in a State of the Union address. The next day, Vice President Joe Biden defends Obama’s remarks in an appearance on Good Morning America. Biden says: “The president didn’t question the integrity of the court. He questioned the judgment of it. I think [the ruling] was dead wrong and we have to correct it.” Supreme Court expert Lucas A. Powe says, “I can’t ever recall a president taking a swipe at the Supreme Court like that.” Experts say that the closest precedent they can find is President Franklin Roosevelt’s 1937 criticism of the Court in his address to Congress. Yale law professor Jack Balkin says, “The important thing to me is that the president thinks the Citizens United decision is important enough that he would include it.” Reactions are split along ideological lines. Senator Orrin Hatch (R-UT) calls Obama “rude” to criticize the Court’s verdict. Senator Russ Feingold (D-WI) calls Alito’s reaction “inappropriate.” Legal expert Barbara A. Perry of Sweet Briar College says both Obama and Alito were in the wrong, calling the interaction “an unfortunate display for both branches.” White House deputy press secretary Bill Burton says: “One of the great things about our democracy is that powerful members of the government at high levels can disagree in public and in private. This is one of those cases.” Alito refuses to comment. Alito and Obama have a contentious history. As a senator, Obama was one of the most outspoken voices against Alito’s confirmation as a Supreme Court justice (see October 31, 2005 - February 1, 2006), saying then of Alito, “[W]hen you look at his record—when it comes to his understanding of the Constitution, I have found that in almost every case, he consistently sides on behalf of the powerful against the powerless; on behalf of a strong government or corporation against upholding American’s individual rights.” For his part, Alito snubbed the formal visit paid by Obama and Biden to the Court. [New York Daily News, 1/28/2010; Washington Post, 1/28/2010] Months later, Obama’s warning will be proven to be correct, as a media investigation will show the US Chamber of Commerce using foreign monies to fund attack ads and other political activities under the cloak of the Citizens United decision (see October 2010).

Entity Tags: Jack Balkin, Barbara A. Perry, Barack Obama, Franklin Delano Roosevelt, US Congress, US Supreme Court, Samuel Alito, Orrin Hatch, Lucas A. (“Scot”) Powe, Joseph Biden, US Chamber of Commerce, Russell D. Feingold, Bill Burton

Timeline Tags: Civil Liberties

In an unsigned editorial, the Wall Street Journal lambasts President Obama for his recent comments that warned the Citizens United decision (see January 21, 2010) could open the door for foreign corporations to contribute money for use in American elections (see January 27-29, 2010). “[C]ould a graduate of Harvard Law School at least get his facts right?” the editorial asks. The Journal accuses Obama of reciting a number of falsehoods in his comments on the decision, and accuses him of using the term “foreign” in “a conscious attempt to inflame public and Congressional opinion against the Court. Coming from a president who fancies himself a citizen of the world, and who has gone so far as [to] foreswear American exceptionalism, this leap into talk-show nativism is certainly illuminating. What will they think of that one in the cafes of Berlin?” [Wall Street Journal, 1/29/2010] The day before the editorial, the liberal media watchdog organization Media Matters noted that Obama’s concerns were echoed by the four dissenting Supreme Court Justices in the decision, as well as by a number of legal experts (see January 27-28, 2010).

Entity Tags: Wall Street Journal, Media Matters, Barack Obama

Timeline Tags: Civil Liberties

In a highly unusual action for a sitting Supreme Court Justice, Justice Clarence Thomas strongly defends the Court’s recent Citizens United ruling that allows unlimited corporate and union funding of campaign activities (see January 21, 2010). He makes his remarks at the Stetson University College of Law in Gulfport, Florida. Thomas was part of the 5-4 majority that ruled on the case. He also says that he refused to attend the recent State of the Union address by President Obama, where fellow Justice Samuel Alito apparently contradicted Obama’s critical characterization of the ruling (see January 27-29, 2010), because under Obama, these addresses have become “partisan,” stating: “I don’t go because it has become so partisan and it’s very uncomfortable for a judge to sit there… there’s a lot that you don’t hear on TV—the catcalls, the whooping and hollering and under-the-breath comments (see September 9, 2009). One of the consequences is now the Court becomes part of the conversation, if you want to call it that, in the speeches. It’s just an example of why I don’t go.” Thomas mocks media criticisms of the ruling, saying: “I found it fascinating that the people who were editorializing against it were The New York Times Company and The Washington Post Company. These are corporations.” It is a mistake, Thomas says, to consider regulation of corporations’ campaign activities as “some sort of beatific action,” and he cites the 1907 Tillman Act, the first federal legislation banning corporate contributions to federal candidates (see 1907), as being sparked by racism, saying: “Go back and read why [Senator Benjamin] Tillman introduced that legislation. Tillman was from South Carolina, and as I hear the story he was concerned that the corporations, Republican corporations, were favorable toward blacks and he felt that there was a need to regulate them.” Thomas says the underpinning of the decision was the First Amendment’s protection of speech regardless of how people choose to assemble to participate in the political process. “If 10 of you got together and decided to speak, just as a group, you’d say you have First Amendment rights to speak and the First Amendment right of association,” he says. “If you all then formed a partnership to speak, you’d say we still have that First Amendment right to speak and of association. But what if you put yourself in a corporate form?” The answer would be the same, Thomas says. [New York Times, 2/3/2010]

Entity Tags: New York Times, Barack Obama, Clarence Thomas, Tillman Act, US Supreme Court, Washington Post, Samuel Alito

Timeline Tags: Civil Liberties

The retired director of the ACLU, Ira Glasser, writes a detailed editorial in support of the recent Citizens United ruling that opened the way for corporations and labor unions to spend unlimited money in campaign activities (see January 21, 2010). The ACLU supported the case throughout its progression (see January 10-16, 2008, March 24, 2008, March 15, 2009, June 29, 2009, and September 9, 2009), and filed briefs in support of the plaintiff, the conservative advocacy group Citizens United. Glasser says that the “screaming dismay” that “most liberals” evinced on hearing of the decision was unwarranted. Corporations are still banned from directly contributing to political campaigns, and President Obama’s assertion that the decision “reversed a century of law” is incorrect; the 1907 Tillman Act that banned corporations from contributing to campaigns or candidates is still in effect (see 1907). Instead, Glasser writes, the decision is “a huge victory… for freedom of speech and against government censorship” (see January 21, 2010, January 22, 2010, and February 2, 2010). Corporations, he writes, have the same right to speech as individuals, and they exercise that speech by spending money promoting issues and candidates, or criticizing those issues and candidates. He cites two instances in which the ACLU was stopped by the Federal Election Commission (FEC) from engaging in “political free speech,” one in 1972 when the FEC stopped the ACLU from taking out an ad in the New York Times criticizing President Nixon’s opposition to school busing to implement integration, and in 1984, when the FEC barred the ACLU from making public statements critical of President Reagan. Both instances took place inside the “window” of time before an election (30 days before a primary, 60 days before a general election) in which such utterances were considered supporting a candidate. Nonprofit groups such as Citizens United have been victimized for decades by campaign finance restrictions, Glasser writes. Later in the article, he derides the idea that restricting or controlling speech creates equality between rich and poor in elections, curbing the propensity for the rich to wield more influence and be heard more broadly than less wealthy citizens or organizations. “Money isn’t speech, but how much money one has always determines how much speech one has,” Glasser writes. “Most if not all of you reading this have never had as much speech as, say, the New York Times or George Soros or Nelson Rockefeller or George Bush or, as we recently discovered in my city, Mayor [Michael] Bloomberg. The inequities of speech that flow from the inequities of wealth are certainly a big and distorting problem for a democracy, and have always been so, and not just during elections. No one knows how to remedy that, short of fundamental re-distributions of wealth. But I’ll tell you what isn’t a remedy: granting the government the power to decide who should speak, and how much speech is enough. Nothing but disaster flows from that approach, and that was what was at stake in this case.” He concludes by advocating public financing of elections entirely, writing: “Liberals and Democrats have been the chief offenders… favoring equity in the abstract but never seeing how the particular reforms they advocated made the problems they wished to remedy worse, and never seeing that giving the government the authority to regulate speech was not a good thing. Maybe now this result, which has steamed up liberals and Democrats, may at last shift their attention to the kind of public financing that equitably provides money for more speech instead of pretending to create equity by granting the government the authority to restrict speech. We shall see.” [Huffington Post, 2/3/2010]

Entity Tags: Citizens United, American Civil Liberties Union, Federal Election Commission, Barack Obama, Tillman Act, Ira Glasser

Timeline Tags: Civil Liberties

Senator Charles Schumer (D-NY) and Representative Chris Van Hollen (D-MD) are introducing legislation that would undo the recent Citizens United Supreme Court decision that allows corporations and labor unions to spend unlimited amounts on political advertising (see January 21, 2010). The proposed legislation is a “patchwork,” in the New York Times’s phrasing, “of spending restrictions and disclosure requirements—many based in current laws. The measure would greatly expand the scope of an existing ban on political commercials paid for by foreign corporations, ban political commercials paid for by government contractors or recipients of bailout money, and force corporations and unions to make public details of what they spend directly or through advocacy groups.” Schumer and Van Hollen say they want the legislation enacted in time for it to constrain spending in the November 2010 midterm elections. “Otherwise the court will have predetermined the winner of the midterm elections,” Schumer says. “It won’t be the Republicans or the Democrats. It will be corporate America.” At least one Republican senator would have to vote to allow the bill to come up for a vote, and as of yet, it is unclear than any Republican senator will do so. Schumer and Van Hollen say they crafted the legislation to remain in line with Citizens United, providing firmer constitutional ground for the spending restrictions and disclosure requirements in the bills. The Times explains, “The Court has frowned on speech restrictions aimed at specific speakers and leaned toward disclosure as a constitutionally permissible response to fears of corruption or undo influence.” The proposed legislation would not ban corporate or labor union spending outright, but would ban spending by any domestic domestic corporation with at least 20 percent foreign ownership, any corporation whose board included a majority of foreigners, or any corporation where executive control belonged to a foreign company or government. The disclosure requirements are broader—if a corporation paid for a political ad, the legislation would require that corporation’s CEO to appear at the end of the ad to take responsibility for the message. For advocacy group ads, the biggest donor would be required to appear, and the five biggest corporate contributors would be named in the ad. The legislation would also force corporations and interest groups to set up political spending accounts and file reports of their activities. [New York Times, 2/11/2010] A Times editorial appearing six days after the initial press reports lauds the legislation as “a sensible” if “partial” response to the Citizens United decision. The Times will state: “The Schumer-Van Hollen bill is expected to be introduced later this month. Congressional leaders should put it on a fast track so it can be in place in time for this year’s midterm elections. It could help keep special interest money in check until the real solution comes: a Supreme Court ruling reversing the deeply antidemocratic Citizens United decision.” [New York Times, 2/17/2010]

Entity Tags: Charles Schumer, US Supreme Court, Chris Van Hollen, New York Times

Timeline Tags: Civil Liberties

Campaign finance lawyers tell the New York Times that a loophole in the recent Citizens United Supreme Court decision, a decision that allows corporations and labor unions to spend unlimited amounts on political advertising (see January 21, 2010), could allow corporations and unions to make their donations anonymously and avoid the disclosure requirements that the Citizens United ruling left in place. Two earlier Court decisions, the 1986 Federal Election Commission v. Massachusetts Citizens for Life (see December 15, 1986) and the 2007 Wisconsin Right to Life rulings (see June 25, 2007), could be used in tandem with the Citizens United decision to make it possible for corporations and unions to donate anonymously to trade organizations and other nonprofit entities. Those entities could then use the money to finance political advertisements. Those nonprofit groups, usually called 501(c) groups after the applicable portion of the IRS tax code, had been allowed to finance so-called “electioneering communications” long before the Citizens United decision, but until now, corporations have not been allowed to spend unlimited amounts of money advocating for a candidate’s election or defeat. Nor could they donate money to nonprofit groups that engage in “electioneering communications.” The 1986 decision gave some nonprofit organizations the right to advertise for or against political candidates, but banned corporations and unions from giving money to those groups. The Citizens United decision overturned that ban. And the 2006 ruling allowed corporations to spend money on “electioneering communications.” Now, experts like corporate lawyer Kenneth A. Gross, a former associate general counsel for the Federal Election Commission (FEC), believe that corporations will donate heavily and anonymously to those “third party” groups to buy political advertising. “Clearly, that’s where the action’s going to be,” Gross says. Corporations that spend money directly on political advertising still have to identify themselves in the ads, Gross says, and report their donors. Many corporations do not want to identify themselves in such advertisements. The nonprofit groups are an attractive alternative to public disclosure, Gross says. Congressional Democrats call the loophole dangerous, and have proposed legislation that would require nonprofit groups to disclose their donors for political advertising (see February 11, 2010). The Times states, “It is impossible to know whether corporations or unions are taking advantage of the new freedom to funnel pro- or anti-candidate money through nonprofit organizations.” [New York Times, 2/27/2010]

Entity Tags: New York Times, US Supreme Court, Kenneth A. Gross

Timeline Tags: Civil Liberties

Chief Justice John Roberts tells a group of law students that President Obama and Congressional Democrats turned the recent State of the Union address into a “pep rally” targeting Court justices, and questions the need for justices to attend the event. During the speech, Obama criticized the Citizens United decision allowing corporations to spend unlimited amounts of money on political advertising (see January 21, 2010), and Justice Samuel Alito drew media attention by mouthing the words “Not true” in response to Obama’s remarks (see January 27-29, 2010). Roberts is referring to the fact that many Congressional Democrats cheered the president’s remarks. He calls the event “very troubling,” and says, “To the extent the State of the Union has degenerated into a political pep rally, I’m not sure why we are there.” Six of the Court’s nine justices, including Alito and Roberts, were in attendance. Roberts says he is less concerned about the criticism of the Court than the expectation that the justices must sit silently: “Anybody can criticize the Supreme Court.… I have no problem with that. The image of having the members of one branch of government standing up, literally surrounding the Supreme Court, cheering and hollering while the Court—according to the requirements of protocol—has to sit there expressionless, I think is very troubling. It does cause me to think… why are we there?” Justices Antonin Scalia and Clarence Thomas did not attend, complaining that the address would be a “partisan” event (see February 2, 2010), and Justice John Paul Stevens, who strongly dissented from the Citizens United decision, did not attend due to age and health issues. White House press secretary Robert Gibbs responds strongly to Roberts’s remarks, saying, “What is troubling is that this decision opened the floodgates for corporations and special interests to pour money into elections, drowning out the voices of average Americans.” [Los Angeles Times, 3/10/2010] Three weeks after Roberts makes his observations, conservative talk show host David Limbaugh will call Obama’s criticisms a “public assault” on the justices. [David Limbaugh, 4/5/2012]

Entity Tags: John Paul Stevens, Barack Obama, Antonin Scalia, Clarence Thomas, John G. Roberts, Jr, Samuel Alito, David Limbaugh, Robert Gibbs, US Supreme Court

Timeline Tags: Civil Liberties

The Washington, DC, Circuit Court of Appeals unanimously holds that provisions of the Federal Election Campaign Act (FECA—see February 7, 1972, 1974, and May 11, 1976) violate the First Amendment in the case of a nonprofit, unincorporated organization called SpeechNow.org. SpeechNow collects contributions from individuals, but not corporations, and attempted to collect contributions in excess of what FECA allows. In late 2007, SpeechNow asked the Federal Election Commission (FEC) if its fundraising plans would require it to register as a political committee, and the FEC responded that the law would require such registration, thus placing SpeechNow under federal guidelines for operation and fundraising. In February 2008, SpeechNow challenged that ruling in court, claiming that the restrictions under FECA were unconstitutional. FECA should not restrict the amount of money individuals can donate to the organization, it argued, and thusly should not face spending requirements. It also argued that the reporting limits under FECA are unduly burdensome. The district court ruled against SpeechNow, using two Supreme Court decisions as its precedents (see January 30, 1976 and December 10, 2003), and ruled that “nominally independent” organizations such as SpeechNow are “uniquely positioned to serve as conduits for corruption both in terms of the sale of access and the circumvention of the soft money ban.” SpeechNow appealed that decision. The appeals court reverses the decision, stating that the contribution limits under FECA are unconstitutional as applied to individuals. The reporting and organizational requirements under FECA are constitutionally valid, the court rules. The appeals court uses the recent Citizens United ruling as justification for its findings on contribution limits (see January 21, 2010). [New York Times, 3/28/2010; Federal Elections Commission, 2012; Moneyocracy, 2/2012] The FEC argued that large contributions to groups that made independent expenditures could “lead to preferential access for donors and undue influence over officeholders,” but Chief Judge David Sentelle, writing for the court, retorts that such arguments “plainly have no merit after Citizens United.” Stephen M. Hoersting, who represents SpeechNow, says the ruling is a logical and welcome extension of the Citizens United ruling, stating, “The court affirmed that groups of passionate individuals, like billionaires—and corporations and unions after Citizens United—have the right to spend without limit to independently advocate for or against federal candidates.” [New York Times, 3/28/2010] Taken along with another court ruling, the SpeechNow case opens the way for the formation of so-called “super PACs,” “independent expenditure” entities that can be run by corporations or labor unions with monies directly from their treasuries, actions that have been banned for over 60 years (see 1925 and June 25, 1943). The New York Times will later define a super PAC as “a political committee whose primary purpose is to influence elections, and which can take unlimited amounts of money, outside of federal contribution limits, from rich people, unions, and corporations, pool it all together, and spend it to advocate for a candidate—as long as they are independent and not coordinated with the candidate.” Super PACs are not required by law to disclose who their donors are, how much money they have raised, and how much they spend. CNN will later write, “The high court’s decision allowed super PACs to raise unlimited sums of money from corporations, unions, associations, and individuals, then spend unlimited sums to overtly advocate for or against political candidates.” OpenSecrets, a nonpartisan organization that monitors campaign finance practices, later writes that the laws underwriting Super PACs “prevent… voters from understanding who is truly behind many political messages.” [New York Times, 3/28/2010; Federal Elections Commission, 2012; OpenSecrets (.org), 2012; CNN, 3/26/2012; New York Times, 5/22/2012]

Entity Tags: Stephen M. Hoersting, New York Times, Federal Election Commission, Federal Election Campaign Act of 1972, OpenSecrets (.org), David Sentelle, CNN, SpeechNow (.org)

Timeline Tags: Civil Liberties, 2012 Elections

Adam Skaggs, an attorney for the Brennan Center for Justice, writes that the controversial Citizens United decision by the Supreme Court (see January 21, 2010) is going to have a huge impact on judicial elections in 2010 and beyond. The record for the costliest judicial race in US history was set in a 2004 Illinois contest between Lloyd Karmeier and Gordon Maag, competing for the bench in the state’s 5th Judicial District. Between them, they raised and spent almost $9.4 million, more than double the previous national record, and an amount Karmeier later called “obscene.” Special interests on both sides of the election became heavily involved, with Karmeier’s corporate donations from such organizations as the US Chamber of Commerce and State Farm Insurance winning out over Maag’s donations from trial lawyers. After the election, Karmeier cast the deciding vote in a case that saved State Farm $500 million. An Ohio labor official said in commenting on the often-heavy spending on judicial races, “We figured out a long time ago that it’s easier to elect seven judges than to elect one hundred and 32 legislators.” The Citizens United case, Skaggs writes, will undoubtedly lead to corporate spending in judicial races like never before. That spending, he writes, “threatens to further erode the judiciary’s independence.” Even former Supreme Court Justice Sandra Day O’Connor has said that “Citizens United has signaled that the problem of campaign contributions in judicial elections might get considerably worse and quite soon.” Skaggs cites a number of races that will likely be targets for big corporate donors:
bullet Illinois Supreme Court Chief Justice Thomas R. Fitzgerald is a probable target after striking down a 2005 law that placed caps on medical malpractice claims; Skaggs predicts the same corporate interests that helped Karmeier win a judicial seat will attempt to defeat Fitzgerald.
bullet In Alabama, three seats currently held by Republicans are contested. One of these, Alabama Supreme Court Justice Tom Parker, is the likely recipient of heavy corporate funding, because, as Skaggs writes, groups like the Business Council of Alabama want Parker on the bench to protect conservative interests on economic issues. That corporate spending will likely outstrip spending on Democratic candidates, which will come primarily from liberal judicial groups and the state’s Democratic Party.
A 2006 study by the New York Times showed that judges routinely decide cases involving campaign donors, and in 70 percent of those cases, find in favor of those donors. One judge in the study voted on behalf of his donors 91 percent of the time. In Nevada, judges routinely accept huge donations even when running unopposed, often from donors who have cases pending before those judges. Nevada voters will decide in the November elections whether to scrap the system of an elected judiciary and move to an appointment system. Skaggs recommends that states should adopt public financing systems for judicial elections (four states—New Mexico, North Carolina, West Virginia, and Wisconsin already do so) and eliminate entirely the concept of outside interests donating to judicial campaigns. He recommends stricter disclosure rules, so that the public knows who is contributing how much to judicial candidates. And, he writes, “states should institute new disqualification regulations to ensure that, if a judge is assigned to hear the case of a major campaign supporter, he or she must step aside and let a wholly impartial judge preside.” Otherwise, he writes: “The very legitimacy of the courts depends on the public believing that judges will treat every party without bias or favor. If, in the Citizens United era, states don’t adopt public financing and strong disclosure and disqualification rules, the judiciary’s credibility will dissolve—and quickly.” [New Republic, 4/5/2010]

Entity Tags: New York Times, Adam Skaggs, Business Council of Alabama, Lloyd Karmeier, US Chamber of Commerce, Sandra Day O’Connor, Thomas R. Fitzgerald, Tom Parker (ALSC), Gordon Maag, US Supreme Court

Timeline Tags: Civil Liberties

One of many images produced to protest Target’s perceived anti-gay donations.One of many images produced to protest Target’s perceived anti-gay donations. [Source: Village Voice]The Target Corporation, owner of Target department stores, donates $150,000 to a fund with close ties to the campaign of Tom Emmer (R-MN), the GOP’s presumptive nominee for Minnesota’s governor, through its federal PAC TargetCitizens. The donation is $100,000 in cash and $50,000 in “brand consulting.” Another Minnesota-based retail chain, Best Buy Co., gives $100,000 to the group MN Forward, which describes itself as “nonpartisan” but only donates money to Emmer. The money is to be used primarily for ads supporting Emmer, a state legislator. The donations are allowable under the controversial Citizens United ruling that allows corporations to give unrestricted amounts to political organizations (see January 21, 2010). Emmer is a controversial candidate with a record of fiery opposition to gay rights and other stances not popular with moderate and liberal voters, and some are talking about organizing a boycott of Target and Best Buy. Target is the primary focus of the criticism, in part because it has promoted itself as a progressive alternative to corporate retailers such as Wal-Mart, according to an official with progressive advocacy group MoveOn.org. A Target spokesperson, Lena Michaud, says the company supports causes and candidates “based strictly on issues that affect our retail and business objectives.” TargetCitizens, according to Michaud, donates money to both Democratic and Republican candidates. Though Michaud says Target spreads its donations equally between candidates of the two parties, the $150,000 donation exceeds the amount TargetCitizens has donated in all other federal campaigns this year; Target executives have donated primarily to Republicans as well. Emmer, aside from his opposition to gay rights, favors a strict stance on immigration and has advocated slashing the wages of food service workers, whom he claims often make six-figure incomes when their tips are counted. He also advocates the nullification of some portions of the US Constitution, and wants to nullify the recent health care reform legislative package. In contrast, Target has cultivated a moderate image in Minnesota, making public donations to schools, food shelves, and the annual Twin Cities Gay Pride Festival. Target CEO Gregg Steinhafel, a heavy Republican donor, says his company’s commitment to gay rights is “unwavering.” MN Forward director Brian McClung, who formerly served as spokesman for retiring Governor Tim Pawlenty (R-MN), says: “We believe that everybody has the right to express their opinions and we’re going to run a fair and factual campaign. Our first ad is a positive ad talking about a candidate’s vision for creating jobs.” [Associated Press, 7/27/2010; Think Progress, 7/27/2010; Washington Post, 8/19/2010] Paul Finkelstein, CEO of Regis Corporation, which has also donated to MN Forward, explains that his company, like Target and Best Buy, donates based on economic concerns. “From a social perspective, I don’t agree with many of his platforms,” Finkelstein says. “My concern, frankly, is jobs. We have to have a tax policy that enables us to be able to create jobs.” Emmer wants to institute massive tax cuts, particularly for business owners and the wealthy, if he is elected as governor. Best Buy spokeswoman Susan Busch Nehring says of the controversy, “We’ve learned from this, and we will thoughtfully review the process we use to make political contributions, to avoid any future confusion.” [TPMDC, 7/30/2010; Washington Post, 8/19/2010]
Backlash - Local gay-rights organization Twin Cities Pride says it is “reviewing its partnership with Target” in light of the Emmer donations, while another gay-rights organization, OutFront Minnesota, says in a statement: “Emmer stands alone among candidates for governor in opposing equality for GLBT Minnesotans. Target should not stand with him.” OutFront Minnesota director Monica Meyer says, “This is inconsistent with their values to support the only candidate for governor who stands up for discrimination and divisiveness in Minnesota.” Former Democratic campaign worker Laura Hedlund pickets outside a Minnesota Target store, and tells a reporter, “I think Target is making a huge mistake” in donating money to support Emmer. A YouTube video posted by Minnesota citizen and former Target consumer Randi Reitan goes “viral”; in the video, Reitan returns $226 worth of items to a Target store and cuts up her Target credit card, explaining that she wants equality for her gay son, which Emmer, and by extension Target, does not support. Political science professor David Schultz says he is surprised Target would make such a controversial announcement of support: “I thought they would have sat this one out because they are so smart in terms of marketing. Target has had the warm fuzzies with progressives for years.… Now they risk alienating half the state’s population.” Emmer himself complains that his right to freedom of speech is being challenged by the protests against Target, and accuses protesters of demonstrating against him for personal reasons, saying: “The sad part to me is, I thought we were supposed to be able to exercise our rights of free speech. We’re supposed to celebrate the fact that we have different perspectives. And it doesn’t seem like that’s what this is about. This seems to be more personal and we’ve got to get over that.” [Associated Press, 7/27/2010; TPMDC, 7/30/2010] MN Forward continues to garner significant corporate donations even after the Target backlash. [Minnesota Public Radio, 8/5/2010; Minnesota Independent, 8/6/2010]
Apology - Days later, Steinhafel issues a public apology for the donation, in an apparent effort to ward off planned boycotts by gay-rights and Democratic groups. Steinhafel writes a letter to Target employees that is made public, claiming that the donation was merely to support economic growth and job creation. He acknowledges that the contribution affected many employees in ways he did not anticipate and says: “[F]or that I am deeply sorry.… The diversity of our team is an important aspect of our culture and our success, and we did not mean to disappoint you, our team or our valued guests.” Michaud says the company will do what she calls a strategic review of political donations, and plans to lead a discussion on improving gay rights in the workplace. “Our commitment right now is in letting people know that we’ve heard their feedback and we’re really sorry that we’ve let them down,” Michaud says. “We want to continue doing the many things that Target has done as a company to foster our inclusive corporate culture and then look at ways of doing things better in the future.” Meyer says she is glad to hear Steinhafel’s apology, but her group intends to wait and see if Target fulfills its promise to be supportive of gay rights: “People are really appreciating them reiterating that kind of support but they want to make sure that their consumer dollars aren’t going to fund candidates who do the exact opposite of what Target says it wants to promote in society.” Soon after Steinhafel’s apology, Human Rights Campaign, a human rights organization that supports gay rights, says it spoke with Target about contributing $150,000 to a candidate who does support gay rights, but, the organization says, those talks have broken down. Allison Hayward of the Center for Competitive Politics says corporations should view the Target controversy as a cautionary tale. “This is sort of an object lesson for the next time a Sears or a Wal-Mart thinks about getting involved in some political expenditures,” she says. “Large corporations are not generally interested in alienating customers.” [Minnesota Public Radio, 8/5/2010; Washington Post, 8/19/2010]
Donations to Anti-Gay Candidates Continue - Federal Election Commission (FEC) records released in December 2010 will show that Target continues to donate to anti-gay candidates. [Think Progress, 12/24/2010]
Policy Change - In February 2011, Target Corporation issues a new policy to tighten oversight and restrict how the firm’s funds are used for political purposes. Tim Smith of Walden Asset Management, one of the companies that filed a shareholder resolution criticizing the donation, says: “This is definitely a trend. More and more companies are stepping up and being transparent about their political spending.” Target still refuses to disclose how much money it donates to trade associations, which are often some of the largest political campaign donors. Target now has a committee tasked with guiding “the decision-making process regarding financial support of political activities,” according to a policy document. [Los Angeles Times, 2/19/2011]

Entity Tags: Allison R. Hayward, Laura Hedlund, Gregg Steinhafel, Twin Cities Pride, Best Buy Co., David Schultz, Brian McClung, Federal Election Commission, Human Rights Campaign, Tim Smith, Tom Emmer, TargetCitizens, Monica Meyer, MN Forward, Lena Michaud, Tim Pawlenty, OutFront Minnesota, MoveOn (.org), Randi Reitan, Paul Finkelstein, Target Corporation, Susan Busch Nehring

Timeline Tags: Civil Liberties

The exterior of the St. Regis Resort in Aspen, Colorado.The exterior of the St. Regis Resort in Aspen, Colorado. [Source: Real Aspen (.com)]The reclusive but highly influential Charles Koch, of the Koch brothers oil empire (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, and July 3-4, 2010), holds a private meeting with some 200 wealthy financial and political figures at the exclusive St. Regis Resort in Aspen, Colorado. The meeting is designed to bring the participants together to combat what Koch calls “the threats posed to American freedom and prosperity” by Democrats and the Obama administration. To that end, many of the sessions in the two-day event target methods and plans to influence and manipulate the upcoming 2010 midterm elections. The meeting is highly secretive, with participants warned not to discuss the proceedings with anyone, especially members of the media, but in August, the liberal news Web site Think Progress will obtain a copy of a September 2010 memo from Koch that contains the June 2010 event program. The various events include:
bullet a seminar on “The Bankrupting of America”;
bullet a seminar on the “regulatory assault” on environmental concerns and how to further business goals by defeating environmental regulations;
bullet a seminar on how to influence universities and colleges to “advance liberty”;
bullet a seminar on how to “micro-target” the electorate in order to win elections for conservative Republican candidates;
bullet a seminar on “The Threats to American Freedom and Prosperity” conducted by Koch himself;
bullet “Understanding the Threats We Face,” a seminar moderated by Wall Street Journal reporter Stephen Moore (see May 6, 2006), Ramesh Ponnuru of the National Review, Phil Kerpen of Americans for Prosperity (AFP—see Late 2004), and Peter Wallinson of the far-right American Enterprise Institute (AEI);
bullet a seminar on “An Integrated Strategy to Face These Threats,” moderated by Koch’s senior assistant Richard Fink;
bullet an evening address, “Is America On the Road to Serfdom?” by former Fox News talk show host Glenn Beck;
bullet a seminar, “We’re Spending Too Much,” on how to lower government spending, conducted by Russ Roberts of the far-right libertarian Mercatus Center;
bullet a seminar, “Understanding This Year’s Electorate,” by journalist and AEI fellow Michael Barone;
bullet a follow-up seminar on how to “Fram[e] the Debate on Spending” for the elections, moderated by members of AEI and the Mercatus Center;
bullet a seminar, “Mobilizing Citizens for November,” featuring Tim Phillips, the head of AFP (see August 6, 2009) and Karl Crow, the head of Themis, the Koch-funded computer database being used in “micro-targeting” voters (see April 2010 and After);
bullet a seminar hosted by Arthur Brooks of AEI on how to frame the “fight” as one between “free enterprise and Big Government”;
bullet a seminar on how best to target participants’ philanthropic gifting;
bullet a seminar on “reforming” K-12 public and charter schools;
bullet a seminar on impacting judicial elections in several key states;
bullet a seminar on transitioning from the 2010 elections to the 2012 presidential elections and how “supporters of economic freedom” can “start planning today” for that election;
bullet a final evening address, “What’s Ahead for America?” by noted neoconservative columnist and Fox News pundit Charles Krauthammer.
The event features David Chavern, a senior official at the US Chamber of Commerce, one of the entities contributing the most funding to conservative political organizations (see August 2, 2010, September 13-16, 2010, and October 2010). Think Progress’s Lee Fang will write: “In an election season with the most undisclosed secret corporate giving since the Watergate-era, the memo sheds light on the symbiotic relationship between extremely profitable, multi-billion dollar corporations and much of the conservative infrastructure. The memo describes the prospective corporate donors as ‘investors,’ and it makes clear that many of the Republican operatives managing shadowy, undisclosed fronts running attack ads against Democrats were involved in the Koch’s election-planning event.” Many of the “investors” listed as attending or participating in the events include executives from health care corporations; executives from fast-food and other food-industry executives who have fought against providing health insurance to their employees; an array of banking and financial executives; and a number of energy industry executives. Fred Malek, who serves as the top fundraiser for a $56 million attack ad campaign against Democrats (see Mid-October 2010), attends, as does Heather Higgins of the Independent Women’s Forum, another organization that has spent millions opposing health-care reform. Many of the election-focused seminars address how to take advantage of the Citizens United ruling that lifted restrictions on corporate election spending (see January 21, 2010). The Aspen meeting, as with earlier meetings, is managed by Kevin Gentry, a Koch Industries executive and Washington lobbyist. [Think Progress, 8/23/2010; Koch, 9/24/2010 pdf file]

Entity Tags: David Chavern, Tim Phillips, Stephen Moore, St. Regis Resort, Glenn Beck, Charles Koch, Arthur Brooks, Fred Malek, Charles Krauthammer, Russ Roberts, Think Progress (.org), Ramesh Ponnuru, Kevin Gentry, Richard Fink, Heather Higgins, Lee Fang, Karl Crow, Obama administration, Phil Kerpen, Michael Barone, Peter Wallinson

Timeline Tags: Civil Liberties

The Web site of conservative pundit and activist Andrew Breitbart misquotes Solicitor General Elena Kagan to give the appearance that she condones book banning. The story comes from a video produced by Naked Emperor News and promoted by Breitbart TV, featuring edited audio recordings of Kagan’s oral arguments before the Supreme Court in the Citizens United decision (see September 9, 2009 and January 21, 2010). [Media Matters, 6/29/2010] Breitbart TV headlines its story: “Kagan’s own words: It’s fine if the law bans books because government won’t really enforce it.” [Breitbart TV, 6/28/2010] The story is immediately picked up by the conservative Drudge Report, which uses a nearly identical headline and links to the Breitbart site. [Media Matters, 6/29/2010] The influential conservative blog Gateway Pundit posts the story, again with an almost-identical headline, and includes the comment, “Spoken like a true leftist radical…” [Jim Hoft, 6/28/2010] (Both Breitbart TV and Gateway Pundit will later delete their posts.) Fox Nation, the blog for Fox News, also posts the story with the headline: “Kagan: It’s Fine If the Law Bans Books.” [Fox Nation, 6/29/2010] However, the video and audio have been edited to have Kagan claiming something she never said. During her argument before the Court, she actually argued that federal law had never banned books and probably could not do so. She never uttered the words, “It’s fine if the law bans books.” She said that if the government did try to ban books under campaign finance laws, “there would be quite good as-applied challenge” to the law, meaning that if a corporation did publish a book that advocated for or against a candidate during an election season, it would have a strong case against any potential banning by the government. Kagan later said: “[W]hat we’re saying is that there has never been an enforcement action for books. Nobody has ever suggested—nobody in Congress, nobody in the administrative apparatus has ever suggested that books pose any kind of corruption problem, so I think that there would be a good as-applied challenge with respect to that.” [Media Matters, 6/29/2010] Naked Emperor News, which produced the video, is a small organization run by conservative activist Pam Key and promoted by the Breitbart Web network. [Media Matters, 9/2/2010]

Entity Tags: Pam Key, Fox Nation, Gateway Pundit (.com), Elena Kagan, Andrew Breitbart, Drudge Report, Naked Emperor News, Breitbart TV

Timeline Tags: Civil Liberties

The advocacy wing of the Americans for Prosperity (AFP) Foundation, founded by right-wing billionaire David Koch in 2004 (see Late 2004 and August 30, 2010), holds a weekend summit called “Texas Defending the American Dream” in Austin, Texas.
Koch-Funded, Koch Brand Not in Evidence - Neither David Koch nor his brother, Charles, attend the affair, and the name Koch is not in evidence. An advertisement for the event portrays it as a populist uprising against vested corporate power, stating: “Today, the voices of average Americans are being drowned out by lobbyists and special interests. But you can do something about it.” The ad makes no mention that the event is funded by Koch Industries, the second-largest private corporation in the US. Of Americans for Prosperity, Obama adviser David Axelrod says, “What they don’t say is that, in part, this is a grassroots citizens’ movement brought to you by a bunch of oil billionaires.”
Funding and Training the Tea Parties - Koch Industries has long denied that it has any connection to tea party organizations, and has denied that either the firm or the Koch brothers have funded any tea party groups (see February 27, 2009 and April 15, 2009). David Koch has denied ever being approached by tea party representatives. But at the Austin event, event organizer Peggy Venable—an AFP employee who has worked for Koch-funded political groups since 1994—tells the crowd, “We love what the tea parties are doing, because that’s how we’re going to take back America!” She calls herself one of the earliest members of the tea party movement, telling a reporter, “I was part of the tea party before it was cool!” AFP, she says, is in business to help “educate” tea party activists on policy details and to train them for further activism so that their political energy can be channelled “more effectively.” AFP has provided tea party organizers with lists of elected Democrats to target. Of the Kochs, she says: “They’re certainly our people. David’s the chairman of our board. I’ve certainly met with them, and I’m very appreciative of what they do.”
'Victory or Death!' - Some 500 people attend the event, which features training seminars for “tea party” activists around the state and a series of speakers launching blunt attacks against President Obama and his administration. Venable warns the attendees that the Obama administration has “a socialist vision for this country.” She gives the Texas AFP “Blogger of the Year” award to a woman named Sibyl West, who recently called Obama the nation’s “cokehead in chief.” Featured speaker Janine Turner, an actress best known for her role in the TV series Northern Exposure, tells the audience: “They [Obama and the Democratic Party] don’t want our children to know about their rights. They don’t want our children to know about a God!” Former Texas Solicitor General Ted Cruz tells the crowd that Obama is “the most radical president ever to occupy the Oval Office,” and has a hidden agenda: “the government taking over our economy and our lives.” Defeating Obama and his “secret agenda” is, Cruz says, “the epic fight of our generation!” As the crowd gives him a standing ovation, Cruz shouts the words said by a Texan at the Alamo: “Victory or death!” [New Yorker, 8/30/2010]

Entity Tags: Janine Turner, Barack Obama, Americans for Prosperity, Charles Koch, David Koch, Obama administration, Sibyl West, David Axelrod, Koch Industries, Ted Cruz, Peggy Venable

Timeline Tags: Domestic Propaganda

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

US Senate candidate Sharron Angle (R-NV) falsely claims that the Democratically backed DISCLOSE Act, a bill that would have imposed some disclosure regulations on corporate and union campaign financiers (see July 26-27, 2010), was passed into law. Angle is challenging Senate Majority Leader Harry Reid (D-NV). The previous day, Angle posted on Twitter that the DISCLOSE Act’s defeat was “a great victory for the first amendment.” But today, Angle joins conservative talk radio host Heidi Harris to claim that the act is actually in effect and she opposes it. Asked about her position on campaign finance, Angle says: “Well I think that the Supreme Court has really made their decision on this, they found that we have a First Amendment right across the board that was violated by the McCain-Feingold act (see March 27, 2002 and January 21, 2010). And that’s what they threw out, was those violations. The McCain-Feingold Act is still in place. The DISCLOSE Act is still in place. It’s just that certain provisions within that they found to be definitely violating the First Amendment. If we didn’t have the DISCLOSE Act there would be a lot of different things that people wouldn’t be able to find out. And certainly you can go to FEC.gov and see where Harry Reid is getting most of his money from special interests.” [Las Vegas Sun, 7/28/2010; TPMDC, 7/28/2010]

Entity Tags: Harry Reid, Sharron Angle, US Supreme Court, DISCLOSE Act of 2010

Timeline Tags: Civil Liberties

Democrats are aghast at the amount of corporate spending they expect to be used against them in the 2010 elections, according to media reports. The US Chamber of Commerce (see September 20, 2010, September 30, 2010, and October 2010) projects that it will spend $75 million this year, over double its spending of $35 million in 2008, to oppose Democrats running for federal and state office. USCoC officials say that spending could go even higher. Other organizations, such as American Crossroads, a right-wing political group headed by former Bush political advisor Karl Rove (see September 20, 2010 and February 21, 2012), are on track to raise and spend tens of millions, again to fund political activities designed to prevent Democrats from being elected. A report circulating among Democratic Congressional leaders says that some $300 million has been raised for the 2010 campaign, all coming from 15 conservative tax-exempt organizations. Sheila Krumholz of the Center for Responsive Politics says: “A commitment of $300 million from just 15 organizations is a huge amount, putting them in record territory for groups on the right or left. With control of Congress hanging in the balance, this kind of spending could have a major impact.” Chris Van Hollen (D-MD), chairman of the Democratic Congressional Campaign Committee (DCCC), says the amount of corporate funding for Republican political activities is “raising the alarm bell.” The DCCC spent $177 million in all of 2008’s Congressional races. Labor unions and other groups allied with Democrats plan heavy spending of their own, but nothing to compare to conservative corporate funding. The Service Employees International Union (SEIU), for example, plans to spend $44 million on election-related spending this year. Political scientist Anthony J. Corrado Jr. says: “What we are seeing is that major businesses and industries are taking advantage of the recent court ruling and favorable political environment. They are already committing substantially more money than they have in any previous election cycles.” Corrado is referring to the controversial Citizens United Supreme Court decision (see January 21, 2010) that has overturned almost a century’s worth of campaign spending limitations. USCoC officials also point to a 2007 Supreme Court ruling that overturned the ban on political issue advertising by corporations and labor unions close to an election (see June 25, 2007). The Los Angeles Times reports that the heavy corporate fundraising for Republican political interests is driven largely by corporate opposition to the Democrats’ focus on health care reform, and a bill passed in July that established stricter government monitoring and regulation of the financial system. Roger Nicholson of the International Coal Group, a mining company, recently wrote to fellow executives urging them to contribute money to defeat the “fiercely anti-coal Democrats” in Washington, specifically targeting a number of Democrats in Kentucky and West Virginia. Five of the largest health insurers, including Aetna, Cigna, and United HealthCare, are banding together to create and fund a new nonprofit group to help influence elections. The group has not yet been formed, but reports say that it will spend some $20 million to defeat Democrats. [Los Angeles Times, 8/2/2010]

Entity Tags: Karl C. Rove, Anthony J. Corrado Jr., American Crossroads, Aetna, Chris Van Hollen, International Coal Group, Service Employees International Union, US Supreme Court, Los Angeles Times, Roger Nicholson, UnitedHealth Group, Cigna, US Chamber of Commerce, Sheila Krumholz

Timeline Tags: Civil Liberties, 2010 Elections

Liberal New York Times columnist Frank Rich writes an op-ed focusing on the billionaire Koch brothers (see 1977-Present, 1979-1980, 1981-2010, 1984 and After, 1997, Late 2004, August 5, 2009, November 2009, July 3-4, 2010, August 30, 2010, and October 4, 2011), the oil magnates who are the driving force behind the tea party movement. Rich writes that “even those carrying the Kochs’ banner may not know who these brothers are.” Rich, using information from historian Kim Phillips-Fein’s book Invisible Hands, notes that the Kochs are the latest in a long line of behind-the-scenes corporate manipulators “who have financed the far right (see September 2010 and August 17, 2011) ever since the du Pont brothers spawned the American Liberty League in 1934 to bring down” the Roosevelt administration (see August 23, 1934 and After). “You can draw a straight line from the Liberty League’s crusade against the New Deal ‘socialism’ of Social Security, the Securities and Exchange Commission, and child labor laws to the John Birch Society-Barry Goldwater assault on [the Kennedy administration] and Medicare (see 1962 and November 1963) to the Koch-Murdoch-backed juggernaut against our ‘socialist’ president,” Rich writes. “Only the fat cats change—not their methods and not their pet bugaboos (taxes, corporate regulation, organized labor, and government ‘handouts’ to the poor, unemployed, ill, and elderly). Even the sources of their fortunes remain fairly constant. Koch Industries began with oil in the 1930s and now also spews an array of industrial products, from Dixie cups to Lycra, not unlike DuPont’s portfolio of paint and plastics. Sometimes the biological DNA persists as well. The Koch brothers’ father, Fred (see 1940 and After), was among the select group chosen to serve on the Birch Society’s top governing body. In a recorded 1963 speech that survives in a University of Michigan archive, he can be heard warning of ‘a takeover’ of America in which Communists would ‘infiltrate the highest offices of government in the US until the president is a Communist, unknown to the rest of us.’ That rant could be delivered as is at any tea party rally today.” Rich also focuses on FreedomWorks (see 1984 and After, May 16, 2008, February 16-17, 2009, February 19, 2009 and After, February 27, 2009, March 13, 2009 and After, April 2009 and After, April 14, 2009, April 15, 2009, June 26, 2009, Late July, 2009, August 5, 2009, August 6, 2009, August 6-7, 2009, August 10, 2009, August 14, 2009, August 19, 2009, August 24, 2010, September 2010, September 12, 2010 and August 17, 2011), one of the two “major sponsor[s]” of the tea party movement, along with Americans for Prosperity (AFP—see Late 2004, October 2008, January 2009 and After, February 16, 2009, February 16-17, 2009, February 17, 2009, February 19, 2009 and After, April 2009 and After, April 8, 2009, May 29, 2009, July 23, 2009, July 27, 2009, August 5, 2009, August 6, 2009, August 6, 2009, August 10, 2009, August 14, 2009, October 2, 2009, November 2009, February 15, 2010, April 15, 2010, July 3-4, 2010, August 24, 2010, August 30, 2010, September 20, 2010 and August 17, 2011). Both FreedomWorks and AFP are heavily funded by the Koch brothers. Rich writes: “Tea partiers may share the Kochs’ detestation of taxes, big government, and [President] Obama. But there’s a difference between mainstream conservatism and a fringe agenda that tilts completely toward big business, whether on Wall Street or in the Gulf of Mexico, while dismantling fundamental government safety nets designed to protect the unemployed, public health, workplace safety, and the subsistence of the elderly.” Rich writes that the Koch brothers’ agenda is “inexorably… morphing into the GOP agenda,” and points to Republican luminaries such as incoming House Speaker John Boehner (R-MO) and tea party candidates such as Rand Paul (see March 27, 2010, May 17, 2010, October 25, 2010 and After, October 26, 2010 and November 10, 2010), Sharron Angle (see January 2010, Mid-May, 2010, Mid-June 2010, June 16, 2010 and September 18, 2010), and Joe Miller (see July 19, 2010, July 23, 2010, October 17, 2010, October 17, 2010 and October 18, 2010). “The Koch brothers must be laughing all the way to the bank knowing that working Americans are aiding and abetting their selfish interests,” Rich concludes. [New York Times, 8/28/2010]

Entity Tags: Rand Paul, Koch Industries, Sharron Angle, Joseph Wayne (“Joe”) Miller, Kim Phillips-Fein, John Birch Society, Barack Obama, Americans for Prosperity, American Liberty League, Charles Koch, John Boehner, David Koch, Fred Koch, FreedomWorks, Frank Rich

Timeline Tags: Domestic Propaganda

Charles and David Koch.Charles and David Koch. [Source: PRWatch (.org)]The New Yorker publishes a lengthy analysis of the Koch (pronounced “coke”) financial empire, and its long-time financial support for right-wing causes (see 1981-2010). The article, written by investigative reporter Jane Mayer, shows that Koch Industries, led by brothers David and Charles Koch, has donated over $250 million to Republican and conservative politicians and organizations since the mid-1990s. The Koch brothers are also well-known philanthropists, having given millions to New York City’s Metropolitan Opera, $100 million to the Lincoln Center’s New York State Theatre building, $40 million to the Sloan-Kettering Cancer Center, $20 million to the American Museum of Natural History, and $10 million to the Metropolitan Museum of Art.
Second-Largest Private Industry in US - Koch Industries, a $100 billion conglomerate, garners most of its profits from oil refineries and associated interests; it owns the firms that manufacture Brawny paper towels, Dixie cups, Georgia-Pacific lumber and paper products, Stainmaster carpet, and Lycra fabric. Koch Industries is the second largest private company in the US after Cargill, and taken together, the Koch brothers’ fortune of some $35 billion places them just behind Microsoft’s Bill Gates and Wall Street financier Warren Buffett as the nation’s richest people.
Longtime Libertarians - Personally, the Koch brothers espouse a libertarian philosophy—drastic reductions in corporate and personal taxes, huge cuts in government expenditures on social services, and widespread deregulation of industry, particularly environmental. Koch Industries was recently listed in the top 10 of US air polluters, and has for years funded organizations that oppose climate change, giving even more than ExxonMobil to organizations, foundations, and think tanks that work to derail or overturn climate change legislation. Koch funds so many different organizations that oppose various initiatives of the Obama administration that Washington insiders call the Koch ideological network the “Kochtopus.” While the Koch brothers have protested being characterized as major supporters of the right-wing agenda—David Koch has complained that the “radical press” is intent on making him and his brother into “whipping boys”—Charles Lewis, the founder of the Center for Public Integrity, says: “The Kochs are on a whole different level. There’s no one else who has spent this much money. The sheer dimension of it is what sets them apart. They have a pattern of lawbreaking, political manipulation, and obfuscation. I’ve been in Washington since Watergate, and I’ve never seen anything like it. They are the Standard Oil of our times.” The Kochs have embraced the pure free-market ideology of economist Friedrich von Hayek, who argued that any form of centralized government would lead to totalitarianism and that only complete, unregulated capitalism could ensure freedom. Many “tea party” supporters, such as Fox News host Glenn Beck, have openly embraced von Hayek’s ideals.
Inculcated Ideals of Anti-Communist Father - Both brothers are steeped in the anti-Communist, anti-government, minority-disparaging views of their father, Koch Industries co-founder Fred Koch (see 1940 and After).
Using the 'Tea Parties' - Conservative economist Bruce Bartlett, who has worked at a Koch-funded think tank, says that the Kochs are playing on the anti-government fervor of the “tea parties” to further their pro-business, libertarian agenda. “The problem with the whole libertarian movement is that it’s been all chiefs and no Indians,” Bartlett says. “There haven’t been any actual people, like voters, who give a crap about it. So the problem for the Kochs has been trying to create a movement.” With the emergence of the “tea parties,” Bartlett says, “everyone suddenly sees that for the first time there are Indians out there—people who can provide real ideological power. [The Kochs are] trying to shape and control and channel the populist uprising into their own policies.” A Republican campaign consultant who has worked for the Kochs says of the tea party movement: “The Koch brothers gave the money that founded it. It’s like they put the seeds in the ground. Then the rainstorm comes, and the frogs come out of the mud—and they’re our candidates!” The consultant says that the Kochs keep an extremely low profile, in part to avoid accusations that they are funding an “astroturf” movement (see April 15, 2009). A former Koch adviser says: “They’re smart. This right-wing, redneck stuff works for them. They see this as a way to get things done without getting dirty themselves.” Democratic political strategist Rob Stein, who has studied the conservative movement’s finances, says the Kochs are “at the epicenter of the anti-Obama movement. But it’s not just about Obama. They would have done the same to Hillary Clinton. They did the same with Bill Clinton. They are out to destroy progressivism.” Since a 2009 rally attended by David Koch (see November 2009), the brothers have all but explicitly endorsed the tea party movement, with David Koch praising it for demonstrating the “powerful visceral hostility in the body politic against the massive increase in government power, the massive efforts to socialize this country.” Echoing the sentiments of many tea party leaders, Charles Koch said in a newsletter sent out to Koch Industry employees that President Obama is comparable to Venezuelan strongman Hugo Chavez.
Strategy - Charles Koch told a reporter that “[t]o bring about social change” requires “a strategy” that is “vertically and horizontally integrated,” spanning “from idea creation to policy development to education to grassroots organizations to lobbying to litigation to political action.… We have a radical philosophy.” The Kochs launched their first “think tank,” the libertarian Cato Institute, in 1977 (see 1977-Present), which has been effective in promoting corporate tax cuts, deregulation, cuts in social spending, and in opposing governmental initiatives to combat climate change. Other Koch-funded institutes such as the Heritage Foundation and the Independent Women’s Forum have also publicly opposed efforts to combat climate change. History professor Naomi Oreskes, the author of a book, Merchants of Doubt, that chronicles attempts by American industries to manipulate public opinion on science, says that the Kochs have a vested interest in keeping the government from addressing climate change. “If the answer is to phase out fossil fuels,” she says, “a different group of people are going to be making money, so we shouldn’t be surprised that they’re fighting tooth and nail.” David Koch has said that though he doesn’t believe that any global warming effects have been caused by human activities, if indeed the globe is warming, it will benefit society by lengthening growing seasons in the Northern Hemisphere. Several years after founding Cato, the Kochs provided millions in funding to the Mercatus Center at George Mason University in Arlington, Virginia, which Stein describes as “ground zero for deregulation policy in Washington.” Mercatus is headed by Richard Fink, a Koch Industries lobbyist and president of several Koch-funded foundations. Mayer describes Fink as the chief political lieutenant of the Koch brothers. Mercatus was quite successful at having the Bush administration adopt a number of its deregulatory strategies, particularly environmental deregulation. Like Cato, critics of Mercatus accuse it of serving the brothers’ corporate needs while hiding behind the facade of a nonpartisan academic organization. “Ideas don’t happen on their own,” says Matt Kibbe, the president of FreedomWorks, a tea party advocacy group heavily funded by the Kochs (see April 14, 2009). “Throughout history, ideas need patrons.” FreedomWorks is one of many citizen activism groups founded and/or funded by the Kochs, usually masquerading as “grassroots” organizations started by “ordinary citizens” (see 1984 and After, 1997, and Late 2004).
Disrupting the Obama Administration - Since well before the 2008 presidential election, the Koch brothers have been involved in full-throated efforts to derail any policies or initiatives that would be launched by a Democratic president. In January 2008, Charles Koch wrote in the industry newsletter that America was on the verge of “the greatest loss of liberty and prosperity since the 1930s.” The Kochs have used their “astroturf” advocacy group, Americans for Prosperity (AFP), to great effect against the Obama administration, launching its efforts even before the November 2008 election (see October 2008 and January 2009 and After). Conservative activist Grover Norquist says that AFP’s August 2009 anti-health care rallies were instrumental in undermining Obama’s policy initiatives. Norquist says the rallies “discouraged deal-makers,” Republicans who otherwise might have considered cooperating with Obama and Congressional Democrats, and affected corporate donors to Washington lobbyists, steering millions into the hands of Republican lobbyists. [New Yorker, 8/30/2010]

Entity Tags: Matt Kibbe, Koch Industries, Naomi Oreskes, Richard Fink, Obama administration, New Yorker, Rob Stein, Jane Mayer, Independent Women’s Forum, Mercatus Center, Heritage Foundation, Cato Institute, Center for Public Integrity, Bruce Bartlett, Americans for Prosperity, Barack Obama, Charles Koch, Hillary Clinton, David Koch, FreedomWorks, Friedrich von Hayek, Charles Lewis, Glenn Beck, Grover Norquist, Fred Koch

Timeline Tags: Domestic Propaganda

Research from the media analysis firm Borrell Associates and other sources shows that spending for the 2010 midterm elections will outstrip the record-breaking spending of the 2008 elections, which centered around a presidential contest. The controversial Citizens United Supreme Court decision (see January 21, 2010) has “opened the floodgates” for corporate money to be used in electioneering and advertising, much of that money going anonymously to political parties and operations. It is unprecedented for midterm elections to involve more spending than presidential-year elections. Kip Cassino, vice president of research at Borrell Associates, says the Citizens United decision is directly responsible for the massive upswing in spending. “Unlike a lot of industries in the United States right now, which are seeing some downturns, political spending is absolutely a growth industry,” Cassino says. Corporate money is behind the surge, accounting for what he says is at least a 10 percent jump in advertising. Evan Tracey, president of the Campaign Media Analysis Group, says: “The unwritten charter of these [anonymously funded political] groups is to really be disruptive and try to go in there and turn a race on its head—or put a candidate on the defense. And by that nature, most of those ads that they’re gonna run this fall are gonna be negative ads.” Labor unions account for some of the surge in spending, but most of it comes from corporate donors, from conservative organizations such as the US Chamber of Commerce (see September 20, 2010, September 30, 2010, and October 2010), Americans for Prosperity (AFP—see Late 2004, May 29, 2009, November 2009, and July 3-4, 2010), and American Crossroads, a nonprofit political group headed by former Bush political advisor Karl Rove (see September 20, 2010, February 21, 2012, Late March 2012, and Late May 2012). Senator Robert Menendez (D-NJ) says, “While each of our campaigns has the resources they need to be competitive, we now face shadow groups putting their thumbs on the scale with undisclosed, unlimited, and unregulated donations.” However, national groups are not all of the important players in the spending surge. Tracey says: “We have a lot of little individual state-type groups that are starting to show up in some of the bigger races. And I think they’re going to play a much larger role in the fall.” One group cited in the research is a Nevada-based group called Americans for New Leadership, which has targeted Senate Majority Leader Harry Reid (D-NV) for defeat in a barrage of advertisements aired recently throughout the state. The group says it has spent $300,000 in ads attacking Reid and is prepared to spend more, but has not disclosed from whom that money comes. Senate and House races are seeing more involvement by heavily-funded groups placing ads in local markets for Republican candidates, or attacking Democrats, particularly from AFP, which has already spent some $1.5 million on House races. Craig Holman of the watchdog group Public Citizen says: “In 2004 and 2006, literally 100 percent of the groups were fully complying with the disclosure laws. Today, most groups do not disclose where they’re getting their money from.” The New York Times reports, “The situation raises the possibility that a relatively small cadre of deep-pocketed donors, unknown to the general public, is shaping the battle for Congress in the early going.” Sheila Krumholz of the Center for Responsive Politics observes: “Corporate interests are buying the elections? Oh no, it’s much worse than that. We don’t know who’s buying the election.” [New York Times, 9/13/2010; National Public Radio, 9/16/2010; Think Progress, 9/17/2010]

Entity Tags: Evan Tracey, Americans for New Leadership, American Crossroads, Americans for Prosperity, Craig Holman, Robert Menendez, Borrell Associates, US Chamber of Commerce, Kip Cassino, Karl C. Rove, Sheila Krumholz, Harry Reid

Timeline Tags: Civil Liberties, 2010 Elections

The reclusive but highly influential Charles Koch, of the Koch brothers oil empire (see 1977-Present, 1979-1980, 1981-2010, 1984 and After, Late 2004, May 6, 2006, April 15, 2009, May 29, 2009, December 6, 2009, November 2009, July 3-4, 2010, August 28, 2010, and August 30, 2010), pens an 18-page memo inviting some 210 wealthy American corporate and political leaders to a meeting with him and his brother David at the exclusive Rancho Las Palmas resort in Rancho Mirage, California, in January 2011. The theme is how to “combat… the multitude of public policies that threaten to destroy America as we know it… it is up to us to combat what is now the greatest assault on American freedom and prosperity in our lifetimes.… We must stop—and reverse—this internal assault on our founding principles.” The meeting will help plan how to use the prospective Republican gains in the November 2010 elections to “foster a renewal of American free enterprise and prosperity.” The memo references a June 2010 meeting in Aspen, Colorado, where strategies to manipulate and influence the 2010 elections were codified (see June 26-28, 2010). “In response, participants committed to an unprecedented level of support,” Koch writes. He includes the program from the June 2010 meeting. [Think Progress, 8/23/2010; Koch, 9/24/2010 pdf file]

Entity Tags: Rancho Las Palmas, David Koch, Charles Koch

Timeline Tags: Civil Liberties

Fred Wertheimer of Democracy 21, an organization devoted to stricter campaign finance reform, writes an impassioned op-ed about the deleterious effects of unchecked corporate money pouring into elections as a result of the Citizens United decision (see January 21, 2010). Wertheimer is also angry about the success of recent Republican efforts to block passage of the DISCLOSE Act, which would have required some accountability for corporate and union donors (see July 26-27, 2010). Wertheimer begins by tracing how drastically the landscape of campaign finance has changed: In 2000, when Congress passed legislation restricting the ability of so-called “527” groups to affect federal elections, the laws passed with heavy bipartisan support (see 2000 - 2005 and June 30, 2000). Only six Republican senators, including current Senate Minority Leader Mitch McConnell (R-KY), voted against the legislation. Last week, when the Senate voted down the latest iteration of the DISCLOSE Act, McConnell led the Republican efforts against the bill, and all 38 GOP senators voted against it. (The latest version of the DISCLOSE Act failed to reach the Senate floor, as Democrats were unable to break a Republican filibuster against the bill.) Wertheimer writes, “Senate Republicans went from 89 percent support for campaign finance disclosure in 2000 to 100 percent opposition to campaign finance disclosure in 2010.” Wertheimer goes on to write: “Ten years after Congress passed campaign finance disclosure for 527 groups by overwhelming bipartisan votes, the campaign finance disclosure issue hasn’t changed nor has the national consensus in the country in favor of disclosure; the votes of Senate Republicans, however, have changed. In 2000, Senator McConnell was a lonely Senate Republican voice against campaign finance disclosure. In 2010, Senator McConnell had 38 Republican Senators voting in lockstep with him to block campaign finance disclosure and to deny citizens information they have a basic right to know.” [Huffington Post, 9/28/2010]

Entity Tags: Fred Wertheimer, Mitch McConnell, DISCLOSE Act of 2010

Timeline Tags: Civil Liberties

US-Bahrain Business Council logo.US-Bahrain Business Council logo. [Source: US-Bahrain Business Council]The US Chamber of Commerce (USCC), in a methodology made legal by the Citizens United Supreme Court decision (see January 21, 2010), uses foreign-generated funds to disseminate “attack ads” against Democrats running for office in the November midterm elections. The USCC has targeted, among others, Jack Conway (D-KY), Senator Barbara Boxer (D-CA), Governor Jerry Brown (G-CA), and Representatives Joe Sestak (D-PA) and Tom Perriello (D-VA). The USCC, a private trade association organized as a 501(c)(6) that can raise and spend unlimited funds without disclosing any of its donors, has promised to spend $75 million to prevent Democrats from winning in the upcoming elections. The USCC has, as of September 15, aired over 8,000 television ads supporting Republican candidates and attacking Democrats, according to information from the Wesleyan Media Project. The USCC has far outspent any other public or private group, including political parties. The funds for the USCC’s efforts come from its general account, which solicits foreign funding. Legal experts say that the USCC is likely skirting campaign finance law that prohibits monies from foreign corporations being spent in American elections. The USCC has been very active in recent years in raising funds from overseas sources, with such funds either going directly to the USCC or being funneled to the USCC through its foreign chapters, known as Business Councils or “AmChams.” Some of the largest donations come from the oil-rich country of Bahrain, generated by the USCC’s internal fundraising department in that nation called the “US-Bahrain Business Council” (USBBC). The USBBC is an office of the USCC and not a separate entity. The USBBC raises well over $100,000 a year from foreign businesses, funds shuttled directly to the USCC. A similar operation exists in India through the auspices of the USCC’s US-India Business Council (USIBC). The USIBC raises well over $200,000 a year for the USCC. Other such organizations exist in Egypt, Russia, China, Saudi Arabia, Brazil, and other countries, with those nations’ laws making it difficult or impossible for the public to learn how much money is being raised and by which foreign entities. Multinational firms such as BP, Shell Oil, and Siemens are also active members of the USCC, and contribute heavily to the organization. If those firms’ monies are going to fund political activities, the Citizens United decision makes it legal to keep that fact, and the amount of money being used to fund those political activities, entirely secret. It is known that the health insurer Aetna secretly donated $20 million to the USCC to try to defeat the Affordable Care Act (ACA) last year, and News Corporation, the parent of Fox News, donated $1 million to the USCC to use in political activities (see September 30, 2010). The USCC is a strong opponent of Democrats’ efforts to persuade American businesses to hire locally rather than outsourcing jobs to countries such as China and India, and has fought Democrats who oppose free trade deals that would significantly benefit foreign entities. The USCC claims that it “has a system in place” to prevent foreign funding for its “political activities,” but refuses to give any details. [Think Progress, 10/5/2010]

Entity Tags: Joe Sestak, British Petroleum, Barbara Boxer, Aetna, Jack Conway, US-India Business Council, Wesleyan Media Project, US Chamber of Commerce, News Corporation, Royal Dutch/Shell, US-Bahrain Business Council, Siemens, Thomas Perriello, Edmund Gerald (“Jerry”) Brown, Jr

Timeline Tags: Civil Liberties

American Future Fund logo.American Future Fund logo. [Source: American Future Fund / Talking Points Memo]Three citizen watchdog and pro-campaign finance groups, the Center for Media and Democracy, Protect Our Elections, and Public Citizen, allege that the tax-exempt nonprofit group American Future Fund (AFF) is violating tax law by operating primarily as a political advocacy group. AFF was founded and is operated by Nick Ryan, a former campaign advisor for former Senator Rick Santorum (R-PA) and former Representative Jim Nussle (R-IA), and the head of a political consulting firm, the Concordia Group. Ryan also founded a pro-Santorum “super PAC” called the Red, White and Blue Fund. State Senator Sandra Greiner (R-IA) and prominent Iowa Republican Allison Dorr Kleis serve as the organization’s directors. The group states that it advocates for “conservative and free market ideals.” The New York Times will later confirm that Bruce Rastetter, co-founder and CEO of Hawkeye Energy Holdings, a large ethanol company, provided the seed money for AFF in 2008. Investigations by the Center for Public Integrity will also show that the Pharmaceutical Research and Manufacturers of America (PhRMA) contributed $300,000 to the organization in 2010. The group also received $2.44 million from another 501(c)4 group, the American Justice Partnership, which advocates for “tort reform,” and over $11 million from the Center to Protect Patients’ Rights, another 501(c)(4) organization. The Times will find that AFF-supported candidates win 76 percent of the time, making the group “one of the most effective outside spending groups of the 2010 election cycle.” The law allows 501(c)4 groups (see 2000 - 2005) such as AFF to operate without taxation or legal scrutiny as long as they spend the bulk of their resources on “further[ing] the common good and general welfare of the people of the community” and not political advocacy. Moreover, federal election law provides that if a group’s major purpose is electioneering and it spends at least $1,000 to influence elections, it must register as a political action committee (PAC). A New York Times analysis recently showed that AFF spent 56 percent of its television budget on political advertising, and so far has spent $8.8 million on television ad buys. Its ads attack Democratic candidates in Indiana, Iowa, New Mexico, and West Virginia, and expressly tell voters to cast their ballots against these candidates. And the organization’s Web site says it exists to “target… liberal politicians.” The group says it plans to spend as much as $25 million on the 2010 elections. In a press release, Public Citizen says that AFF, “a conservative nonprofit group pouring money into the 2010 midterm elections, appears to be violating campaign finance law.” The three groups file a complaint with the Federal Election Commission (FEC) asking it to decide whether AFF has violated the tax code. If so, AFF would be forced to re-register as a PAC and be subjected to more disclosure requirements, particular who donates to the organization and how much they donate. Craig Holman of Public Citizen says: “American Future Fund is pulling out the stops to ensure that Republicans are elected this November. That imposes on the group the legal duty to register with the FEC and disclose exactly who is funding all those expenditures.” Protect Our Elections spokesperson Kevin Zeese says: “In this first post-Citizens United (see January 21, 2010) election, corporations and their executives are testing the limits of the law and crossing over into illegality. They cross the line when they use nonprofit groups to urge people to vote ‘for’ or ‘against’ a specific candidate. Political committees violate the law when they accept anonymous contributions for their work. These violations of federal election and tax laws need to be challenged now; otherwise we will see even more anonymous corporate donations trying to illegally manipulate voters into voting against their own interests in future elections.” And Lisa Graves of the Center for Media and Democracy says: “Groups spending millions to attack Americans running for office should not be able to use their tax-free status to hide the truth about which fat cats are behind their ads. Voters have a right to know which corporations or millionaires are laundering their profits through nonprofits like the American Future Fund, whose main business seems to be electioneering. We have joined this complaint to demand that the law be enforced and the truth be told.” [Center for Media and Democracy, Protect Our Elections, and Public Citizen, 10/12/2010 pdf file; Public Citizen, 10/20/2010; Mother Jones, 1/28/2011; iWatch News, 6/21/2012] AFF will continue to operate as a 501(c)4 group in spite of the FEC complaint, and will continue to spend heavily on anti-Democratic ads, many of which will be proven to be false by organizations such as FactCheck (.org). More complaints will be filed against the organization, including a February 2011 IRS complaint by Citizens for Responsibility and Ethics in Washington (CREW). [iWatch News, 6/21/2012]

Entity Tags: Center to Protect Patients’ Rights, Red, White and Blue Fund, Center for Public Integrity, Bruce Rastetter, American Justice Partnership, American Future Fund, Allison Dorr Kleis, Public Citizen, Protect Our Elections, Sandra Greiner, Nick Ryan, Federal Election Commission, Kevin Zeese, Craig Holman, Citizens for Responsibility and Ethics in Washington, Concordia Group, Center for Media and Democracy, Pharmaceutical Research and Manufacturers of America, New York Times, Lisa Graves

Timeline Tags: Civil Liberties

A conservative super PAC, American Action Network (AAN), launches a $19 million advertizing blitz against Democrats in 22 House districts. AAN was founded by former US Senator Norm Coleman (R-MN) and former Nixon administration official Fred Malek. AAN has already pumped $5 million into races featuring Republican Senate candidates. Founded in February, the group was formed, according to Malek, to “counter what the labor unions are doing on the Democratic side.” The group is split into two parts: the Action Forum, a 501(c)(3), which allows donations to be tax-deductible but limits political activities, and the Action Network, a 501 (c)(4), in which contributions are not deductible or disclosed but the group can advocate for political causes. AAN president Rob Collins says: “This Democrat-controlled Congress has already voted for higher taxes and promises next month to raise taxes on America’s families and businesses. This is simply unacceptable and something we wanted to call attention to.” AAN is part of a larger network of conservative super PACs (see March 26, 2010), including American Crossroads, that plans to spend as much as $50 million on Congressional races. AAN shares office space with American Crossroads. [Politico, 10/13/2010; New York Times, 10/17/2010; CT Mirror, 10/17/2010]
Objectionable Ads - The AAN ads airing in Connecticut draw fire after accusing Democrats Christopher Murray (D-CT) and Jim Himes (D-CT) of voting to provide free health care to illegal immigrants and Viagra to sex offenders. Murray accuses AAN of being linked to a number of Republicans in the Bush administration, and asks who is providing the money for the ads. Campaign finance law allows the donors to organizations such as AAN to remain anonymous. “This is one of the biggest TV buys this district has ever seen,” Murphy says. “And what we deserve to know is who is standing behind it. I want to know. I think that’s what the voters want as well.… These ads on TV right now, fronted by a shadowy, anonymous group of billionaire donors and multi-national corporations are a clear sign of what the difference is in this election.” An AAN spokesman refuses to discuss the finances behind the organization, saying only: “What we do is we comply with the letter of the law. That’s all we have to offer about that.” Murray calls the ad’s allegations “laughable.” Both claims have been debunked by independent fact-checking organizations, though Murray’s opponent Sam Caligiuri (R-CT) says the ad’s content is “verifiable,” and says even if the ad is questionable, Murray has told lies of his own about Caligiuri.
AAN Co-Founder Involved in Criminal Activities as Nixon Administration Official - CT Mirror notes that Malek, a Wall Street millionaire and the co-founder of AAN, was not only a member of the Nixon administration (whose crimes and excesses concerning the Watergate scandal led to a round of campaign finance reforms—see 1974 and May 11, 1976), but was also involved in a recent investment scandal. The New York Times goes further in its examination of Malek, noting that he was heavily involved in the 1972 “Townhouse operation” that raised illegal corporate cash in so-called “slush funds” and distributed the monies in key Senate races (see December 1, 1969, Early 1970, March 23, 1971, and August 18, 1974). Malek, the White House personnel chief in 1972, helped dispense illegal patronage deals to Nixon donors and served as deputy director of CREEP (the Committee to Re-Elect the President), an organization heavily involved in criminal activities. And the liberal news Web site Think Progress notes that Malek was the Nixon administration’s unofficial “Jew counter” (see July 3, 1971 and September 1971) and was part of the administration’s illegal persecution of Jews who worked in the federal government. During the Watergate investigation, Malek admitted that some of CREEP’s activities might have “bordered on the unethical.” Malek worked with American Crossroads co-founder Karl Rove during the Nixon administration, when Rove worked to re-elect Nixon as the executive director of the College Republican National Committee. Malek is a member of the Weaver Terrace Group, an informal amalgamation of Republican strategists from “independent” groups who regularly meet, trade political intelligence, and make joint fund-raising trips. The group is named after the street where Rove used to live. Former Watergate prosecutor Roger Witten says: “It creates all the appearances of dirty dealings and undue influence because our candidates are awash in funds the public is ignorant about. This is the problem that was supposedly addressed after Watergate.” [New York Times, 10/17/2010; Think Progress, 10/18/2010]

Entity Tags: Jim Himes, Christopher Murray, CT Mirror, American Crossroads, American Action Network, Fred Malek, Weaver Terrace Group, Sam Caligiuri, Committee to Re-elect the President, Think Progress (.org), Nixon administration, Rob Collins, Norm Coleman, Roger Witten, Karl C. Rove, New York Times

Timeline Tags: Civil Liberties

Campaign spending by outside “independent” organizations on Congressional races currently stands at $147.5 million, a 73 percent rise from two years ago, according to information from the nonpartisan Campaign Finance Institute (CFI). In mid-October 2008, Congressional election spending by outside groups was at $85.3 million. In 2006, that number was $32 million. The spending dramatically favors Republicans, with groups supporting GOP candidates spending $105.5 million and groups supporting Democrats spending $42 million. According to the press, the huge spike in spending is traceable to the Citizens United decision that allows corporations and labor unions to spend unlimited funds in campaign activities (see January 21, 2010). The CFI notes that the record-breaking spending “is before the traditionally heavy-spending final weeks of the campaign.” [McClatchy News, 10/18/2010]

Entity Tags: Campaign Finance Institute

Timeline Tags: Civil Liberties, 2010 Elections

George Pataki speaking at a Revere America event.George Pataki speaking at a Revere America event. [Source: New York Daily News]New York City’s public advocate, Bill de Blasio, is publicly challenging former Governor George E. Pataki for using anonymous contributions to affect elections. De Blasio has managed to persuade several Wall Street firms, including Citibank, Goldman Sachs, JP Morgan Chase, and Morgan Stanley, not to donate money towards political advertising. Now he is criticizing Pataki, who as governor supported disclosure of donors but now, as chair of the political advocacy group Revere America, is using anonymous donations to fund a $1 million advertising campaign against Democrats. In a letter to Pataki, de Blasio writes that it is hypocritical for Pataki to use such donations, saying that “opposing disclosure of your contributors completely contradicts your previous actions and positions as governor of the State of New York.” De Blasio tells a reporter: “I think it’s fair to say Pataki was one of the people doing meaningful work on campaign finance and getting a lot of respect for it. And now, a decade later, he’s in the vanguard of the exact opposite. It’s an extraordinary turnaround.” The letter is also signed by seven members of New York’s Congressional delegation, all Democrats. De Blasio has had no success in persuading any of 16 groups that have spent a combined total of $22 million on campaign advertisements to disclose their donors. Paul Ryan, a lawyer for the Campaign Legal Center, says, “I think it’s entirely appropriate to ask those who are running their organizations to disclose more information.” Pataki says he still believes in disclosure, but says efforts to “boycott, to intimidate, to picket” donors contributing to Revere America have persuaded him to keep their identities secret. Pataki claims not to know which individuals or corporations may be donating to his organization, and says his entire focus is on policy (Revere America opposes health care reform). He calls de Blasio’s letter an “off-putting” act of partisan politics, and mocks de Blasio as “the person who has a job with no responsibilities.” De Blasio’s office indeed has little real power, but de Blasio has used his position as a public official to become a vocal critic of campaign finance practices. He is currently calling on Internet giant Yahoo! to eschew campaign donations, a position the corporation is considering. Ryan notes that the pledges from firms like Yahoo! or Goldman Sachs mean little, as the firms could easily donate anonymously. De Blasio says his efforts are just one part of a much larger struggle. “To me this is the first battle in a long war,” he says. “Before January, in the way of limitations and disclosure, you were fighting a very tense and difficult battle in elections, but the worst you could see from corporate America was conventional weapons. Citizens United (see January 21, 2010) introduced nuclear weapons.” [New York Times, 10/27/2010]

Entity Tags: JP Morgan Chase, Bill de Blasio, Citibank, Goldman Sachs, Paul S. Ryan, George E. Pataki, Revere America, Yahoo!, Morgan Stanley

Timeline Tags: Civil Liberties

A group of Democratic donors, shaken from the defeat the party suffered in the November midterm elections, meets in a Washington hotel to discuss how to counter the huge influx of corporate spending that helped defeat dozens of Democrats and give control of the US House of Representatives back to Republicans. Outside conservative groups such as the US Chamber of Commerce, the American Action Network (see Mid-October 2010), and American Crossroads/Crossroads GPS outspent Democratic groups by more than a two to one ratio. The donors are split on whether to try to emulate their opponents by raising as much money as possible from wealthy corporations and donors, or continuing down their traditional path of funding their campaign efforts via labor unions and organizations such as the Sierra Club. If they decide to pursue corporate cash, some argue, they will be viewed as hypocrites in light of Democrats’ almost-uniform opposition to the 2010 Citizens United decision, which “opened the floodgates” for unlimited corporate and labor donations (see January 21, 2010). One of the fundamental problems, Democrats note, is that while unions are allowed to contribute unlimited funds just as corporations do, unions, which traditionally support Democrats, are far less wealthy than their corporate counterparts. And despite record-breaking fundraising by the Obama presidential campaign in 2008, most corporations donate to Republicans. The donors are not expected to come up with simple answers as they begin to strategize for 2012, where Republicans are expected to raise and spend an unprecedented half-billion dollars trying to defeat President Obama. Moreover, the White House has sent decidedly mixed messages on the subject. During the 2008 race, the Obama campaign instructed an independent progressive “527” PAC, the Fund for America, to shut down its operations after it began releasing attack ads against Obama’s opponent, Senator John McCain (R-AZ). The Obama campaign did not want independent organizations conducting their own operations, but wanted full control of the campaign message. And campaign leaders said they wanted to win with small individual contributions from ordinary citizens, not with massive corporate donations. The White House’s opposition to such outside funding continued through 2010, and as a result, corporate donations to Democratic-supporting groups were far outstripped by Republican donations. Since then, Obama’s top political advisor David Axelrod has indicated the White House would support liberal donors’ independent efforts to counter Republican political donations, but many Democratic donors still believe the Obama administration is not fully behind those efforts. A Democratic strategist who refuses to be identified says: “By and large, the political people in the Obama firmament really have disdain for outside groups. They think they whine and snivel and make all these demands and don’t produce very much.” Some liberal donors and organizations are ignoring the resistance from the White House and making their own plans, such as David Brock, the founder of Media Matters for America (MMFA), who is considering forming his own 527 (see 2000 - 2005) for 2012. Another Democratic activist, Joan Fitz-Gerald of the umbrella group America Votes, says Democrats cannot depend on the courts or Congress to rein in corporate spending, noting that Congressional Democrats failed to get the DISCLOSE Act, a campaign finance reform measure, to the floor of the Senate for a vote (see July 26-27, 2010). Fitz-Gerald says Democrats must adapt to the new political landscape or risk another trouncing in 2012. However, she recommends working through existing progressive organizations more than using hastily formed PACs and 527s funded by one or two wealthy sources. Unions and environmental groups have large, citizen-based funding sources, whereas Republican organizations are often funded by a small group of wealthy donors who bankroll numerous such organizations. Those organizations, she says, lack credibility with voters. The traditional grassroots-based organizations, she says, “are trusted messengers, whether they’re a union that someone belongs to or a group that people have been a member of for many years. At some point the American people, as they see these ads pushing this right-wing agenda, they’re going to ask: ‘Who are these people? What’s the goal of American Crossroads?’” But the funding garnered by the right made the difference in the 2010 elections, Democratic donors agree. Mike Palamuso of the League of Conservation Voters recalls, “For every $500,000 we spent, it felt like American Crossroads spent another $5 million.” Many agree with Democratic political strategist Harold Ickes, who says: “Is small money better? You bet. But we’re in a f_cking fight. And if you’re in a fistfight, then you’re in a fistfight, and you use all legal means available.” [Mother Jones, 11/15/2010]

Entity Tags: David Brock, American Action Network, America Votes, American Crossroads, David Axelrod, US House of Representatives, Sierra Club, Harold Ickes, Joan Fitz-Gerald, US Chamber of Commerce, American Crossroads GPS, Mike Palamuso, Obama administration

Timeline Tags: Civil Liberties

Democrats in Congress are contemplating using the Constitutional amendment process to overturn the controversial Citizens United ruling by the Supreme Court that allows unlimited corporate spending on elections (see January 21, 2010). A new poll from Public Polling Policy as commissioned by the Progressive Change Campaign Committee (PCCC) finds that a plurality of voters would support such an amendment. Forty-six percent of voters surveyed agreed that “Congress should consider drastic measures such as a Constitutional amendment overturning the recent Supreme Court decision allowing unlimited corporate spending in elections.” Thirty-six percent disagreed, and 18 percent had no opinion. Such an amendment would likely fail in Congress, as it would require a two-thirds majority in both chambers and then ratification by three-quarters of the states. Representative Donna Edwards (D-MD) wrote such an amendment, in draft form, the evening that the Citizens United decision was announced. Her proposed amendment reads: “The sovereign right of the people to govern being essential to a free democracy, Congress and the States may regulate the expenditure of funds for political speech by any corporation, limited liability company, or other corporate entity. Nothing contained in this Article shall be construed to abridge the freedom of the press.” She says that there have been times in American history that such amendments catch the public attention and move quickly into law. “The process is very rigorous, and it should be,” she says. “But there have been plenty of examples of amendments to the Constitution that have happened, actually, with fairly rapid-fire when they catch on.” She adds: “I really concluded that the Supreme Court actually put the challenge out to us, here in the Congress. They said, you know, you could make a judgment that this is not really good for the system, but the fact is that the Constitution doesn’t allow you to regulate this. Congress, you have no—the Court told us directly—Congress, you have no authority to regulate. And when the Court says that so directly, it only leaves us one choice.” Two prominent Senate Democrats, John Kerry (D-MA) and Max Baucus (D-MT), support the amendment. A Baucus spokesperson says, “Max is always willing to work with anyone toward the common goal of making sure Montanans’ voices don’t get drowned out by out-of-control corporate campaign donations.” PCCC co-founder Adam Green says: “It’s time to stop thinking small-bore. The solution to Citizens United is not merely disclosure, it’s to overturn Citizens United—and even last November’s Republican-skewed electorate agrees.” Edwards says that Democrats should embrace the concept that the Constitution is a political ground worth fighting on. “A lot of progressives are not accustomed to using the mechanisms of the Constitution,” she says. “The right has used—has tried to do that an awful lot of times on a whole range of different things in state legislatures and across the board. And as progressives, we’re not accustomed to doing that, and this is one instance, though, where the populist demand is there, and our energy and our policy has to match that demand and a Constitutional amendment does that.” [Huffington Post, 11/23/2010]

Entity Tags: John Kerry, Adam Green, Donna Edwards, Public Polling Policy, US Congress, US Supreme Court, Max Baucus

Timeline Tags: Civil Liberties

Tim Phillips (L) and David Koch, together at an Americans for Prosperity event.Tim Phillips (L) and David Koch, together at an Americans for Prosperity event. [Source: Americans for Prosperity]Oil billionaire and conservative activist David Koch (see 1977-Present, 1979-1980, 1997, 1981-2010, 1984 and After, Late 2004, May 6, 2006, April 15, 2009, November 2009, December 6, 2009, April 2010 and After, July 3-4, 2010, June 26-28, 2010, August 28, 2010, August 30, 2010, and September 24, 2010) attends the 112th Congress’s swearing-in ceremony, accompanied by Tim Phillips, the head of the Koch-financed Americans for Prosperity (AFP—see May 29, 2009) and a number of current and former Koch Industries lobbyists, including Nancy Pfotenhauer. The event marks the ascendance of Republicans to the majority of the House, and the selection of John Boehner (R-OH) as speaker of the House. After the ceremony, Koch asks Frank Guinta (R-NH), a freshman Republican and “tea party” member elected in part by lavish AFP spending on his behalf, if he will attend a party that Koch is throwing for Republican Congressional members. Guinta affirms that he will attend. Lee Fang, a reporter for Think Progress who observes the Koch-Guinta conversation, speaks to Koch after the two conclude their discussion. Fang identifies himself as a Think Progress reporter and asks Koch what he expects from the Boehner-led Congress; Koch replies, “Well, cut the hell out of spending, balance the budget, reduce regulations, and, uh, support business.” Phillips immediately intervenes, identifying Fang to Koch as “a good blogger on the left, we’re glad to have him—” but Fang continues interviewing Koch. During the relatively brief interview, Phillips repeatedly attempts to push Fang’s cameraman Scott Keyes away from Koch, and shouts into Keyes’s camera, in an apparent attempt to disrupt the interview. However, Koch is cooperative with being interviewed. Koch is apparently proud of the work being done by AFP and says, “We’re going to do more too in the next couple of years.” Fang asks Koch if he is proud of the tea party movement, and Koch replies: “Yeah. There are some extremists there, but the rank and file are just normal people like us. And I admire them. It’s probably the best grassroots uprising since 1776 in my opinion.” Koch is hesitant to answer questions about “climate change,” agreeing only that “[c]limate does fluctuate,” but refusing to answer questions about the effect of carbon pollution on the climate. Instead, he says that any attempts to regulate carbon emissions will “really damage the economy.” Fang concludes by asking about the Citizens United decision that allows unlimited corporate spending on elections (see January 21, 2010). According to Fang, Koch looks uncomfortable discussing the subject and is quite reticent. Koch refuses to answer when Fang asks him about a recent meeting he sponsored with former Fox News talk show host Glenn Beck “and several other conservatives” (see June 26-28, 2010). While Phillips continues to interrupt and chide Fang for asking about the Citizens United decision, Koch refuses to answer Fang’s question, “Could you tell the public what you discussed at that meeting?” [Think Progress, 1/5/2011; Think Progress, 1/6/2011; Think Progress, 1/7/2011; Think Progress, 1/10/2011]

Entity Tags: Koch Industries, David Koch, Americans for Prosperity, Frank Guinta, John Boehner, Scott Keyes, Glenn Beck, Tim Phillips, Nancy Pfotenhauer, Lee Fang

Timeline Tags: Civil Liberties

House Republicans rush a bill to the floor for a vote to eliminate all public funding of the presidential election. The bill, if passed by the Senate and signed into law by President Obama, would eliminate one of the few remaining public funding methodologies for federal elections, and, critics say, give wealthy corporate and individual donors even more influence over elections. Public financing of presidential elections was made law by the 1971 Federal Election Campaign Act (FECA—see February 7, 1972 and 1974) and upheld by the Supreme Court (see January 30, 1976). The bill comes to a vote almost exactly a year after the Supreme Court allowed corporations and labor unions to make unlimited donations to political organizations (see January 21, 2010). The bill, HR 359, was sponsored by Representative Tom Cole (R-OK) in June 2009 and cosponsored by 17 other House members, all Republicans. It would eliminate the Presidential Election Campaign Fund and the Presidential Primary Matching Payment Account. The Republican House leadership did not hold hearings on the bill, nor allow it to be debated in committee. Representative Chris Van Hollen (D-MD) calls the bill “a sneak attack on the system,” and notes that the Republicans had pledged to observe “transparency and openness,” but instead are pushing through such a transformative bill without allowing debate. The bill passes the House on a 239-160 vote, with the Republican majority overriding the Democratic minority. Ten Democrats vote for the bill and one Republican votes against it. Senate Minority Leader Mitch McConnell (R-KY) has already introduced his version of the bill in the Senate, though Senate Democrats say the bill has no chance of passing; Senate Majority Leader Harry Reid says through a spokesperson that the bill will never be brought up for a vote. [Mother Jones, 1/24/2011; Raw Story, 1/25/2011; CNN, 1/26/2011; National Public Radio, 1/27/2011; Bloomberg, 1/27/2011]
Repair or Eliminate? - Presidential candidates who accept public funding must agree not to accept private donations in the fall campaign. Every presidential candidate from 1976 to 2008 has accepted public funding. In 2000, George W. Bush (R-TX) did not take public financing for his primary campaign, and in subsequent years no presidential nominee has taken such funding. In 2008, Barack Obama (D-IL) declined to take public financing for his general election, the first presidential nominee to do so. Republicans claim the elimination of the public funding program would save the government between $520 and $617 million over the next 10 years. Meredith McGehee, policy director at the Campaign Legal Center, says the public financing system needs to be updated. It was created in 1976, she notes, and does not reflect the needs of 21st-century candidates. Lawmakers from both parties have attempted, without success to introduce legislation to update the system. McConnell says that Americans do not believe in the PECF, citing declining public participation. The program is funded by a $3 check-off on individual tax returns; in 1980, almost 29 percent of tax returns carried the check-off, while in 2007 only 8.3 percent of tax returns checked off the donation. “In a time of exploding deficits and record debt, the last thing the American people want right now is to provide what amounts to welfare for politicians,” McConnell says. House Democrats have introduced legislation that would modify and update the PECF instead of end it. One of that legislation’s sponsors, David Price (D-NC), says, “Dare we forget what Watergate was all about?” (Price is referring to the post-Watergate origins of the PECF.) “President Nixon’s Committee to Re-Elect the President, fueled by huge quantities of corporate cash, paid for criminal acts and otherwise subverted the American electoral system. Let’s not return to the darkest days of our democracy.” [Mother Jones, 1/24/2011; CNN, 1/26/2011; National Public Radio, 1/27/2011; Bloomberg, 1/27/2011]
Obama Administration Opposes Bill - The Obama administration strongly opposes the bill, saying that the public financing system should be improved rather than eliminated. In a statement, the White House says: “The presidential election public financing system was enacted in the aftermath of the Watergate scandal to free the nation’s elections from the influence of corporations and other wealthy special interests. Rather than candidates having to rely on raising large sums of private money in order to run, the system provides qualifying presidential candidates with the option of accepting matching funds in the primary and a public grant in the general election.… H.R. 359 would kill the system, not strengthen it. Its effect would be to expand the power of corporations and special interests in the nation’s elections; to force many candidates into an endless cycle of fundraising at the expense of engagement with voters on the issues; and to place a premium on access to large donor or special interest support, narrowing the field of otherwise worthy candidates.” [Raw Story, 1/25/2011]
Divided Response from Lawmakers - Representative Eric Cantor (R-VA) says after the bill passes that voting it into effect “should be a no-brainer.” House Minority Leader Nancy Pelosi (D-CA) says that Congress “should come together to ensure that the American people are heard, that they are heard and that they are not drowned out by special interest dollars.” Republicans such as Aaron Schock (R-IL) call Democrats and the Obama administration “hypocrites” because in 2008, Obama turned down public financing. Schock says, “It was President Obama who killed it and made a mockery of public financing of president campaigns with his arrogant pressing of self advantage.” David Price (D-NC) makes an angry rejoinder, saying: “Talk about having it both ways. [Schock] comes onto this floor to condemn President Obama for opting out of the system, and then he proposes to abolish the system so that everybody has to opt out.” Cole also condemns Obama for not taking public financing in 2008, and says he believes public financing of elections should be illegal, but goes on to say that he supports Republicans who take public financing because it is a legal option. Lynn Woolsey (D-CA) says: “Special interest money is having a corrosive effect on our democracy, eating away at the people’s confidence in their government and their elected representatives. The one beacon of light in this system is the public financing of presidential campaigns. It is, I would remind everyone, a voluntary system.” “This is an attempt to finish the job that the Supreme Court started with the Citizens United decision,” says Senator Charles Schumer (D-NY). Schumer chairs the Senate Rules Committee, which has jurisdiction over campaign finance legislation. “It would bust one of the last dams protecting our election system from an uncontrolled flood of special-interest money.” [CNN, 1/26/2011; National Public Radio, 1/27/2011; Bloomberg, 1/27/2011]
Campaign Finance Reform Advocates Critical of Bill - David Arkush of the citizens advocacy group Public Citizen says in a statement, “A vote for HR 359 is a great way to tell the American people that you want to give corporations more power over our government rather than make democracy work for ordinary Americans.” Craig Holman of Public Citizen says of the bill: “Make no mistake about it: The Republican leadership’s legislation to eliminate public financing is an attack not just on the presidential public financing system, but also an attack on congressional public financing proposals. To ensure that the public’s voice can be heard against the corporate onslaught, we need to expand public financing of elections, not kill it.” Campaign finance reform advocate Fred Wertheimer of Democracy 21 calls the bill “a gross abuse of the legislative process.” [Mother Jones, 1/24/2011; Raw Story, 1/25/2011] The nonpartisan Public Finance Action Fund, which advocates for public financing of state and federal elections, says in a statement: “These efforts are not about saving taxpayer money, they are about giving corporate donors even more access than they enjoy today. We hope these measures don’t advance any further.” [CNN, 1/26/2011]
Bill Dies in Senate - The bill will, as expected, not pass the Senate, which is under Democratic control. A similar bill will be introduced in December 2011 (see December 1, 2011), again pass the House, and die in the Senate. [Real Clear Politics, 12/1/2011]

Entity Tags: David E. Price, US Senate, US House of Representatives, Craig Holman, Aaron Schock, Barack Obama, Chris Van Hollen, David Arkush, Charles Schumer, Thomas Jeffery Cole, Public Finance Action Fund, US Supreme Court, Presidential Election Campaign Fund, Presidential Primary Matching Payment Account, Federal Election Campaign Act of 1972, Eric Cantor, Fred Wertheimer, George W. Bush, Harry Reid, Mitch McConnell, Lynn Woolsey, Obama administration, Meredith McGehee, Nancy Pelosi

Timeline Tags: Civil Liberties

The progressive magazine Mother Jones reports on Congressional Democrats’ plans to curb the effects of the Supreme Court’s Citizen United decision, which allows unlimited contributions to campaign organizations by corporate and union donors (see January 21, 2010). Last year, Senate Republicans refused to allow a campaign finance reform bill, the DISCLOSE Act, to come to the floor for a vote (see July 26-27, 2010). Now Democratic leaders say they are considering filing challenges to the nonprofit tax statuses of many of the groups that were so influential in the 2010 elections. Representative Chris Van Hollen (D-MD) tells a Mother Jones reporter about the plan. According to Van Hollen, two of the groups they plan to target are Karl Rove’s Crossroads GPS and the American Action Network (AAN—see Mid-October 2010), headed by former Senator Norm Coleman (R-MN). Together, the two groups spent over $43 million supporting conservative candidates and targeting Democrats, accounting for some 23 percent of all outside conservative spending between them. According to Van Hollen, “People are looking at different legal strategies through the courts because there’s emerging evidence that these groups have abused the rules.” Representative David Price (D-NC) agrees. “I think there are ample goals for challenging the way those groups have acted,” he says. Crossroads GPS spokesperson Jonathan Collegio says in return, “Van Hollen is irresponsibly making claims on zero evidence whatsoever and this is extremely irresponsible for an elected official holding high office.” No one from AAN is willing to respond to the Mother Jones reporting. Both Crossroads GPS and AAN, like many other such groups, are organized under the IRS’s 501(c)4 tax status—tax-exempt, not-for-profit groups whose purpose under the IRS code is “primarily to further the common good and general welfare of the people of the community” (see 2000 - 2005). The law allows such groups to engage in political advocacy, such as running ads for or against candidates, but such “electioneering” activities must not be those groups’ “primary activity.” As far as is known, Crossroads GPS and AAN have no other purpose except electioneering. 501(c) groups do not have to register as political action committees (PACs) and are allowed to conduct their business with very little outside scrutiny. However, if the Federal Election Commission or the IRS determine a group has violated the rules, that group would be forced to register as a PAC and disclose the sources of its funding. If the Democrats challenge the status of these groups, they would be following in the footsteps of private organizations. A coalition of public advocacy groups has filed complaints against Crossroads GPS and another 501(c)4 group, American Future Fund (AFF—see October 12, 2010), claiming that their primary functions are, according to the Crossroads GPS complaint, to “influence the 2010 federal elections and to elect Republicans to office.” The complaints are still pending. In September 2010, Senator Max Baucus (D-MT) asked the IRS to examine several 501(c) groups to “ensure that political campaign activity” wasn’t their primary activity (see September 28, 2010). [Mother Jones, 1/28/2011]

Entity Tags: David E. Price, American Crossroads GPS, American Action Network, American Future Fund, DISCLOSE Act of 2010, Max Baucus, Norm Coleman, Jonathan Collegio, Karl C. Rove, Chris Van Hollen, Mother Jones, US Congress

Timeline Tags: Civil Liberties

New York Times legal correspondent Adam Liptak observes what he calls a large weakness in the position that the Supreme Court should not have granted First Amendment rights to corporations in its 2010 Citizens United decision (see January 21, 2010). Liptak notes that Justice Anthony Kennedy cited more than 20 precedents affirming his argument that corporations are people under the First Amendment’s free-speech provision, and Justice John Paul Stevens recognized that body of precedents in his dissent. Liptak notes that regardless of the precedent, the provision still can be wrong. But, he notes, the weakness in the argument centers around the status of the news media as an amalgamation of “corporate persons,” writing, “If corporations have no First Amendment rights, what about newspapers and other news organizations, almost all of which are organized as corporations?” There is a general acceptance that “the press is different,” he notes, writing: “The First Amendment, after all, protects ‘the freedom of speech, or of the press.’ Since ‘the press’ is singled out for protection, the argument goes, media corporations enjoy First Amendment rights while other corporations do not.” Liptak calls this a weak argument. There is little evidence to show that the Founders intended “to single out a set of businesses for special protection” under the First Amendment, nor is there a lot of support for the Court’s current stance that the institutional press has rights that other speakers, specifically corporations, do not have. Moreover, he asks, who exactly is the press? Is it a corporate media firm or a person with a Twitter account? In initial arguments in the Citizens United case (see June 29, 2009), government lawyer Malcolm L. Stewart argued that Congress has the power to regulate “corporate speech” about political candidates, even going so far as to prohibit the publication of a book in the weeks before an election, an argument that did not sit well with most of the justices. (Liptak notes that in the second set of arguments, “[t]he government backed away from that position at the second argument, but not very far—see September 9, 2009). Stewart could have gone further in claiming “that media corporations, the institutional press, would have a greater First Amendment right,” as he said in his first argument, though he did not use that as his primary argument. Stevens seemed supportive of that argument in his dissent. Justice Antonin Scalia, in his concurrence, did not, writing: “It is passing strange to interpret the phrase ‘the freedom of speech, or of the press’ to mean, not everyone’s right to speak or publish, but rather everyone’s right to speak or the institutional press’s right to publish. No one thought that is what it meant.” Former Times columnist and Court reporter Anthony Lewis reached a similar conclusion in 2008, writing, “The amendment surely meant to cover both oral and written expression [rather than] a specially protected institution.” In the majority opinion, Kennedy wrote, “There is no precedent supporting laws that attempt to distinguish between corporations which are deemed to be exempt as media corporations and those which are not.” Law professor Eugene Volokh agreed, writing, “If ordinary business corporations lack First Amendment rights, so do those business corporations that we call media corporations.” Law professor Richard Hasen acknowledges that the correct treatment of media corporations in the issue of free speech and campaign finance is “among the most difficult questions for supporters of reasonable campaign finance reform.” Liptak concludes: “There are good arguments both ways about whether corporations ought to be covered by the First Amendment. But it is harder to say that some corporations have First Amendment rights and others do not.” [New York Times, 2/7/2011]

Entity Tags: John Paul Stevens, Anthony Kennedy, Adam Liptak, Anthony Lewis, Eugene Volokh, Malcolm Stewart, US Supreme Court, Antonin Scalia, New York Times, Richard L. Hasen

Timeline Tags: Civil Liberties

The government watchdog and campaign finance advocacy group Common Cause asks the Supreme Court to explain why Justice Clarence Thomas did not completely disclose the nature of his participation in a 2008 retreat hosted by Charles and David Koch, the influential oil billionaires and conservative advocates (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, and October 4, 2011). According to a Court spokesperson, Thomas made a “brief drop-by” at a four-day event in Palm Springs, California, held in January 2008, and gave a talk. But disclosure reports filed by Thomas show that he was reimbursed an undisclosed amount for four days of “transportation, meals, and accommodations” over the weekend of the retreat. The reimbursement came from the Federalist Society, an influential conservative legal group. Today Common Cause sends a letter to the Court asking for “further clarification” as to why the two statements are at odds. Common Cause official Arn Pearson says, “I don’t think the explanation they’ve given is credible.” If Thomas’s visit was a “four-day, all-expenses paid trip in sunny Palm Springs,” Thomas should have reported it as a gift under federal law. The Court, the Federalist Society, and Koch Industries all refuse to comment on the issue. Common Cause has said that because of Thomas’s past appearances at the Koch retreats, and the conservative political work done by his wife Virginia Thomas (see November 2009 - November 2010 and February 4, 2011), he should have recused himself from the 2010 Citizens United decision (see January 21, 2010). Common Cause notes that both Thomas and Justice Antonin Scalia have appeared at Koch-hosted retreats. Both Thomas and Scalia voted as part of the 5-4 majority that decided the case. Political analysts say the Koch brothers have been some of the main beneficiaries of the decision. [New York Times, 2/14/2011]

Entity Tags: David Koch, Antonin Scalia, Arn Pearson, Charles Koch, Federalist Society, US Supreme Court, Virginia (“Ginni”) Thomas, Common Cause, Clarence Thomas

Timeline Tags: Civil Liberties

A lawsuit by two anonymous plaintiffs is filed challenging the foreign-contribution provision of the campaign finance laws, a provision that was not overturned by the Citizens United Supreme Court decision (see January 21, 2010). The lawsuit is on behalf of a Canadian citizen who claims he wants to support President Obama’s 2012 re-election campaign, and a dual Israeli-Canadian citizen who wants to contribute to Obama’s opponent Mitt Romney and to the campaign of Senator Tom Coburn (R-OK). The Israeli-Canadian citizen says they want to help prevent what they call a “government-takeover of the health care system in the United States,” according to the suit. The filing says both plaintiffs are legally authorized to live and work in the United States, but are not permanent residents; one is a young attorney with a moderately successful practice and the other earns a modest salary as a medical resident at a New York hospital. The lawsuit asks that legal residents, as well as citizens and US-registered entities, be allowed to make donations. While the lawsuit appears to be bipartisan in nature, the lawyers representing the anonymous plaintiffs are from a top-flight law firm, Jones Day, which usually represents Republican and wealthy corporate clients. Think Progress’s Ian Millhiser notes that the firm’s clients “include some of the biggest corporate beneficiaries of the Citizens United decision—including Koch Industries and the US Chamber of Commerce.” The lawyers are Warren Postman and Yaakov Roth, both of whom are former Supreme Court clerks and thusly do not come cheap—in 2005, Jones Day charged as much as $370 an hour for services provided by lawyers with similar levels of experience. Millhiser writes: “To be clear, a court decision in favor of Jones Day’s clients would not necessarily allow BP or the Dubai Sovereign Wealth Fund to immediately start buying US elections. The lawsuit only asks the court to allow lawful residents make campaign contributions. Nevertheless, such a decision would be a significant crack in the wall protecting American democracy from foreign money. There are any number of foreign corporations who would love to see that happen.” [Politico, 3/18/2011; Think Progress, 3/18/2011] The court will deny the lawsuit (see August 8, 2011).

Entity Tags: Warren Postman, Ian Millhiser, Barack Obama, Jones Day, Willard Mitt Romney, Tom Coburn, Yaakov Roth, US Supreme Court

Timeline Tags: Civil Liberties

Law professor Richard Hasen writes that an Arizona case before the Supreme Court may add to the abilities of wealthy individual and corporate donors to influence elections. In the case of McComish v. Bennett, Arizona’s public campaign financing laws are being challenged. Public financing of campaigns (i.e. using tax dollars for campaigns) is entirely voluntary, but candidates who do opt into the system may not accept outside donations. Privately funded candidates face no such restrictions, but receive no public campaign funding. If a privately funded candidate spends significantly more on the campaign than his/her publicly funded opponent, Arizona’s law has a so-called “trigger” provision that provides matching funds, to a point, to make the spending somewhat more equitable. The case before the Court was brought on behalf of wealthy private donors, and is based on the complaint that the matching funds provision is a violation of their clients’ freedom of speech. Hasen predicts that the Court, with its conservative majority and its ruling in the Citizens United case (see January 21, 2010), will rule in favor of the wealthy plaintiffs and strike down some or all of the Arizona law. Arizona imposes no limits on the spending of outside groups, Hasen argues, and if the matching funds provision is triggered, he asks, “What’s the worst thing that can happen if a wealthy candidate spends gobs of cash running against a candidate who has opted into the public financing system?” He answers, “The publicly financed candidate gets more government dollars to campaign, and the voters hear more speech.” Hasen notes that several conservative legal experts have found that the “free speech” argument is specious. Conservative Ninth Circuit Judge Andrew Kleinfeld wrote against the argument in a previous ruling in the case, observing that in his view “there is no First Amendment right to make one’s opponent speak less, nor is there a First Amendment right to prohibit the government from subsidizing one’s opponent, especially when the same subsidy is available to the challenger if the challenger accepts the same terms as his opponent.” And Charles Fried, the solicitor general during the Reagan administration, filed an amicus brief in the case arguing that it is the wealthy candidates and interest groups who “in reality are seeking to restrict speech.” Hasen believes that the conservative majority will rule in favor of restricting the “speech” of publicly funded candidates in Arizona (and by extension in other states) because, as it ruled in a 2008 case, such financing laws were “an impermissible attempt to level the playing field between wealthy and non-wealthy candidates.” Hasen is blunt in his conclusion, stating, “Five conservative […] justices on the Supreme Court appear to have no problem with the wealthy using their resources to win elections—even if doing so raises the danger of increased corruption of the political system.” [Slate, 3/25/2011] Hasen is correct: the Court will rule 5-4 in the case, which will be renamed Arizona Free Enterprise Club’s Freedom PAC v. Bennett, that the matching funds provision is unconstitutional (see June 27, 2011).

Entity Tags: Charles Fried, Richard L. Hasen, US Supreme Court, Andrew Kleinfeld

Timeline Tags: Civil Liberties

Chris Van Hollen, in an undated appearance on Fox News.Chris Van Hollen, in an undated appearance on Fox News. [Source: Associated Press / Politico]Representative Chris Van Hollen (D-MD) and other prominent Democrats file a lawsuit against the Federal Election Commission (FEC) asking that entity to force the disclosure of political campaign donor information. In 2007, after a Supreme Court ruling (see June 25, 2007), the FEC drastically rewrote its disclosure requirements, creating what Van Hollen calls a “major loophole” that many 501(c)4 entities funded by corporate or labor union donations are using to operate “under a veil of anonymity.” Van Hollen and his colleagues say they want to force wealthy corporations and individuals to disclose who they are and how much they donate to political organizations. Currently, the Citizens United decision (see January 21, 2010) allows such donors to remain anonymous, and the organizations that receive their donations to conceal the amounts they are receiving. Van Hollen cites the 2002 Bipartisan Candidate Reform Act (BCRA—see March 27, 2002) as applying in this instance. In the brief he submits for the lawsuit, Van Hollen writes: “The US Chamber of Commerce, a Section 501(c) corporation, spent $32.9 million in electioneering communications in the 2010 Congressional elections, and disclosed none of its contributors; American Action Network (AAN—see Mid-October 2010), a Section 501(c) corporation, spent $20.4 million in electioneering communications in the 2010 Congressional elections, and disclosed none of its contributors; Americans for Job Security, a Section 501(c) corporation, spent $4.6 million in electioneering communication in the 2010 Congressional elections, and disclosed none of its contributors.” The lawsuit comes almost simultaneously with news that the White House is considering issuing an executive order that would require federal contractors to reveal their donations (see April 20, 2011). Democrats admit that even as they push the lawsuit forward, and President Obama publicly criticizes the practice of secret donations, they, too, are raising undisclosed donations for the various 2012 campaigns. Experts note that in most cases, Democrats’ efforts to raise undisclosed donations are far smaller than efforts by Republicans, and the amounts they are receiving are, so far, much smaller. Fred Wertheimer of Democracy 21, who is leading Van Hollen’s legal team, acknowledges that the lawsuit will not alter campaign finance policy before the 2012 elections, though he says it is possible that the lawsuit could receive a favorable decision and force disclosure while appeals are pending.
Similarities to DISCLOSE Act - Both the lawsuit and the executive order are similar to sections of the DISCLOSE Act, a legislative package drafted by Van Hollen and other Congressional Democrats that was blocked by Senate Republicans from coming to a vote (see July 26-27, 2010). USCOC spokesperson Blair Latoff says the lawsuit and the order comprise a “desperate attempt by the White House and House Democrats to resurrect the corpse of the DISCLOSE Act.” (Law professor Steven D. Schwinn will refute Latoff’s accusation, writing that Van Hollen’s lawsuit in no way seeks to force the DISCLOSE Act into law via the courts.) Like the failed legislation, the lawsuit and the proposed executive order would work to curtail the effects of the Supreme Court’s controversial Citizens United decision, which allows virtually unlimited and anonymous political spending by corporations and other entities. The lawsuit argues that the concealment of donor identities contradicts both the law and the Court’s ruling, citing the following language in the majority ruling: “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.”
Seeks Change in FEC Regulations - The lawsuit specifically challenges an FEC regulation adopted in 2007 that contravened language in the 2002 Bipartisan Campaign Reform Act (see March 27, 2002) that required disclosure of donations of $1,000 or more if the donations were made for the purpose of furthering “electioneering communications.” Another petition filed by Van Hollen’s group asks the FEC to revise a regulation that “improperly allowed nonprofit groups to keep secret the donors” whose funds were being used to pay for so-called independent expenditures in federal elections. [van Hollen, 4/21/2011 pdf file; Los Angeles Times, 4/21/2011; New York Times, 4/21/2011; Steven D. Schwinn, 4/25/2011; Think Progress, 4/27/2011]
'Sign of Weakness' - Bradley A. Smith, a former FEC commissioner and the head of the Center for Competitive Politics, a conservative advocacy group, says of the lawsuit: “This is a sign of weakness by a group that’s afraid they’re going to lose, and lose big. Again and again, you see evidence that their real purpose is to try to shut down their political opposition.” Smith and other conservatives say Democrats want to “chill” free speech. [New York Times, 4/21/2011]
FEC Will Refuse to Consider Accompanying Petition - In December 2011, the FEC will refuse to consider an accompanying petition on a 3-3 vote. [Commission, 12/16/2011; Commission, 12/16/2011] The vote is along partisan lines, with the three Democrats on the commission voting to consider the petition and the three Republicans voting against. The law prohibits the FEC from having a majority of commissioners from either party. [Think Progress, 1/21/2012]
Judge Will Rule in Favor of Plaintiff - In March 2012, a district judge will rule in favor of Van Hollen in the lawsuit (see March 30, 2012).

Entity Tags: Bipartisan Campaign Reform Act of 2002, Americans for Job Security, Barack Obama, American Action Network, Blair Latoff, Bradley A. (“Brad”) Smith, Steven D. Schwinn, US Chamber of Commerce, DISCLOSE Act of 2010, Chris Van Hollen, Fred Wertheimer, Federal Election Commission

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 Center for Responsive Politics (CRP), a nonpartisan campaign finance watchdog organization, finds that independent organizations supporting Republicans and Democrats are spending unprecedented amounts of money on supporting, or more often attacking, candidates for office. The huge rise in spending comes as a direct result of the Citizens United decision that allowed corporations and labor unions to spend unlimited amounts of money on campaign donations (see January 21, 2010). While organizations are spending huge amounts of money on both sides of the political divide, spending for conservative candidates outweighs spending on liberal candidates by an 8-1 margin. CRP’s analysis finds that the increased spending helped Republicans retake the US House of Representatives in 2010, and is having a long-term effect on the nation’s campaign and election systems. [Center for Responsive Politics, 5/5/2011; Think Progress, 5/6/2011]
Most Democratic Spending Comes from Unions - Labor unions gave over $17.3 million in independent expenditures opposing Republican candidates. The union contributing the most: the American Federation of State County and Municipal Employees (AFSCME), with over $7 million. The National Education Association (NEA) formed a “super PAC” (see March 26, 2010) that spent $3.3 million on election activities. Super PACs must disclose their donors and the amounts donated (see 2000 - 2005), but an array of groups under the 501(c) tax laws do not have to disclose that information (see September 28, 2010).
Corporations Spend Lavishly for Republicans - While corporations donated some money to Democratic causes, most of their money went to Republicans. Corporations gave over $15 million to super PACs such as American Crossroads, which supports an array of conservative candidates. CRP notes that conservative groups that do not have to disclose their donors spent $121 million, and corporations and wealthy individuals were the likely sources of almost all of that money.
Secret Donations on the Rise - In the 2006 elections, the percentage of spending from groups that do not disclose their donors was 1 percent. In 2010, it was 47 percent. “Nonprofit” organizations that can legally hide their donors and donations increased their spending from zero percent in 2006 to 42 percent in 2010. For the first time in over 20 years, outside interest groups outspent party committees, by $105 million. The amount of independent expenditure and electioneering communication spending by outside groups has gone up 400 percent since 2006. And 72 percent of political advertising spending by outside groups in 2010 came from sources that were prohibited from spending money in 2006. [Center for Responsive Politics, 5/5/2011]

Entity Tags: American Crossroads, American Federation of State County and Municipal Employees, US House of Representatives, National Education Association, Center for Responsive Politics

Timeline Tags: Civil Liberties

Lawyer James Bopp Jr. forms a super PAC, Republican Super PAC Inc., in order to make unlimited financial contributions towards “independent” expenditures in support of Republican candidates in the November 2012 elections. Bopp is joined by Roger Villere, the chairman of the Louisiana Republican Party. Bopp is known for arguing high-profile cases against abortion rights (see November 1980 and After and Mid-2004 and After) and campaign finance regulations (see December 10, 2003 and Mid-2004 and After). He was the lawyer who first worked with the lobbying and advocacy group Citizens United, whose lawsuit gave the Supreme Court the opportunity to greatly deregulate campaign finance law (see January 10-16, 2008, March 24, 2008, and January 21, 2010). According to an email from Bopp and Villere, the Republican Super PAC will coordinate with other independent groups “to bridge gaps in the independent campaigns supporting Republican candidates.… The best way to neutralize President Obama’s unprecedented $1 billion political war chest and the political spending by labor unions and wealthy Democrats is to build a super fund-raising infrastructure for independent expenditure spending.” [New York Times, 5/16/2011] The majority of the money raised and spent on behalf of candidates by super PACs has gone to support Republicans, and not President Obama or Democratic candidates (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), and May 5, 2011).

Entity Tags: Roger Villere, James Bopp, Jr, US Supreme Court, Republican Super PAC Inc, Barack Obama

Timeline Tags: Civil Liberties

US District Judge James Cacheris throws out one count of the indictment against two men accused of illegally reimbursing donors to Democratic Senator Hillary Clinton’s Senate and presidential campaigns. In the ruling, Cacheris holds that the campaign finance law banning corporations from making contributions to federal candidates is unconstitutional. Cacheris rules that under the 2010 Citizens United Supreme Court ruling (see January 21, 2010), corporations have the same right as people to contribute to campaigns. No one has attempted to extend the Citizens United ruling to apply directly to campaign contributions by corporations. Previously, the law has been interpreted to apply only to independent corporate expenditures. In his ruling, Cacheris notes that only one other court has addressed the issue, with a Minnesota federal judge ruling that a state ban on corporate contributions is legal. Cacheris writes: “[F]or better or worse, Citizens United held that there is no distinction between an individual and a corporation with respect to political speech. Thus, if an individual can make direct contributions within [the law’s] limits, a corporation cannot be banned from doing the same thing.… That logic is inescapable here.” In court filings, prosecutors defending campaign finance law in the Virginia case said that overturning the ban on corporate contributions would ignore a century of legal precedent. Prosecutor Mark Lytle wrote: “Defendants would have the court throw out a century of jurisprudence upholding the ban on corporate political contributions, by equating expenditures—which the Court struck down in Citizens United—with contributions. This is, however, equating apples and oranges.” The case, United States v. Danielczyk, concerns accusations that William P. Danielczyk Jr. and Eugene R. Biagi helped funnel a corporate contribution to Clinton’s presidential campaign. The two men allegedly reimbursed $30,200 to eight contributors who gave to Clinton’s 2006 Senate campaign, and reimbursed $156,400 to 35 contributors to her 2008 presidential campaign. Clinton is not named as a defendant in the case. [Associated Press, 5/27/2011; New York Times, 5/27/2011]
Strongly Mixed Reactions - Biaigi’s lawyer Todd Richman says after the ruling: “Corporate political speech can now be regulated, only to the same extent as the speech of individuals or other speakers. That is because Citizens United establishes that there can be no distinction between corporate and other speakers in the regulation of political speech.” Sean Parnell of the Center for Competitive Politics, a group opposing campaign-finance regulations, says, “This was definitely something that is almost incidental in terms of the case it was decided in.” Fred Wertheimer of Democracy 21, a group supporting stricter campaign finance laws, says Cacheris went beyond his purview as a federal judge and ignored laws and Supreme Court rulings before the Citizens United decision that were not impacted (see February 7, 1972, April 26, 1978, and March 27, 2002). Had the Supreme Court wanted to overturn the ban on direct corporate campaign contributions, Wertheimer says, it could have done so in the Citizens United decision. Wertheimer says Cacheris’s ruling should be appealed and overturned. Law professor Daniel Ortiz says the ruling “pushes the outer limits of the Citizens United logic,” and will probably be overturned in a higher court. The Citizens United case differentiates between independent expenditures by corporations that are not coordinating with a candidate’s campaign, and direct campaign contributions. [Associated Press, 5/27/2011; New York Times, 5/27/2011] Ian Millhiser of the liberal news Web site Think Progress writes: “If today’s decision is upheld on appeal, it could be the end of any meaningful restrictions on campaign finance—including limits on the amount of money wealthy individuals and corporations can give to a candidate. In most states, all that is necessary to form a new corporation is to file the right paperwork in the appropriate government office. Moreover, nothing prevents one corporation from owning another corporation. Thus, under Cacheris’s decision, a cap on overall contributions becomes meaningless, because corporate donors can simply create a series of shell corporations for the purpose of evading such caps.” [Think Progress, 5/27/2011] Conservative legal scholar Eugene Volokh writes on his blog that he believes the Cacheris decision is in error. He believes the ban on corporate contributions to be legal and appropriate, though unlike Millhiser, he also supports the Citizens United decision. He cites the Supreme Court’s Buckley v. Valeo decision (see January 30, 1976) as limiting the means by which corporations can donate to political campaigns. He echoes Millhiser’s concerns about “shell corporations,” writing: “[T]he problem with corporate contributions is that they provide an avenue for evading individual contribution limits; if I want to donate $25,000 to a candidate instead of the $2,500 limit, I could set up nine corporations, and then donate myself and also have those corporations make similar donations. Few people would do that, but some people who want to be big political players might. Nor can this easily be dismissed as a supposed ‘sham’ and be thus distinguished from ‘legitimate’ corporate contributions.” The ban on direct corporate contributions does not stop individuals from donating directly to campaigns, Volokh writes, and thusly does not encroach on freedom of speech. [Eugene Volokh, 5/27/2011] Law professor Richard Hasen also believes the decision will be overturned or reconsidered, citing the Supreme Court’s ban on direct corporate spending in Federal Election Commission v. Beaumont (see June 16, 2003), a ruling that other courts have held was not overturned by the Citizens United decision. Neither the prosecution nor the defense referred to the Beaumont decision in their arguments. [Rick Hasen, 5/31/2011] “If this case stood, it would mean the end of campaign contribution limits for everyone, because it would be so easy to get around the law through a straw or sham corporation,” Hasen says. [New York Times, 5/27/2011]
Reconsideration - Four days later, Cacheris will ask for briefs from both sides in the case about the issues raised in his decision, indicating that he may well find that the Beaumont decision means that the ban on direct corporate contributions will remain in effect. [Rick Hasen, 5/31/2011] Cacheris will not reconsider his decision. [New York Times, 6/7/2011; Think Progress, 6/8/2011]
Appeals Court Overturns Decision - A day after Cacheris refuses to reconsider his decision, an appeals court will overrule his decision. [Think Progress, 6/9/2011; United States Court Of Appeals for the Ninth Circuit, 6/9/2011 pdf file] In June 2012, a federal appeals court will find that the Citizens United ban does not apply to direct corporate contributions. Appellate Judge Royce Gregory will write, “Leaping to this conclusion ignores the well-established principle that independent expenditures and direct contributions are subject to different government interests.” [Thomson Reuters, 6/28/2012]

Entity Tags: Eugene R. Biagi, Eugene Volokh, Fred Wertheimer, Daniel Ortiz, William P. Danielczyk, Jr, Ian Millhiser, Sean Parnell, James Cacheris, Todd Richman, Richard L. Hasen, Mark Lytle, Royce Gregory, Hillary Clinton

Timeline Tags: Civil Liberties

A new “super PAC” aligned with presidential candidate Mitt Romney (R-MA) is being formed by a group of Romney backers and former Romney campaign aides, according to a report by the Washington Post. Super PACs are political organizations that exist to influence elections, which take unlimited amounts of outside money from donors, including individuals, unions, and corporations, and pool that money to advocate for or against a candidate (see March 26, 2010). By law, super PACs are supposed to operate independently of a candidate’s official campaign organization.
Restore Our Future - The Romney super PAC, “Restore Our Future” (ROF), is one of a number of such organizations created in the aftermath of the US Supreme Court’s Citizens United ruling (see January 21, 2010). Restore Our Future is apparently the first super PAC to form specifically in support of one of the 2012 presidential contenders, with the sole exception of Priorities USA Action, a super PAC in support of President Obama. ROF treasurer Charles R. Spies, who served as Romney’s general counsel in his 2008 presidential effort, refuses to disclose how much the organization has raised, or who is donating. Spies merely says: “This is an independent effort focused on getting Romney elected president. We will do that by focusing on jobs and his ability to fix the economy.” A Romney campaign aide says that a Federal Election Commission (FEC) filing coming up in July will show the organization having raised some $20 million. A major Romney donor who refuses to allow his identity to be revealed says, “We just want to show that we’ve got more dough than anyone.” The Romney campaign’s communication director, Gail Gitcho, says the campaign welcomes any outside support, and points to the Obama campaign as the largest fundraiser in the race, saying, “We are pleased that independent groups will be active in fighting this entrenched power [the Obama campaign] so the country can get back to work.”
Leaders of ROF - Members of the ROF board of directors include Spies; Carl Forti, political director for Romney’s 2008 campaign; and Larry McCarthy, a member of the Romney media team in 2008. Forti is the co-founder of the Black Rock Group consulting firm and the political director of American Crossroads, a conservative super PAC expected to raise over $120 million for candidates in 2012. Neither Forti nor American Crossroads will discuss the role played by Forti in both organizations. ROF actually registered itself with the FEC in October 2010, but has remained unaffiliated and essentially dormant until recent weeks. Now ROF officials are briefing top donors about the organization’s plans and fundraising goals. Former Obama spokesman Bill Burton, the head of Priorities USA Action, says: “I’m not surprised that there’s even more money coming into this race to help Mitt Romney. He’s a pretty deeply flawed candidate; he’s going to need all the help he can get.” Dave Levinthal of the Center for Responsive Politics says of the super PACs: “The outside groups are akin to the biggest booster club you can imagine for a college football team. The club can’t give cars or gifts to the players, but they can do everything else possible to support them.… It’s a brand-new way to play politics.” [Washington Post, 6/23/2011] The Post fails to note many of the details about ROF’s senior officials. According to the Public Campaign Action Fund, Spies is not only a lawyer and a consultant, but a registered lobbyist for Clark Hill PLC, representing a chain of luxury casinos. ROF’s address as listed on its FEC filings is the same as Clark Hill’s Washington, DC, office. The Action Fund observes, referring to the Republican primary and the number of wealthy donors lined up behind each major candidate, “While [ROF] officially can’t coordinate with the Romney campaign, having lobbyists on your side is definitely a good way to boost one’s standing in the so-called ‘wealth primary.’” [Public Campaign Action Fund, 6/23/2011] The liberal news Web site Think Progress will soon note that McCarthy is a veteran advertising creator for Republican candidates, and was one of the strongest creative forces behind the infamous 1988 “Willie Horton” ad, which many considered to be extraordinarily racist (see September 21 - October 4, 1988). In 2010, McCarthy served as a media strategist for the American Future Fund, which launched attack ads attempting to link Democrats to the Park 51 community center in Manhattan, deemed by conservatives as the “Ground Zero Victory Mosque” and mischaracterized as a monument celebrating the 9/11 attacks. Those ads were decried by many as being bigoted against Muslims. McCarthy has brushed off criticism of his ads, and said the fact-checking organizations that found his ads to be flawed suffered from a pro-Democratic bias. Think Progress reporter Lee Fang will write that when he tried to find the American Future Fund office in Iowa, the address listed for the group turned out to be a UPS mailbox in a strip mall near an airport. Fang will write, “With a record of such secrecy and racist, anything-goes campaign tactics, one can expect Romney’s new outside group to be just as ugly in the presidential race.” [Politico, 10/29/2010; Think Progress, 6/27/2011]

Entity Tags: Charles R. Spies, Washington Post, Willard Mitt Romney, Carl Forti, American Future Fund, American Crossroads, 2012 Obama presidential election campaign, US Supreme Court, Bill Burton, Think Progress (.org), Public Campaign Action Fund, Larry McCarthy, Gail Gitcho, Federal Election Commission, Dave Levinthal, Lee Fang, Restore Our Future, Priorities USA Action, Mitt Romney presidential campaign (2012)

Timeline Tags: Civil Liberties, 2012 Elections

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

A mysterious company that donated $1 million to a political action committee (PAC) favoring presidential candidate Mitt Romney (R-MA) dissolves just months after its formation, leading some to speculate that its only purpose was to make political donations. The company, W Spann LLC, was formed on March 15, 2011 by Boston lawyer Cameron Casey, who specializes in estate tax planning—“wealth transfer strategies”—for “high net worth individuals,” according to corporate records and the lawyer’s biography on her firm’s Web site. Casey filed a “certificate of formation” with the Delaware Secretary of State’s office, but provided no information about the firm. The only address listed was that of a Wilmington, Delaware, registered agent service, Corporation Service Company, which provides such services for many companies. That firm refuses to discuss its clients. Spann’s address was listed as 590 Madison Avenue, New York City, a midtown Manhattan office building, but the building’s management firm, Minskoff Equities, shows no records of any such tenant. On April 28, W Spann LLC donated $1 million to Restore Our Future, a “super PAC” (see 2000 - 2005 and June 30, 2000) aligned with the Romney campaign (see June 23, 2011). Casey dissolves the company today, two weeks before Restore Our Future makes its first campaign filing of the year reporting the donation, by filing a “certificate of cancellation.” Lawrence Noble, the former general counsel of the Federal Election Commission (FEC), says, “I don’t see how you can do this,” when asked about the donation. If the only purpose of Spann’s formation was to contribute to the pro-Romney group, “There is a real issue of it being just a subterfuge” and that could raise a “serious” legal issue, Noble says. At least, “[w]hat you have here is a roadmap for how people can hide their identities” when making political contributions. Casey will refuse to discuss the matter with the press, and her employer, the law firm Ropes & Gray, will say through a spokesman that it cannot comment. (Ropes & Gray has as a longtime client Bain Capital, the firm formerly headed by Romney. The law firm has its offices at 590 Madison.) Restore Our Future campaign treasurer Charles Spies, a former Romney campaign official, will also refuse to answer questions about Spann. He will say, “Restore Our Future has fully complied with, and will continue to comply with, all FEC disclosure requirements.” A Romney campaign official will later add, “Mitt Romney follows both the letter of the law and the spirit of the law in all circumstances.” Bain Capital spokesperson Alex Stanton says of W Spann: “Bain Capital has many employees who actively participate in civic affairs, and they individually support candidates from both parties. The firm takes no position on any candidate, and the entity in question is not affiliated with Bain Capital or any of our employees.” Critics say the Spann story shows how easily disclosure requirements are being avoided in the aftermath of the Citizens United decision (see January 21, 2010). “This is sham disclosure. It’s a barrier to disclosure,” says Michael Malbin of the Campaign Finance Institute. It is another example of how American political campaigns have gone “back to the future” and to the “pre-Watergate days” (of 1972) when Richard Nixon was raising unlimited amounts of money without disclosure, Malbin says. [MSNBC, 8/4/2011]

Entity Tags: Lawrence M. Noble, Bain Capital, Alex Stanton, Cameron Casey, Corporation Service Company, Restore Our Future, W Spann LLC, Michael Malbin, Minskoff Equities, Charles R. Spies, Ropes & Gray, Willard Mitt Romney

Timeline Tags: Civil Liberties, 2012 Elections

On a 259-169 vote, the US House of Representatives passes an amendment that would “prohibit the use of funds to implement any rule, regulation, or executive order regarding the disclosure of political contributions.” The amendment to an unrelated bill was introduced by Representative Rodney Frelinghuysen (R-NJ) on June 24, 2011. The amendment is aimed at preventing the Obama administration from implementing any policy or executive order that would force disclosure on the anonymous corporate donors that have spent tens of millions of dollars influencing elections since the Citizens United ruling (see January 21, 2010). Eighteen Democrats join almost every Republican in voting for the amendment. Ian Millhiser of the liberal news Web site Think Progress speculates that many of those voting for the amendment were influenced by a huge corporate public relations and lobbying effort against campaign finance. After the media revealed that the Obama administration was considering issuing an executive order that would force government contractors to disclose their campaign donations (see April 20, 2011 and May 26, 2011), as Millhiser writes, “industry groups responded by ginning up paranoid fantasies claiming that the administration would use these disclosures to create a ‘pay to play’ scenario where only contractors who donate to Democratic causes could receive contracts.” Recent history, however, indicates that mandated disclosure would bring about the opposite effect, Millhiser writes. He recalls the 2008 resignation of Housing and Urban Development Secretary Alphonso Jackson, who was implicated in a huge scandal involving his office’s illegal contracting practices, wherein President Bush’s political opponents were denied government contracts while “personal cronies” were awarded contracts. “Had a disclosure rule been in effect,” Millhiser writes, “it would have been possible to compare the donation patterns of all government contractors against who was awarding them contracts, and systematically uncover examples of political corruption. Transparency is the enemy of corruption—not the means to implement it.” [Washington Post, 5/15/2011; US House of Representatives, 7/15/2011; Think Progress, 7/18/2011]

Entity Tags: US House of Representatives, Ian Millhiser, Obama administration, Rodney Frelinghuysen

Timeline Tags: Civil Liberties

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