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Context of 'April 21, 2011 and After: Democrats File Lawsuit Asking FEC to Require Disclosure of Donor Identities'

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

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

Timeline Tags: Civil Liberties

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

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

Senate Democrats are unable to break a filibuster by Senate Republicans that is blocking passage of the DISCLOSE Act.
Act Would Mandate Disclosure of Donors - The DISCLOSE Act—formally the Democracy Is Strengthened by Casting Light On Spending in Elections (DISCLOSE) Act—would overturn many elements of 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). If passed, it would have created new campaign finance disclosure requirements and made public the names of “super PAC” contributors (see March 26, 2010). Individuals, corporations, labor unions, and tax-exempt charitable organizations would, under the act, report to the Federal Election Commission (FEC) each time they spend $10,000 or more on campaign-related expenditures. Additionally, all outside groups, including “super PACs,” would have to report the names of donors. Moreover, the legislation would provide for so-called “Stand By Your Ad” requirements mandating that super PACs and other outside campaign groups producing political advertisements disclose the top funders in the ad. The CEO or highest-ranking official of an organization would, under the act, have to appear in the ad and officially “approve” the message. [Open Congress, 6/29/2010; OMB Watch, 7/24/2012]
Unbreakable Filibuster - Even public support from President Obama fails to sway enough Republican senators to vote against the filibuster, as did changes made to the bill by sponsor Charles Schumer (D-NY) designed to assuage some of Republicans’ concerns about the bill. The bill has already passed the House, shepherded through under Democratic leadership against Republican opposition. Democrats have a slim majority in the Senate also, but Senate rules allow the minority to mount filibusters that require 60 votes to overcome, and a number of Republicans would need to break from the Republican pack to vote down the filibuster. Additionally, some conservative senators such as Ben Nelson (D-NE) have not publicly stated their support for the bill. One Republican who had previously indicated she might vote for cloture (against the filibuster), Susan Collins (R-ME), dashed Democrats’ final hopes by saying she would not vote for cloture after all. “The bill would provide a clear and unfair advantage to unions while either shutting other organizations out of the election process or subjecting them to onerous reporting requirements that would not apply to unions,” says Collins spokesman Kevin Kelley. “Senator Collins believes that it is ironic that a bill aimed at curtailing special interests in the election process provides so many carve-outs and exemptions that favor some grass-roots organizations over others. This, too, is simply unfair.” Other so-called Republican moderates such as Olympia Snowe (R-ME) and Scott Brown (R-MA) have previously indicated they would not vote for cloture. Ironically, one of the “carve-outs” in the bill Schumer added was on behalf of the far-right National Rifle Association (NRA), an addition that Schumer says was made to placate Republicans. Schumer says that even if the bill does not pass now, attempts to reintroduce it will be made. The DISCLOSE Act “is one of the most important for the future of our democracy, not just for the next six months but for the next six decades,” he says. White House press secretary Robert Gibbs says: “I don’t know what the final vote will be tomorrow, but I know that you—if you had a sliver of Republicans that thought special-interest giving and corporate influence in elections was… part of the problem, then this bill would pass. Now we get to see who in the Senate thinks there’s too much corporate influence and too much special-interest money that dominate our elections and who doesn’t. I don’t know how it could be any clearer than that.” Senate Minority Leader Mitch McConnell (R-KY) retorts: “The DISCLOSE Act seeks to protect unpopular Democrat politicians by silencing their critics and exempting their campaign supporters from an all-out attack on the First Amendment (see January 21, 2010). In the process, the authors of the bill have decided to trade our constitutional rights away in a backroom deal that makes the Cornhusker Kickback look like a model of legislative transparency.” [Politico, 7/26/2010] The “Cornhusker Kickback” McConnell is referencing is a deal struck in late 2009 by Senate Majority Leader Harry Reid (D-NV) to win Nelson’s support for the Democrats’ health care reform package, in which Nebraska, Nelson’s state, would receive 100 percent government financing for an expansion of Medicare. [Las Vegas Sun, 12/20/2009]

Entity Tags: Harry Reid, Federal Election Commission, Charles Schumer, Ben Nelson, Barack Obama, US Supreme Court, US Senate, Susan Collins, Scott Brown, DISCLOSE Act of 2010, Olympia Snowe, Mitch McConnell, National Rifle Association, Robert Gibbs, Kevin Kelley

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

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

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

Timeline Tags: Civil Liberties

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

Bradley A. Smith, the chairman of the Center for Competitive Politics (CCP) and a former commissioner and chairman of the Federal Election Commission (FEC) during the second Bush administration, writes that the Citizens United decision (see January 21, 2010) and the subsequent flood of corporate money into the political campaign continuum (see January 21, 2010, January 21, 2010, January 21-22, 2010, January 21, 2010, January 21, 2010, January 21, 2010, March 26, 2010, April 5, 2010, September 13-16, 2010, September 21 - November 1, 2010, October 2010, Mid-October 2010, October 18, 2010, Around October 27, 2010, June 23, 2011, July 12, 2011, August 4, 2011, October 27, 2011, November 23, 2011, December 1, 2011, January 3, 2012, January 6, 2012, and January 10, 2012) are good for American politics. [US News and World Report, 1/13/2012] According to a 2008 press report, Smith co-founded the CCP in 2006 in order to roll back campaign finance regulations, claiming that virtually any regulation is bad for politics. Smith has refused to reveal the financial sponsors that gave him the “seed money” to start the organization. Smith helped win the landmark SpeechNow case (see March 26, 2010) that allowed for the creation of “super PACs,” the organizations that are primarily responsible for flooding the campaign with corporate money. According to law professor Richard Hasen, Smith and the CCP have worked diligently to bring cases like the SpeechNow case to the Supreme Court so that the conservative-dominated Court can “knock them out of the park.” [Politico, 8/12/2008] Smith now writes: “Super PACs are not an evil tolerated under the First Amendment—they are what the First Amendment is all about. A super PAC, after all, is simply a group of citizens pooling resources to speak out about politics.” He claims that super PACs merely “leveled the playing field” after Democrats and Democratic-supporting organizations consistently outfunded Republican campaigns during elections. Super PACs have kept the presidential campaigns of candidates such as Rick Santorum (R-GA—see February 16-17, 2012) and Newt Gingrich (see December 19, 2011 and January 6, 2012) alive. Smith predicts that Democrats will easily outspend Republicans again once the presidential primary campaign concludes (see Around October 27, 2010), November 1, 2010 and May 5, 2011), but says, “Super PACs, however, will help level the field.” Smith claims that super PACs “disclose all of their expenditures and all of their donors,” and claims that any information to the contrary is wrong, as it is “confusing super PACs with traditional nonprofits such as the NAACP or the Sierra Club.” He concludes: “Super PACs are helping to shatter the old, established order, create more competition, and break the hold of special interests lobbyists—big business actually joined the ‘reform’ community in opposing super PACs in court. Are super PACs harming politics? Of course not. How odd that anyone would think that more political speech was bad for democracy.” [US News and World Report, 1/13/2012] The Citizens United decision specifically allows for donors to super PACs to remain anonymous, despite Smith’s claims to the contrary (see January 27-29, 2010, July 26, 2010, July 26-27, 2010, September 13-16, 2010, September 21 - November 1, 2010, Mid-October 2010, Around October 27, 2010, April 20, 2011, April 21, 2011 and After, July 12, 2011, and November 18, 2011). Republicans have fought to preserve that anonymity (see July 26-27, 2010, May 26, 2011, July 15, 2011, and July 20, 2011). Smith is correct in saying that traditional nonprofit groups must disclose their donors, though many are apparently failing to do so (see October 12, 2010).

Entity Tags: Rick Santorum, Center for Competitive Politics, Bradley A. (“Brad”) Smith, Newt Gingrich, Richard L. Hasen

Timeline Tags: Civil Liberties, 2012 Elections

Bradley A. Smith, the chairman of the Center for Competitive Politics (CCP) and a former commissioner and chairman of the Federal Election Commission (FEC) during the George W. Bush administration, writes a second editorial for US News and World Report defending “super PACs,” the “independent” political entities responsible for infusing millions of dollars into the political campaign system. Smith wrote an editorial in January 2012 defending super PACs, claiming they are the direct outgrowth of First Amendment free-speech rights and are actually good for the campaign system (see January 13, 2012). However, as in his first editorial, Smith makes a number of false claims to bolster his arguments. Such organizations were created in the aftermath of the Supreme Court’s 2010 Citizens United decision (see January 21, 2010) and the following SpeechNow.org decision (see March 26, 2010). He notes, correctly, that until 1974 there were no federal restrictions on super PACs, apparently referring to that year’s amendments to the Federal Election Campaign Act (see 1974), though he fails to note that such organizations did not exist until after the SpeechNow decision. He claims that “[t]here is no evidence that super PACs have led to a greater percentage of negative ads” than in earlier presidential campaigns, though he cites no evidence to that effect. He also claims, as he did in the first editorial, that it is false to claim super PACs “spend ‘secret’ money. This is just not true. By law, super PACs are required to disclose their donors. There are groups that have never had to disclose their donors, non-profits such as the Sierra Club, Planned Parenthood, the NAACP, and the NRA. If you want more disclosure, super PACs are a step forward.” Unfortunately, the Citizens United decision specifically allows donors to super PACs to remain anonymous, despite Smith’s claims to the contrary (see January 27-29, 2010, July 26, 2010, July 26-27, 2010, September 13-16, 2010, September 21 - November 1, 2010, Mid-October 2010, Around October 27, 2010, April 20, 2011, April 21, 2011 and After, July 12, 2011, and November 18, 2011). Republicans have fought to preserve that anonymity (see July 26-27, 2010, May 26, 2011, July 15, 2011, and July 20, 2011). As in the first editorial, Smith is correct in saying that traditional nonprofit groups must disclose their donors, though many are apparently failing to do so (see October 12, 2010). He also claims that super PACs increase competition—“level the playing field,” as he wrote in the first editorial—by allowing Republican candidates to equal the spending of their Democratic opponents. In reality, Republicans have outstripped Democrats in outside, super PAC spending since the Citizens United decision (see Around October 27, 2010, November 1, 2010, and May 5, 2011). Smith bolsters his claim by citing direct campaign spending as offsetting “independent” super PAC spending, such as in the 2010 US House race involving incumbent Peter DeFazio (D-OR), who won re-election even after a $500,000 super PAC-driven effort on behalf of his challenger. DeFazio, Smith claims, “outspent his opponent by a sizable margin and won. Still, for the first time in years he had to campaign hard for his constituents’ support. That’s a good thing.” He cites the presidential campaigns of Republican contenders Newt Gingrich (R-GA—see December 19, 2011 and January 6, 2012) and Rick Santorum (R-PA—see February 16-17, 2012), which have relied on the contributions of a very few extraordinarily wealthy contributors to keep their candidacies alive against the frontrunner Mitt Romney (R-MA), whose own super PAC funding is extraordinary (see June 23, 2011). And, he writes, super PAC spending “improves voter knowledge of candidates and issues. Indeed, political ads are frequently a better source of information for voters than news coverage.” The most important benefit of the two Court decisions and the subsequent influx of corporate money into the US election continuum (see January 21, 2010, January 21, 2010, January 21-22, 2010, January 21, 2010, January 21, 2010, January 21, 2010, March 26, 2010, April 5, 2010, September 13-16, 2010, September 21 - November 1, 2010, October 2010, Mid-October 2010, October 18, 2010, Around October 27, 2010, June 23, 2011, July 12, 2011, August 4, 2011, October 27, 2011, November 23, 2011, December 1, 2011, January 3, 2012, January 6, 2012, January 10, 2012, and January 23, 2012), he writes, “is that they get government out of the business of regulating political speech. Who would say that you can’t spend your own time and money to state your own political beliefs? Vindicating that fundamental First Amendment right is good for democracy.” [US News and World Report, 2/17/2012]

Entity Tags: Newt Gingrich, Bradley A. (“Brad”) Smith, Center for Competitive Politics, Peter DeFazio, Federal Election Campaign Act of 1972, Willard Mitt Romney, Federal Election Commission, US Supreme Court

Timeline Tags: Civil Liberties

A federal court rules that the Federal Election Commission (FEC) has exceeded its authority by requiring only corporations and labor unions, and not all contributors, to report contributions made for the purpose of furthering electioneering communications as defined in the 2002 Bipartisan Campaign Reform Act (BCRA—see March 27, 2002). Judge Amy Berman Jackson of the US District Court in Washington, DC, issues the ruling in the case of Van Hollen v. Federal Election Commission, filed by US Representative Chris Van Hollen (D-MD—see April 21, 2011 and After). Under the BCRA, corporations or labor unions who do not segregate their funds for campaign purposes as opposed to more general purposes must report all contributions of $1,000 or more. (The Citizens United decision of 2010 rendered such segregation of funds optional—see January 21, 2010.) Those contributions include money donated by anyone who gives to a corporation or labor union. In December 2007, the FEC revamped its disclosure regulation in the wake of the Right to Life v. Federal Election Commission ruling (the so-called “WRTL ruling”—see June 25, 2007) to create a loophole allowing corporations to evade disclosure requirements. 501(c)4 groups such as Crossroads GPS have avoided disclosure of their donors by using this loophole. Jackson agrees with Van Hollen, ruling that the FEC’s revision violates the plain language and legislative purpose of the BCRA. Jackson writes: “Congress spoke plainly, that Congress did not delegate authority to the FEC to narrow the disclosure requirement through agency rulemaking, and that a change in the reach of the statute brought about by a Supreme Court ruling did not render plain language, which is broad enough to cover the new circumstances, to be ambiguous. The agency cannot unilaterally decide to take on a quintessentially legislative function; if sound policy suggests that the statute needs tailoring in the wake of WRTL or Citizens United, it is up to Congress to do it.” She rejected arguments that broader reporting requirements would place an undue burden on corporations and unions, and thusly would violate their First Amendment freedoms, ruling that the Citizens United decision already invalidated those arguments by upholding BCRA reporting requirements. If Jackson’s ruling survives an appeal, the FEC will have to go back and revamp its regulatory language to require disclosure of all contributors, no matter what the purpose, for any corporation or labor union that uses general, unsegregated funds for campaign purposes. Or, corporations and unions may choose to create segregated funds for campaign purposes in order to avoid reporting their contributors. Josh Israel of the liberal news Web site Think Progress writes that even if the FEC chooses to rewrite its rules to comply with Jackson’s ruling, “countless loopholes remain” to allow corporations and unions to shield the identities of their donors. For instance, donors and companies could more-or-less launder donations through middle-man groups, shielding their own identities. “Even if we somehow achieved full disclosure… for all political spending,” Israel writes, “any meaningful reforms to the campaign finance system will require the high court to reverse the 5-4 Citizens United ruling.” [Law Librarians' Society of Washington, D.C., 9/2002; National Archives and Records Administration, 2012; Van Hollen v. Federal Election Commission: Memorandum Opinion, 3/30/2012; Constitutional Law Prof Blog, 4/3/2012; Think Progress, 4/9/2012] On May 14, an appeals court will refuse a stay of the decision, filed by an organization identified in the court order as the Center for Individual Freedom. [US Court of Appeals for the District of Columbia Court, 5/14/2012 pdf file]

Entity Tags: Bipartisan Campaign Reform Act of 2002, Amy Berman Jackson, American Crossroads GPS, Federal Election Commission, Center for Individual Freedom, Chris Van Hollen, Josh Israel, US Supreme Court

Timeline Tags: Civil Liberties

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