Tag Archives: Citizens United

Money And The Planet

We’re at a time of the year and election cycle when news about the political campaigns tends to drown out other important or newsworthy developments. Policy arguments, particularly, take a back seat to “breaking news” about the latest evidence or eruption of Trump’s mental illness and general despicableness–like the taped confession that he knew in February how contagious and dangerous the COVID-19 virus was.

So I’ve seen very little about an important effort to counter climate change being made by the Democrats in the House of Representatives. Late last month, The Guardian reported on a three-part plan that aims to expose and counter the fossil fuel industry’s well-funded efforts to conceal the scale of the climate crisis.

Senate Democrats are set to release a 200-page plan arguing that significant US climate action will require stripping the fossil fuel industry of its influence over the government and the public’s understanding of the crisis.

“It’s important for the public to understand that this is not a failure of American democracy that’s causing this,” said Sheldon Whitehouse, a Senate Democrat from Rhode Island. “It is a very specific and successful attack on American democracy by an industry with truly massive financial motivation to corrupt democratic institutions.

A report titled Dark Money has laid out in detail just how “giant fossil fuel corporations have spent billions – much of it anonymized through scores of front groups – during a decades-long campaign to attack climate science and obstruct climate action”.

It isn’t as though the media hasn’t reported on this web of disinformation. Environmental groups have brought lawsuits that have exposed the fossil fuel industry’s efforts to conceal the scale of the problem and its use of dark money groups to slow a shift away from fossil fuels. But as Whitehouse points out, the story has yet to reach the American public.

In an indication of how interrelated our current problems are, and the extent to which campaign finance permissiveness has affected policymaking, the report blames the 2010 Citizens United Supreme Court decision that allowed industries to spend virtually unlimited sums of money to sway elections.

The elements of the three-part plan are:

“Expose the role of the fossil fuel billionaires, executives and corporations in funding and organizing the groups trafficking in climate denial and obstruction.”

“Reform federal laws and regulations to require greater transparency and reduce the influence of money, particularly dark money, in politics.”

“Alert industries that support climate action to the depth, nature and success of the covert fossil fuel political scheme.”

The article points out that climate change–like so much else in our polarized political world–has become a defining feature of partisanship.

Republicans meanwhile are split on the climate issue, with some outright denying the science, many questioning the severity of the crisis, and a growing minority pitching technologies for capturing emissions from fossil fuels so they can continue to be used. Donald Trump has called climate change a hoax and rescinded essentially all of the federal government’s biggest climate efforts.

The article noted that fossil fuel companies knew the severity of the climate crisis as early as the late 1970s, and are only now–reluctantly–confronting it. Whitehouse pins the success of their intervening efforts to mislead and misdirect directly on Ciitizens United.

Whitehouse was elected to the Senate in 2006, and he said everything changed immediately after the supreme court issued the Citizens United ruling in 2010. “There’s a very clear before and after,” he said.

“I don’t think Americans understand enough the extent to which the fossil fuel industry has weaponized a whole variety of systems and laws that now competes with the government itself for dominance,” Whitehouse said.

A final note: The United States is scheduled to exit the Paris Climate Agreement on November 4th.

 

 

Speaking of Inequality…

There is enormous focus these days on economic inequality, and for good reason. The gap between the top 1% and other Americans is growing, the middle class that built the country and ensured social stability is shrinking, and the likely consequences of those phenomena aren’t pretty.

In the United States, our Constitution guarantees us only equality before the law. Critics may quote Anatole France for the proposition that “In its majestic equality, the law forbids rich and poor alike to sleep under bridges, beg in the streets and steal loaves of bread,” but there is much to be said for a system that protects individual liberties against encroachments by the state. In such system, however, efforts to ameliorate material deprivations are statutory, not constitutional, and as we continue to be reminded, statutory entitlements are vulnerable to efforts to punish poor people for their misfortune.

Most public discourse around “equality” tends to focus on these issues of legal and economic equality and the relationship—or conflict—between the two. We rarely focus on  a third kind of equality—democratic equality—despite the fact that it has a major influence on whether the country achieves the others.

Democratic equality simply means the equal right of each citizen to participate in the democratic process. It probably won’t come as a surprise to find that we aren’t doing terribly well on that front, either.

The influence of money in politics has grown exponentially since the Supreme Court’s ill-considered decision in Citizens United. (Actually, the problem started earlier, with the case of Buckley v. Valeo, when the Court first conflated money with speech) The result has been that those with money are able to “speak” much more loudly and effectively than the rest of us. When democracy becomes “pay to play,” there is no equality of participation.

It isn’t just money. In Indiana—which is unfortunately not an outlier— the legislature has used its power to make it more difficult to vote.

We have one of the strictest Voter ID laws in the nation—in order to cast a ballot, you must not only have a government-issued picture ID, that ID must have an expiration date. (This conveniently excludes the picture IDs issued by state universities.) Middle-class folks assume that it’s simple enough to obtain such identification, but for poorer people—particularly older black citizens who were born at home and lack a birth certificate—getting the necessary documentation can be both onerous and costly. (Despite pious rhetoric about deterring “voter fraud,” fraudulent in-person voting is virtually nonexistent.)

The Indiana legislature has also declined to enact other measures that encourage or facilitate voting by working-class Americans: keeping the polls open past six, establishing convenient voting centers, expanding early and absentee voting.

It’s bad enough that lawmakers see fit to erect barriers to voting rather than making it easier. But as I have previously posted, the most serious denial of democratic equality comes through partisan gerrymandering that produces an abundance of “safe” seats and eliminates voter choice.

Increasingly, especially at the state level, our legislators choose their voters—the voters don’t choose their representatives. So even when disadvantaged folks make it past the obstacles and manage to cast their ballots, they often find they are given no meaningful choice. A growing number of elections are uncontested.

As a result of democratic inequality, the people who would benefit most from the election of candidates willing to work for legal and/or economic equality have less access, less influence and less voice than their more privileged neighbors.

The system is broken.

 

 

A Consensus that Doesn’t Seem to Matter

I don’t recall which American humorist first delivered the line, “I’m not a member of an organized political party; I’m a Democrat” but for many years, “disorganized” was one of the kinder descriptions of the Democratic party.

Contemporary Democrats remain ideologically diverse, but these days, the divisions are far deeper in the Republican party, where extremists elected to Congress from some 80 deep-red (often gerrymandered) districts are far, far to the Right of most Republican voters.

Just how much does this fringe depart from the policy preferences of the Republican rank-and-file?  If we are talking about issues of campaign finance reform, a recent poll strongly suggests the answer is “pretty far.

Americans of both parties fundamentally reject the regime of untrammeled money in elections made possible by the Supreme Court’s Citizens United ruling and other court decisions and now favor a sweeping overhaul of how political campaigns are financed, according to a New York Times/CBS News poll.

The findings reveal deep support among Republicans and Democrats alike for new measures to restrict the influence of wealthy givers, including limiting the amount of money that can be spent by “super PACs” and forcing more public disclosure on organizations now permitted to intervene in elections without disclosing the names of their donors.

And by a significant margin, they reject the argument that underpins close to four decades of Supreme Court jurisprudence on campaign finance: that political money is a form of speech protected by the First Amendment. Even self-identified Republicans are evenly split on the question.

The poll confirms that most Americans–Republican and Democrat alike–reject the Court’s sunny conclusion that money does not corrupt the process or allow the wealthy to “buy” policies favorable to their interests.

The broader public appears to see things differently: More than four in five Americans say money plays too great a role in political campaigns, the poll found, while two-thirds say that the wealthy have more of a chance to influence the elections process than other Americans.

Those concerns — and the divide between Washington elites and the rest of the country — extend to Republicans.

Three-quarters of self-identified Republicans support requiring more disclosure by outside spending organizations, for example, but Republican leaders in Congress have blocked legislation to require more disclosure by political nonprofit groups, which do not reveal the names of their donors.

Republicans in the poll were almost as likely as Democrats to favor further restrictions on campaign donations, even as some prominent Republicans call for legislation to eliminate existing caps on contributions.

Perhaps if the more extreme partisans sent to Washington from safe, deep-red districts had to answer to more moderate–and more representative–Republican voters, their legislative behavior would be different.

Perhaps if a couple of the eminent scholars on the Court had ever run for or held political office, their lofty abstractions might be tempered with, and informed by, real-world experience.

And perhaps, if pigs could fly…..

Corporations and the First Amendment

We live in an era when everything–every case decided by the Courts, every law passed by Congress or a state legislature, every encounter between police and citizens–generates frightening headlines, hysterical tweets, and multiple emails from activist organizations exhorting recipients to take action (usually involving signing a petition and sending money).

So it’s easy to become jaded, to attribute the decibel level to partisanship, or a lack of perspective or analysis. I know I increasingly find myself thinking “just chill out. This isn’t the end of the world. Get a grip.”

Some things, however, prove to be every bit as worrisome as the scolds and screamers predicted. A grim assessment from a recent Harvard study suggests that the consequences of Citizens United and the line of cases leading up to it have been even more damaging than we were warned at the time.

Some of the study’s key findings include

While the First Amendment was intended to protect individual freedom of religion, speech and assembly, as well as a free press, corporations have begun to displace individuals as its direct beneficiaries. This “shift from individual to business First Amendment cases is recent but accelerating.”

Over time the high court has shown an increasing willingness to rule in favor of corporate interests, as a result “reducing law’s predictability, impairing property rights, and increasing the share of the economy devoted to rent-seeking rather than productive activity.”…

The ability for corporations to obtain relief from the courts gives them incentive to “place bets not on new technologies or marketing strategies, but on legal and political ‘innovation’” to protect markets they have and exclude new entrants. This also has the effect of causing regulatory agencies to reduce their efforts, because enforcing existing laws becomes increasingly difficult….

American public discourse tends to be very bipolar and “zero sum.” Policies are either right or wrong, good or bad. A right accorded to X must mean diminished rights for Y.

In the real world, however, the goal of policy is more often than not to achieve an appropriate balance between or among competing interests, all of whom are entitled to have their rights respected. Most Americans would agree that businesses have the right to participate in the marketplace of ideas, and that the law should respect the fiction of corporate “personhood” in the contexts for which that personhood was originally created.

It is when Court decisions and legislative actions create troubling imbalances of power, we risk substantial damage to our social ecosystem. Cases like Citizens United and Hobby Lobby have upset that balance, empowering corporations while disempowering individual citizens.

“These findings present a challenge to the view, articulated by the majority and concurrences in Citizens United and Hobby Lobby, that corporations and other business entities should be understood ‘simply’ as aggregations or associations of individuals, and so should not be distinguished from them for purposes of First Amendment analysis,” the author writes in his conclusion, continuing: “The corporate takeover of the First Amendment represents a pure redistribution of power over law with no efficiency gain — ‘rent seeking’ in economic jargon. That power is taken from ordinary individuals with identities and interests as voters, owners and employees, and transferred to corporate bureaucrats pursuing narrowly framed goals with other people’s money. This is as radical a break from Anglo-American business and legal traditions as one could find in U.S. history.”

Sometimes, the decibels are appropriate.

Spawn of Citizens United

During my six years as Executive Director of Indiana’s ACLU, if my youngest son called the office when I was out, he’d leave a message: “just tell her Satan’s spawn called.” (He found the popular caricature of the ACLU endlessly amusing.)

I thought about “spawn” when a Facebook friend pointed me to a recent, truly bizarre ruling from the Seventh Circuit Court of Appeals.

When the Supreme Court decided, in Citizens United, that corporations have a right to free speech, it drew a dangerous equivalence between individual human beings and the legal constructs created to simplify the transaction of business and commercial transactions. In the immortal words of Mitt Romney, the Court ruled that for purposes of free speech, “corporations are people, my friend.”

Citizens United was itself the spawn of a series of unfortunate Supreme Court rulings that effectively equated money with speech. It thus had the effect of handing a huge megaphone to corporate entities able to outspend–and thus “out-shout”–individual voters. The ruling has been exploited to allow for the creation of so-called “SuperPacs,” and it has raised a number of thorny issues, among them: what happens when shareholders don’t agree with the corporate “message”? What if they don’t agree that money should be spent for such arguably non-business-related purposes?

The problems and questions that have emerged in the wake of Citizens United point to the essential absurdity of treating artificial constructs as if they were people. And now the ruling is spawning even more nonsensical progeny. If you have had trouble getting your head around the nature of a corporate right to “free speech,” try this one: the Seventh Circuit says corporations have a right to the free exercise of religion.

The court came to this bizarre conclusion in a case brought by K & L Contractors, a secular, for-profit company that is challenging the Obama Administration’s mandate that contraception coverage must be provided by employers as part of their health insurance coverage.  The court ruled that the fact “that the Kortes’ [the majority shareholders] operate their business in the corporate form is not dispositive of their claim,” a proposition for which it cited Citizens United.

The result in this case is clearly contrary to the law prior to Citizens United. For decades, the law has essentially recognized a trade-off: if you opt to do business in corporate form, you get to take advantage of the benefits that status confers, especially the ability to limit your personal liability for debts the corporation incurs. In return, you follow the rules that apply to corporations, including loss of the right to impose your religious faith on your employees.

Even for individuals, asserting a religious objection to a law of general application is seldom seen as justification for ignoring that law. If my religion requires that I use cocaine, or sacrifice my first-born, or chain up my spouse, the courts are unlikely to give me a pass from the rules against those behaviors.

Let’s hope Citizens United hasn’t changed that result.

In fact, let’s hope the Supreme Court comes to recognize how reckless that decision really was, and limits or overrules it.