Tag Archives: Citizens United

How the Roberts Court’s Freedom of Speech-Dollars Can Save American Democracy (Unintentionally)

The Supreme Court’s recent decision in McCutcheon v. FEC continued the trend of rolling back limits on how money is used in elections. Today, money as free speech can be regulated only to stop quid pro quo corruption, “a direct exchange of an official act for money.” Those speech-dollars can do almost anything under the court’s ever-narrowing definition of corruption.

Those that support the decisions expanding the freedom of speech-dollars may be disappointed to see how it could be used to actually improve American democracy by increasing voter participation. Doing so could lead to more populist electoral outcomes that would eventually lead to electoral reforms that again limit the power of great wealth over our electoral process. (Yes, it is amusing to consider that to close the loophole we must exploit it.)

Supreme Court Campaign Finance Citizens United McCutcheon

from Vox

Under the Court’s current interpretation,  the First Amendment gives you the right to express your political beliefs through the act of giving your money to candidates for office (and other groups) that support the same (candidates or beliefs).  What if you were to spend speech-dollars in the electoral process for the following belief: “the republic is best served by maximizing voter turnout”?  The Court is also repelled by content-based restrictions on speech.  One could put those speech-dollars behind efforts to support the act of voting instead of the act of running for office.  You support voters, not candidates.

You support voters and want to spend money to help more of them vote. Yes, you could fund traditional “get out the vote” drives. However, under McCutcheon and its ilk, you can get more creative (so long as you avoid quid pro quo corruption).

The federal statute regulating “expenditures to influence voting,” 18 U.S.C. § 597, is now partially unconstitutional under the new precedents protecting free speech-dollars with the First Amendment. The statute states:

“Whoever makes or offers to make an expenditure to any person, either to vote or withhold his vote, or to vote for or against any candidate; and whoever solicits, accepts, or receives any such expenditure in consideration of his vote or the withholding of his vote—shall be fined under this title or imprisoned not more than one year, or both; and if the violation was willful, shall be fined under this title or imprisoned not more than two years, or both.”

Don’t let that scary language fool you: similar sanctions used to be in place for persons exceeding various campaign donation limits. Under the Roberts Court version of American democracy, the constitution gives money much more freedom.

An individual or organization could now offer to pay, say $5 million, to one randomly selected person who voted in a given election. A similar plan was on the ballot in Arizona about a decade ago, but turned out to be ahead of its time. It was defeated, surprise, in a state dominated by a party that, putting it lightly, doesn’t think everybody should vote.

A follow-up post will examine what a privately-funded “American Dream Prize” could look like under the new electoral system that protects freedom of speech-dollars — and you can believe the folks that love Citizens United & McCutcheon will absolutely loathe the “American Dream Prize.”

Which Crisis is More Bleak and Irreversable: Campaign Finance or Climate Change?

Climate Change Campaign Finance

Here’s an interesting conundrum that popped into my head the other day:  Which Crisis is More Bleak and Irreversable:  Campaign Finance or Climate Change?

Climate Change Campaign Finance

Campaign finance impacts the state of our American democracy; climate change concerns the livability of our planet.  It could be we are past the point of no return on both of them.

Campaign Finance.  It still costs a lot of money to run for office in America.  We attempt to regulate how candidates get and spend campaign cash in order to protect the idea that citizens are equal participants in our republican democracy.  This fundamental goal mildly conflicts with First Amendment principles, and we get to watch the Constitution eat itself.  Since McCutcheon, with the Supreme Court no longer recognizing everyday Americans’ understanding of corruption, wealthy donors can freely purchase influence by donating to every member of Congress and — just to be sure — every one of their general election opponents.  Lest we forget, the impact of Citizens United continues as unlimited “independent” expenditures are permitted.  Candidates’ official campaign organizations no longer have to bear the entire burden of the campaign; let some “independent” group produce and pay for that attack ad.

What are the odds of halting or reversing the slide from American democracy to plutocracy (no, it doesn’t mean “rule by Pluto,” though we might be better off under the control of a fictional cartoon dog than a handful of sociopathic 0.1%ers)?  Well, Justices Scalia, Thomas, and Kennedy are getting old, and it looks like Democrats will control the White House for the next generation.  However, I wouldn’t be surprised to see a Democratic president cave in and nominate a “confirmable” choice for a Republican-controlled Senate to confirm.  If the Democratic president does grow a spine, we could be in for some kind of constitutional crisis.

Climate change.  My god, they’re still arguing over whether it’s real! Every time it snows, some dumbass will remark, “So much for global warming.  Har-har.”  The people/corporations with the most power got that power because the status quo worked out pretty well for them.  Changes dramatic enough to make a difference, won’t look good to their short-term bottom line.  After all, they’ll be dead in 60 years, why should they care if the rest of us have to deal with weekly Hurricane Sandys?

Can climate change be fixed?  Scientists have stated that the safe level of CO2 in the atmosphere is 350 parts per million.  We’re over 400 this month.  It’s a global problem.  It is going to be hard to get all the industrialized countries on board, especially the recently developing ones.  China wants a chance to live like Americans, too.  I’m skeptical that we’ll be able to recruit the will to do enough and that when we do the damage will not have already reached some kind of tipping point (I’m looking at you so-called permafrost).

Well, both campaign finance and climate change are nearly unresolvable.  If I were to bet, I’d say we figure out how to manage our democracy just in time to watch Miami flooded.  It’s just as likely we’d be snapped back to sanity by some other unrelated natural catastrophe, like an asteroid strike or massive volcanic eruption.



Election Skewing Schemes are Republic Rape

Trying to rig elections is an attempted rape of the republic, taking power without legitimately receiving the consent of the governed.  Gaming the electoral system to shift the outcome even slightly is an affront to the basic principles of democracy underlying our representative republic, the same cherished ideas that thousands have died fighting for.  People need to start getting angry about this instead of thinking, “Oh, well, if it helps my team win, I don’t really care.”  Imagine a code of electoral sportsmanship written by Tonya Harding (here’s the link, confused millennials).

Tampering with the connection between citizens and their representatives severely undermines what it means to be a republic.  Our elections are the connection.  Chip away at enough of this connection and the republic established by the constitution is gone.  To paraphrase Yakov Smirnoff: “In a republican democracy, voters choose their politicians; in America, politicians choose their voters.”

Elections are imporant, because that’s how we measure the consent of the governed.  Where have we heard that before?  Here, in the frickin’ Declaration of Independence (not to be confused with the Declaration of Frickin’ Independence):

That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.

That’s right; the ever-glorified founders didn’t like it when ole King George got too cute messing with the consent of the governed, so they ended up starting a little war we’ve all heard about.  When that war was over, they they created a government by writing another well-loved document, the U.S. Constitution.  It contains these nuggets:

Article I, Section 2: The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.

Article IV, Section 4:
The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic Violence.

Article VI: The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution

Amendment XV: The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

Amendment XIX: The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.

Amendment XXIV: The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay poll tax or other tax.

Amendment XXVI: The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.

Despite all of that, you should be horrified to hear, the Supreme Court has not found that people have a federal constitutional right to vote.  The standard is that if the state chooses to allow voting, the government cannot impede your vote using certain methods:  discrimination based on race, sex, age, poll tax, etc.  Other restrictions can stand with relatively minor justifications.

Right now it seems as if the Republican Party is leading the way — by being more desperate and/or crafty — in coming up with electorate shaping schemes.  I’m not letting the Democrats off the hook here.  The Democratic Party has for years been a willing co-perpetrator of the now traditional abomination known as partisan gerrymandering.  Besides, generally the Democratic Party is either too weak or stupid to come up with these creative, aggressive, and shameless election tinkering schemes.

What prompted this increasing Republcan backlash against small-r republicanism?  It seems the GOP has seen the writing on the wall about demographics:  The future electorate is increasingly leaning towards the Democrats.  To continue to have a chance to win, they are making a strategic decision to tinker with the election process.  Make it harder for people to vote, so only the most agitated will make the effort to cast a ballot.  Secondly, shape the process to allow Republican allies to have greater opportunity to have a bigger impact on how the citizens vote (See Citizens United).   

Even if the reforms appear to have a minor impact on the electorate, it only takes a few hundred — sometimes even a few dozen — votes to determine the outcome in some races.  Here are some ways they are making it harder for people to vote.

Restricting Voter Registration:  A Florida law required groups conducting voter registration to turn in registration forms within 48 hours or else face a $1,000 per day fine.  That law has been blocked by a federal judge, and groups have resumed their work in Florida.  Inactive for several months, they are well behind the registration pace of 2008.

Rolling Back Early Voting:  Ohio’s new law, enacted by Republican controlled legislature and signed by John Kasich  “ends in-person early voting for most Ohioans on the Friday evening before the Tuesday election, while allowing military and overseas voters to cast ballots in person until Monday.”

Purging Voter Rolls:  Topping the list is Florida, where Republican governor Rick Scott is determined to eradicate the threat of non-citizens voting at any cost, but his favored cost is “accidentally” locking out would-be Democratic voters who happen to have foreign-sounding names. 

Now with access to Homeland Security database, Florida can send a letter to everyone who has a name that matches.  Imagine having the Latino equivalent of John Smith on the list.  Three or four may be illegally registered to vote, but hundreds may be forced to rebut the presumption that they can’t vote.  This appeal process takes more effort than simply showing up to vote.  It’s reasonable to expect some voters might think it is not worth the effort to find their “papers” and take additional steps to be eligible to vote.  Some people just won’t have the time for this nonsense, and the deadline is rapidly approaching.  With the election so close, knocking out a few probable-Democratic voters could prove the difference in the results. 

Governor Scott’s ability to enforce the purge may face some resistance at the local level.  For example:

“It clearly is partisan and political, but actually, there is no purge going on at the moment,” said Ion Sancho, the elections supervisor in Leon County, which includes the state capital of Tallahassee. “Unless the quality of the information we receive from the state gives us a reasonable belief that it is accurate, we don’t actually have to do anything.” Sancho, an independent who is harshly critical of Republican voting-restriction efforts, predicted he and many of his fellow clerks would simply refuse to implement voter removals out of concern the evidence wasn’t sufficient.”

That act of defiance set of my legal-spidey-sense.  In another Florida recount scenario, I could see Romney’s attorneys filing suit about whether these votes should count absent further proof of citizenship citing the refusal of supervisors to use the purge lists.

Requiring Photo ID:  Requiring voters to show government-issued photo ID is the most visible scheme because it seems so obviously targeted at a group that is heavily Democratic.  Any doubt that this is politically motivated is erased by the new Texas law (also currently in litigation) allowing voters to use military-issued ID and concealed carry gun permits, but not state college photo ID.

Want more proof?  Ask Pennsylvania House Majority Leader Mike Turzai.  Turazi recently described his party’s successful passage of a new voter ID law:  “Voter ID, which is gonna allow Governor Romney to win the state of Pennsylvania, done.”  I bet he got reprimanded for that one. “The first rule of Rigged-Election Club> is you don’t talk about Rigged-Election Club.

Since this is just a partisan ploy, let’s try to predict the next voter selection/suppression effort after everyone has their ID.  How about this:  disabled voters tend to lean Democratic.  When that knowledge becomes more widespread, expect GOP officials when asked about efforts to install or repair ramps at polling places to respond, “We just don’t have the money.”  If nudist voters show a tendency to vote Democratic, expect the spread of “No shirt, no shoes, no vote” laws.

Voter Suppression Map via CampusProgress.org

Yes, voter fraud exists, but it is nowhere near as rampant as they want us to think.  Voter ID laws are like using a sledgehammer to swat a fly.  They spout a noble goal of wanting to get the fly, but what they really want to do is smash a chunk of your wall.  Stopping a handful of potential fraudsters (and what a huge impact they would have on an election) at the cost of burdening thousands of innocent voters and disenfranchising hundreds — cracking down on voter fraud causes collateral damage that could win the election, costing the integrity of the republic. 

This strategy of implementing election skewing schemes is a treasonous usurpation, striking at the core of what it means to be a republic.  These are the desperate acts of a dying party that can’t win in a system where power is given to those with support of the majority of voters; instead of working to win over the public, it just alters the system.  This is republic rape:  taking power without the consent of the people.  If you have to cheat, you don’t deserve to win.  It is neither a legitimate nor honorable victory.

How Did They Turn the Working Class Against Unions?

This week’s Wisconsin recall election inspired me to examine the phenomenon of working class folks supporting the destruction of unions.

The argument I hear the most is that it is somehow unfair that people in union jobs get job security and “cushy” benefits, while other nonunion workers don’t.

This argument is bizarre. Because you don’t have those benefits, they say, it is obvious and only fair that those union folks shouldn’t have them either. NO, NO, NO, you idiots!  Instead of demanding they be taken away from others, why don’t you demand them for yourself. You deserve the benefits, too. This is like saying that because someone stole your car, your neighbor shouldn’t get to keep his car either.

Many people are susceptible to being persuaded by this nonsense because of their emotional loyalty to their partisan team. This makes them generally adverse to facts and very likely to believe and regurgitate whatever the team’s opinion leaders say.

The only mildly reasonable argument against unions I’ve read concerning the Walker recall is that public employee unions operate in a tainted collective bargaining process because they negotiate with elected officials. Thus the public unions have undue influence over the management side of the equation because they can pour money into campaigns. The argument goes further (salt in the wound) that the politician/manager no longer puts the interests of the shareholder first, who in this case is all of the taxpayers. So they argue unions get public employees unfair access to tax dollars.

This, perhaps the best argument union-crushers have, is a flawed position. If you ban public employee unions it doesn’t solve the problem you are concerned about. In fact, it might make that problem worse. First, without a union, public employees would feel more insecure about their position and more individuals would become politically active without having a union to do it for them.

Second, banning unions won’t stop the employees from having the ability to dump money into a campaign. We have this thing called the First Amendment. Employees are free to associate and work together in the political process. They could set up a PAC, perhaps more easily than a union.  Now, under Citizens United, they could set up a Super PAC and spend unlimited dollars in favor of a particular candidate.

So long as elected officials are in the position of employer, the employees will use the political process to pursue wokers’ interests.

How did the working class get turned against unions? It looks like the anti-union crowd tapped into partisan loyalty, jealousy, and ignorance to set up the divide-and-conquer approach to weaken the power of labor. I wonder how long it will take them to marshal support to repeal the 13th Amendment.