From the Sunlight Foundation:

Ellen Miller's "How the Citizens United Case Affects Money & Politics and Transparency As We Know It"
Sunlight Foundation Blog By Ellen Miller on 01/21/10 @ 2:29 pm | 12 Comments

The ramifications of today’s Supreme Court decision in Citizens United v. FEC are breathtaking – opening the floodgates of political money such as we have never seen before. If you thought Congress was ‘for sale’ to the highest bidder, you ain’t seen nothing yet. Nothing less than a fundamental rethinking of our campaign finance laws is demanded as a result of today’s decision.

But one thing becomes immediately clear: Transparency about the flow of campaign cash – online and in real time – became more important. While we do not think that transparency is a panacea for the horrific consequences of today’s decision, it is critically important as the shredded system is rebuilt.

Today’s decision underscores the necessity of creating comprehensive real-time disclosure for all election spending – across the board — from when and how often candidates, individuals and PACs report their contributions and expenditures to those involved in independent expenditures, issue ads or direct election advocacy.

Others will opine about what the Court wrote about lifting the limits and other related matters that were at the heart of this case, but we want to focus on the disclosure aspects of this case.

The Majority wrote:

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 for their positions and supporters. Shareholders can determine whether their corporation’s political speech advances the corporation’s interest in making profits, and citizens can see whether elected officials are ‘in the pocket’ of so-called moneyed interests…This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.

The Court goes on to note the Internet’s importance when it comes to meaningful disclosure, saying that “modern technology makes disclosures rapid and informative…A campaign finance system that pairs corporate independent expenditures with effective disclosure has not existed before today.”

True enough, but the disclosure system they describe doesn’t yet exist. The current disclosure system is insufficiently “rapid and informative” and does not make effective use of modern technology.

As a result of this decision, there will be tidal wave of corporate campaign expenditures. The systems for disclosure will have to come into the 21st century. Everything has to be reported online. All related campaign expenditures, including the new wave of issue ads, and independent expenditures and direct electioneering must be disclosed within 24 hours, with the names and addresses of anyone who has given more than $200 in support of the ad disclosed online. In fact, there should be 24-hour online reporting of all contributions of more than $200. The quarterly reporting system now in place is outdated and ineffective—ridiculous, in a word.

There is more to this case that deserves analysis, and more will come from Sunlight. We could go on and on about how wrong-headed Justice Thomas’ no-disclosure dissent is. We need to watch out that the court doesn’t use the guise of “protecting donors from harassment” as an excuse to limit disclosure.

But in the meantime, this decision should trigger momentum toward ensuring that all election-related information is available online in real-time. Disclosure remains a crucial antiseptic to the corrupting influence of money in politics. We should ensure our system is as transparent as possible.

We’ll have more to say, later today.

Open Congress: The Money Trail

Citizens United and Transparency: A Look Ahead
By Daniel Schuman, Sunlight Foundation blog, 01/21/10
LINK

The Supreme Court has issued its long-awaited decision in the election law case Citizens United, to which Ellen has posted her thoughtful response and initial reactions. I’m going to look at the decision’s implications for legal challenges to transparency over the long haul. These are first impressions of a 180+ page opinion and dissents, so thinking on this will likely evolve over the upcoming days and weeks.

To briefly recap, the Supreme Court examined whether the long-standing laws prohibiting corporations and unions from spending money on issue advertisements or express advocacy ads (that support a particular presidential or congressional candidate) violate the First Amendment; and also whether laws that require reporting of these expenditures are constitutional.

Justice Kennedy, writing for the narrow 5-4 majority, held that corporations and unions can spend unlimited amounts of money on issue advertisements or express advocacy right up until election day. Justice Stevens, writing for the dissent (joined by 3 other justices), criticized that decision on many grounds, including practical ones: “The unparalleled resources, professional lobbyists, and single minded focus they bring to this effort, I believed, make quid pro quo corruption and its appearance inherently more likely when they (or their conduits or trade groups) spend unrestricted sums on elections.” (Many argue, like election-law expert Rick Hasen, that the Court shouldn’t have reached these issues in the first place.)

What is clear is that corporations and unions will be able to dump tons more money into an already groaning political system. (We’ll shortly see who has more resources to draw upon.) The decision did not address whether unions and corporations may contribute directly to candidates (up until today they could not) , and left a number of other open questions.

Looking to transparency — disclosure of who funded the ads — only Justice Thomas (who dissents in part) would strike down measures requiring disclosure of donors. But the majority and minority have very different views on the usefulness of transparency in addressing money-related problems. They also leave open a big loophole to knock down transparency laws in the future.
Justice Kennedy could be a publicist for Sunlight. He writes “With the advent of the Internet, prompt disclosure of expenditures can provide … citizens with the information needed to hold … elected officials accountability for their positions and supporters.” It could; the law needs to be updated to require the prompt disclosure online in useful formats. We’ll be working on that.

Justice Kennedy dismisses the legal arguments against disclosure requirements one-by-one.

¦Disclosure is less restrictive than comprehensive regulations of speech (and thus doesn’t need to be struck down here)
¦Disclosure requirements don’t need to be limited to (essentially) express advocacy. (For example, they can apply to issue ads)
¦Disclosure requirements don’t need to be uniform — broadcast media, the Internet, and print can all be treated differently. (But you can’t treat corporations and unions differently from people.)
¦An “informational interest” — the public has an interest in knowing who is speaking about a candidate shortly before an election — is sufficient to upheld current disclosure requirements
So what’s the catch? There are likely several, but here’s the main one. Even though the Court won’t consider challenges to these disclosure requirements as they are written, it will consider challenges to them (known as “as-applied challenges”) if — are you ready — a group could show a reasonable probability that disclosure of its contributors names will subject the contributors to threats, harassment, or reprisals from either Government officials or private parties. How much harassment? What kind of reprisals? What is “reasonable probability”? No one knows.

This is catnip for lawsuits that would seek to hollow out disclosure requirements to their most innocuous — and least effective — forms. Justice Thomas, in his dissent, argues that harassment exists now, that it impermissibly chills free speech, and thus these disclosure rules should have been struck down in this decision.

The as-applied challenge escape clause isn’t stupid. It stems from attempts by the KKK to get membership lists of NAACP contributors during the civil rights era so that the Klan could attack the organization’s supporters. With firebombs. But that’s a far cry from disclosing corporate donors. It doesn’t weigh the importance of disclosing contributor names. Also, unlike in the civil rights era, criminal behavior such as that engaged in by the Klan will be prosecuted by the state, and likely can be deterred. This squishy legal test may allow malefactors to uproot the best remaining bulwark against a see-no-evil money-drenched political system. We may save the individual from hypothetical harm at the cost of the state.

Justice Stevens notes in his dissent that “The difference between selling a vote and selling access is a matter of degree, not kind. And selling access is not qualitatively different from giving special preference to those who spent money on one’s behalf.” Down we slide the slippery slope. Where may we end up? “Starting today, corporations with large war chests to deploy on electioneering may find democratically elected bodies becoming much more attuned to their interests.”

The Justice does nod towards disclosure. “Modern technology may help make it easier to track corporate activity, including electoral advocacy, but it is utopian to believe that it solves the problem.”

So, that’s where we’re left. Eight members of the Court agree that disclosure is useful to, in the words of Justice Kennedy, see whether elected officials are ‘in the pocket’ of so-called moneyed interests. Election-related expenditure limits are eliminated for unions and corporations, and perhaps people one day will be treated on par with corporations in terms of their expenditures. Finally, a case brought in federal district court today challenging these rules may have a Supreme Court with differently inclined members to hear it in a few years.

Sunlight Foundation press release

Sunlight on Campaign Finance: Supreme Court Should Protect The Public’s Right To Know
By Daniel Schuman , Sunlight Foundation blog, 08/03/09
LINK

Tags: amicus brief, BCRA, Citizens United, McCain-Feingold, Supreme Court

The Sunlight Foundation filed a friend of the court brief before the U.S. Supreme Court on Friday in a landmark campaign finance case that threatens public disclosure of election-related contributions and expenditures. The case, Citizens United v. Federal Election Commission, is scheduled for argument on September 9, 2009. One issue at stake is the public’s right to know who is funding political ads, and how much money they have spent.

The case arose in the context of whether the FEC could regulate a 90-minute, video-on-demand film, “Hillary: The Movie,” which criticized then-presidential candidate Hillary Clinton. The FEC had held that the film is a 90-minute paid political advertisement, and could be regulated under the Bipartsian Campaign Reform Act (BCRA). That decision has been appealed up to the Supreme Court.
As part of its review of the FEC’s decision, the Supreme Court is examining the constitutionality of BCRA’s disclosure requirements – that is, identifying who paid for the ad. It is also exploring whether to overrule its 1990 decision in Austin v. Michigan Chamber of Commerce and its 2003 decision in McConnell v. Federal Election Commission. Although those cases are better known for upholding limits on corporate spending, the rulings also touch upon the constitutionality of laws that require disclosure of who made election-related expenditures.

The Sunlight Foundation is concerned that overturning Austin and McConnell will have a negative effect on government transparency. Even were the Court to strike down regulations that ban the expenditure of corporate treasury (i.e., non-PAC) funds on producing “Hillary: The Movie,” we believe that the public has the right to know who is funding the movie, and how much they have spent doing so. In addition, striking down Austin and McConnell would likely generate uncertainty about the constitutionality of many other laws that require disclosure and reporting of campaign contributions and expenditures. There should be no doubt that our transparency laws are on solid constitutional footing.

Our amicus brief is focused solely on the issues of disclosure of information and government transparency. It was written by former New Jersey Supreme Court Justice Gary Stein. The National Institute on Money in State Politics and The Center For Civic Responsibility have joined us as signatories.

To strengthen the relationship between citizens and their elected officials, foster public trust in government, and remove corruption and the appearance of corruption, the Supreme Court must reaffirm that election disclosure requirements are constitutional and apply to the entire range of electioneering communications, regardless of whether they are express advocacy or issue advertisements. The public has a right – and the need – to know.

The brief is available here. More on Citizens United is available here.

Citizens United Amicus Brief Final


That’s the warning coming today from the folks at the Center for Public Integrity, who caution that the recent High Court decision empowering corporations to spend unlimited sums on federal election ads could also have the unintended consequence of ending the ban on foreigners buying influence over U.S. elections. Some foreign companies, the authors write, are owned by foreign governments and also have U.S. subsidiaries. The result?

One prominent example is CITGO Petroleum Company — once the American-born Cities Services Company, but purchased in 1990 by the Venezuelan government-owned Petróleos de Venezuela S.A. The Citizens United ruling could conceivably allow Venezuelan President Hugo Chavez, who has sharply criticized both of the past two U.S. presidents, to spend government funds to defeat an American political candidate, just by having CITGO buy TV ads bashing his target.

And it’s not just CPI that’s concerned about that possibility.

In his dissent in Citizens United, Justice John Paul Stevens cautioned that the decision “would appear to afford the same protection to multinational corporations controlled by foreigners as to individual Americans.”

And here we were worried that the biggest threats to American democracy, post-decision, were AT&T and Goldman Sachs.

via Supreme Court Empowers Foreign Governments to Sway Federal Elections? « TWI.