Campaign Finance

2020 Election, Campaign Finance

The Scandal of Political Money…

Posted on by mjohnson

(NOTE: This is the first of two parts on political spending by independent expenditure committees and how this practice has perverted American politics.)

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If you were looking to identify a single date in recent history where American democracy made a sharp swerve in the wrong direction, you could do worse than fingering Friday, Jan. 30, 1976. On that day, the U.S. Supreme Court overturned significant parts of the federal campaign finance law put in place in the wake of the Watergate scandal.

To the lasting detriment of rational politics in America, the court held that groups and individuals could raise and spend unlimited amounts on so-called “independent expenditure” campaigns so long as the “independent” groups did not coordinate with a candidate or another campaign.

Not many Americans knew at the time that the decision handed down on that long ago Friday would begin a tumbling of political dominos that would severely distort politics, vastly expand the role of money in politics, breed widespread voter cynicism and lead to a handful of other judicial decisions — the outrageous Citizens United, for instance — that have created a profoundly corrupt system.

If you have come to hate the barrage of “negative” political commercials, the slick mailers and the almost always distorted rhetoric of modern campaigns, you have Buckley v. Valeo to blame. The decision was the foundation stone of modern sleazy campaigns conducted by shadowy groups who employ every measure of deception to hide their donors and their motives.

A landmark 1976 decision

The plaintiffs in the Buckley case were an odd collection of interests, as diverse as the decision was consequential. The Buckley was James L. Buckley, brother of the conservative writer and magazine editor William F. Buckley. Jim Buckley, a Yale Law grad, was a genuine political fluke, elected to the U.S. Senate from New York on the Conservative Party ticket in 1970 with just 39 percent of the vote.

Buckley’s political fluke is owed to his defeat of a Senate incumbent, moderate Republican Charles Goodell, father of current National Football League Commissioner Roger Goodell. Goodell had been appointed to replace Robert Kennedy by then-Gov. Nelson Rockefeller following Kennedy’s assassination in 1968.

Buckley was a one-term senator and later Reagan administration official and federal judge. His name remains, however, most firmly identified with the 1976 court decision.

James L. Buckley a plaintiff in a case challenging federal election law in 1976 that legalized the “independent expenditure” campaign

Two of Buckley’s fellow plaintiffs in suing the Federal Election Commission were liberal Minnesota Sen. Eugene McCarthy, who had made his reputation as the poetry-writing contrarian who helped force Lyndon Johnson out of the presidential race in 1968, and Stewart R. Mott, an eccentric multimillionaire who pumped thousands of dollars into McCarthy’s campaign and other liberal causes. Mott’s support for what a Richard Nixon aide called “radic-lib candidates” earned him a spot on Nixon’s “enemies list.”

McCarthy and Mott had nothing in common ideologically with Buckley, but they all shared an interest in spending lots of money on politics, preferably with as little regulation as possible. The Supreme Court largely sided with them in Buckley, a landmark that one legal analyst called “an exceptional case — a 143-page … behemoth with 178 footnotes, five separate opinions of the eight justices involved, writing eighty-three more pages, which with appendices yielded a 294-page reported decision.”

By the time the Supreme Court decided the subsequent Citizens United case in 2010 — that decision overturned 100 years of settled law by declaring that unlimited corporate and labor union political spending is protected as free speech — Buckley had been cited in more than 2,500 legal cases relating to campaign spending.

To read the decision or listen to the now available tapes of oral arguments is to realize how confused the justices were about the nexus between political money and political corruption. Justice Byron White did understand the linkage and argued that Congress had been correct in identifying a compelling need to limit political money.

Supreme Court Justice Byron White warned against “a mortal danger” involving politics and money

“The act of giving money to political candidates,” White wrote in a dissent, “may have illegal or other undesirable consequences: it may be used to secure the express or tacit understanding that the giver will enjoy political favor if the candidate is elected. Both Congress and this court’s cases have recognized this as a mortal danger against which effective preventive and curative steps must be taken.”

White’s argument did not prevail and, as the Congressional Research Service noted in a 1981 report (updated in 1984) about the subsequent rise of “independent” political action committees, “By lifting the limits on (independent) expenditures, while leaving intact those on direct contributions to candidates, the court’s ruling created a major avenue for individuals and groups seeking to influence elections beyond the level permitted under” federal law.

Before Buckley political action committees (PACs) played a minor role in American politics. Now they are American politics.

For example, one estimate holds that $55 million, much of it from out-of-state interests shielded from disclosure, will be spent on television advertising during the Maine U.S. Senate campaign of Republican Susan Collins and her Democratic challenger.

Maine Republican Susan Collins’ Senate re-election campaign will likely see more than $50 million in spending

Maine is, of course, a key battleground that will help determine which party controls the Senate after 2020. But even given that significance, the Cook Political Report’s Jennifer Duffy calls the $55 million “an astonishing amount for a state with three relatively inexpensive media markets.” Duffy notes that a year before the election, “Democrats have outspent Republicans almost two to one and nearly all that money has been on ads criticizing Collins.”

Outside money, much of it impossible to track, is flooding Iowa’s Senate race and the Republican incumbent, Joni Ernst, has been trying to swat away allegations that an “independent” group helping her and run by some of her former aides has violated the law prohibiting coordination between the candidate and an outside PAC.

Politico reported recently that President Donald Trump is being victimized by an array of groups raising money in his name, but doing with the money God knows what. In an 18 month period, “$46.7 million flowed into close to 20 Trump booster organizations, structured as PACs or political nonprofits and with names like Latinos for the President and MAGA Coalition.”

All this money, of course, is virtually impossible to trace or track, which is after all why we have disclosure. Voters are supposed to be able to see who is supporting a candidate and evaluate for themselves where the money is coming from. But the practical ability to do that is a rude fiction, as is the myth that “independent” committees don’t collude — often very openly — with candidates.

Every Senate race in the country this year will have similar stories to what we’ve already seen in Maine and Iowa because the political money system is broken, unaccountable and, yes, corrupt.

And sadly the corruption is coming to a city hall near you, which is a story for next week.
 

Campaign Finance, Idaho Politics

Sunshine…

Posted on by mjohnson

The half-life of a failed political campaign is normally about 15 minutes. You lose and you’re forgotten pretty quickly even though the lessons of a losing campaign can sometimes be more enduring that what we learn from a winner. 

Last year’s losing Democratic campaign for governor of Idaho is such a case. Since political memories fade quickly – remember when Mexico was going to pay for the wall and a certain candidate was going to release his tax returns – let me offer a reminder. 

After a fairly brutal three-way Republican primary last year, Brad Little emerged from the GOP field to take on former state representative Paulette Jordan who had won a two-person Democratic primary. Little then cruised to a general election victory over Jordan, winning, to no great surprise, nearly 60% of the vote to Jordan’s 38%. Three other candidates divided the rest. 

Paulette Jordan and Brad Little debate during their 2018 campaign for Idaho governor.

Jordan began the post-primary campaign riding pretty high, stimulating a lot of national press interest in her personal story and seeming to have a chance to make it an interesting contest. Little, meanwhile, needed to re-unite a somewhat divided GOP. By the time summer rolled around Jordan’s campaign was floundering. The campaign manager quit, one of several staff departures, when it was revealed that Jordan had established a federal “super PAC,” a political action committee able to raise and spend unlimited amounts of money in support or in opposition to candidates. And we then learned that the Jordan campaign had required Trumpian “non-disclosure” agreements with campaign staff.

Jordan’s campaign finance report covering the period from the primary to October 1 was unlike any I’ve seen in looking at those reports for nearly 40 years. She eventually raised and spent over $1.2 million on out-of-state consultants, lots of out-of-state travel and a variety of hard to understand shell corporations, including a one in Wyoming that drew particular attention. Almost nothing was spent on television. 

A lot of Jordan’s spending, as I and others wrote at the time, was just odd and seemed seriously disconnected from any real effort to convince 300,000 or so Idaho voters – the number Jordan needed to squeak to a win – to actually vote for her.

As the Associated Press wrote last October: “The company registered in Wyoming as Roughneck Steering Inc. drew attention among Jordan’s hundreds of expense entries because Wyoming’s laws don’t require the officers of a company to be made public with the initial filing. That made it impossible to know from the finance report who was behind the company and why Jordan sent it $20,000.”

Hiding details of a company registered in Wyoming is as easy as hiding the checkbook

Roughneck Steering registered with the Wyoming Secretary of State on July 26, 2018 as a for profit domestic corporation. Two $10,000 payments to the company from Jordan’s campaign followed, along with a confusing explanation from the campaign as to what was done for the money and who did it. The campaign said polling work was involved, undertaken apparently by Republicans who could not risk being exposed for helping a Democrat. Hence the shell company. 

Under the laws of the state of Wyoming, Roughneck Steering was required to file an annual report for the Wyoming Secretary of State on July 1, 2019. That first year report requires, unlike the initial corporate filing, more detail about officers of the company. Wyoming grants a 60-day grace period beyond the filing date so that a company has even more time to make its filing legal. 

On September 8, 2019, the Wyoming Secretary of State declared Roughneck Steering “inactive” and “administratively dissolved.” As a helpful employee in the office in Cheyenne told me this week the company has basically ceased to exist. 

Here’s why this ancient political history still matters. The purpose of Idaho’s campaign finance law is disclosure, real transparency. A run of the mill voter, a political rival, a supporter or opponent of a particular candidate is supposed to be able to look at a candidate’s reports and figure out where the campaign’s money came from and how and with whom it was spent. That’s why the reports are typically called “sunshine” reports. Sunshine is a disinfectant. 

If the Jordan campaign is able – and clearly they have been able to date – to get away with sending money to a shell corporation at a post office box in Wyoming in a way that intentionally hides the beneficiary of the payment and how the money was spent that’s not anyone’s definition of disclosure. 

Let’s assume for a moment the Jordan campaign really did pay some Idaho GOP operatives through this Wyoming shell company. We can assume it, because we’ll likely never know for sure. But where does such subterfuge stop? 

Imagine that some future campaign actually wanted to launder some campaign cash. Say a candidate collects a hundred grand from campaign contributors, but really wants to put that money in his or her own pocket. Just set up a shell corporation in Wyoming, a state notoriously sympathetic to corporate slight of hand, and report the $100,000 “expenditure” as “campaign consulting” or “research” or even “polling,” and then have your shell company hand the cash back to the money-laundering candidate. 

The Idaho Secretary of State is in charge of the state’s campaign finance law, but as a practical matter does little to see that the law is enforced

The state of Wyoming will be none the wiser. Idaho’s Secretary of State, even if there is suspicion of something untoward, has little ability to investigate. A loophole is created, or better yet has already been created. 

The remedy is simple: require under the Idaho campaign disclosure law not only identification of a company or individual that a campaign has spent money with, but also who owns the company and what specifically the company or individual did to warrant the expenditure. As with all campaign finance scandals from Nixon’s illegal contributions from the dairy industry in 1972 to Donald Trump’s apparent payments to silence various women prior to the 2016 election, when campaigns hide the source or destination of money it’s always because they can’t tolerate sunshine. 

By the way that super PAC Jordan established last year was also registered in Wyoming at the same address and under the same rules as Roughneck Steering. It, too, has been declared inactive and dissolved by the state of Wyoming. The PAC reported only one contribution to date – $25,000 from the Coeur d’Alene Tribe last year – and only one expenditure, $3,000 to an accountant in California. The Federal Election Commission’s records show no contribution from the PAC to any candidate. 

Campaign Finance, Idaho Politics

A Black Box of Questions…

Posted on by mjohnson

My Lewiston Tribune column of October 19, 2018 

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Paulette Jordan, the Democratic candidate for governor of Idaho, has created in a way rarely seen in the state’s recent political history a small donor fundraising juggernaut. Jordan has tapped into thousands of small donors in Idaho and across the country. From Clinton, New York to Longview, Washington from Aiken, South Carolina to Denver, Colorado people have been sending her money and in the process she has raised more than $1 million, a respectable figure for an underdog Democrat in Idaho.

Idaho Democratic candidate Paulette Jordan

A substantial percentage of Jordan’s fundraising haul has come from small, individual contributions, some as small as $5 and many less than $100. And many donors have given to her campaign multiple times. It is the kind of broad based fundraising that candidates dream about. Jordan’s contribution profile differs dramatically from her opponent, Lt. Governor Brad Little, who has mostly relied on the standard sources of GOP campaign cash – industry PACs, businesses, lobbyists and well-heeled supporters from across the state. As a result Little has outraised the Democrat by a lot and in the home stretch has held on to more cash for a final push.

Yet there is a confounding mystery at the heart of Jordan’s campaign: little of her cash seems to have made its way into what you might call a real campaign – direct mail, billboards, TV, radio, newspapers and social media. Rather hundreds of thousands of dollars have been spent on out of state consultants and, as the Idaho Statesman’s Cynthia Sewell documented recently, on food, travel and lodging – much of it out of state – by the candidate.

Jordan’s pre-election campaign finance disclosure report is simply one of the most unusual, which is to say unprecedented, documents of its type since Idaho voters mandated campaign finance disclosure 1974. To say the least the report raises more questions than it answers, while the campaign refuses to provide answers to basic questions about how and why it has spent its money. Consider a just few questionable details from Jordan’s October 10 report:

The campaign has paid at least four out-of-state companies in Wyoming, Vermont and Minnesota nearly $50,000 for what it says are various consulting services. Yet the companies appear to be “shells” with no actual place of business only a mailing address and a contact listed as a “registered agent.” One company is identified by the campaign as a Limited Liability Company with a post office box in Peru, Vermont, but the Vermont Secretary of State has no record of the company existing. Another company that has received payments from Jordan’s campaign lists its address as an apartment in Minneapolis.

One company with a Cheyenne, Wyoming address, lists Jordan’s campaign manager, Nathanial Kelly, as its president, secretary, treasurer and only director. Kelly is the same guy who recently tried to explain away why the campaign required its staffers to sign non-disclosure agreements. Kelly’s Wyoming firm only became active in August just about the time Kelly has said he was helping the Coeur d’Alene Tribe, with Jordan’s encouragement, to establish a federal super PAC.

A second Wyoming firm that received two $10,000 payments from Jordan since August is registered at the same Sheridan, Wyoming address as the federal PAC. This firm has not filed more complete information, including the names of incorporators, with the state of Wyoming because it isn’t required to do so until a year after it is formally registered. Meanwhile, the campaign insists that none of its resources have gone to helping establish the federal PAC, which Jordan has refused to discuss beyond criticizing the reporting that disclosed its existence.

The Jordan campaign has employed two different digital fundraising firms both located in Washington, D.C. and paid them more than $110,000. One firm started work after Jordan won the May primary. The campaign also reports payments to two separate campaign reporting and compliance firms with one firm joining post-primary. The campaign, which has had two high profile staff shake ups since May declined to provide information on how many different employees it has paid – it appears upwards of a dozen – has also utilized two different payroll services firms, but has also paid staff directly. (The campaign refused my request to provide information on who has been paid and how.) These set ups beg the question: why are two firms doing what appears essentially to be the same job.

The campaign also reported a $1,000 “contribution” to a California entity that lists the same Novato, California address as one of the reporting and compliance firms. When I asked who received the contribution I was told the money went to “an elected official who is consulting for the campaign as well.” A spokeswoman at the Idaho Secretary of State’s office says failure to disclose the recipient of a contribution from an Idaho campaign committee is a violation of Idaho law. That obviously is a problem for Jordan’s campaign, but her small dollar donors might also be justified in asking why would an Idaho campaign scraping for every dollar make any contribution to a candidate in California?

Campaigns, we all know, cost money. Personnel, technology, advertising and travel require money, the kind of money Jordan has been raising. But the real question for the candidate – and her thousands of small donors – is why so little of the more than one million dollars she has raised has been spent in a way that might actually reach, inform and motivate Idaho voters?

The campaign has talked about the importance of transparency and accountability in state government, but that clearly doesn’t extend to her campaign. Jordan’s latest campaign finance report is a black box of questions, contradictions and head scratching inconsistencies. It all begs another question: where has all the money gone and why?

 

Baseball, Campaign Finance, Christie, Poetry, Politics, Wall Street

The Appearance of Influence

Posted on by christian

       “…this Court now concludes that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption. That speakers may have influence over or access to elected officials does not mean that those officials are corrupt. And the appearance of influence or access will not cause the electorate to lose faith in this democracy. “ – Justice Anthony Kennedy in Citizens United v. Federal Elections Commission, 2010.

Generally speaking there are two types of political scandal: the sex scandal and the money scandal.

The first type of scandal, perhaps for obvious reasons, gets more attention from public and press. Think of Bill Clinton and the blue dress, Mark lewinsky-beretSanford hiking the Appalachian Trail all the way to his Argentine mistress, General David Petraeus going all in with his biographer (and sharing much more than pillow talk) and, of course, the continuing saga of former Senator Larry Craig’s wide stance in the Minneapolis airport. One could go on and on – Packwood, Weiner, Edwards – it is a long, long and bipartisan list.

The other type of scandal – the money scandal – is generally less memorable, but also more important. Political sex sells and fuels late night comedy. Political money merely corrupts. Like political sex scandals, political money scandals are a bipartisan problem and unlike what Justice Kennedy naively (or cynically) wrote in that Supreme Court decision, vastly expanded access to money and private influence in our politics has, and will continue to erode “faith in this democracy.”

Several recent cases still in the news make the point: Illinois Representative Aaron Schock, former Oregon Governor John Kitzhaber, would-be president Hillary Clinton and Senator Robert Menendez or, if you prefer, Governor Chris Christie of New Jersey are in the top-of-mind scandal class. (It probably goes without saying that in any list of political scandals involving money, New Jersey is routinely entitled to two mentions.)

Schock is the junior Republican from Peoria who first came to national prominence when a Washington Post story reported on the elaborate SchockDownton Abbey-like redecorating of his Capitol Hill office, a real estate makeover that likely constituted an illegal gift. It didn’t take long for the deep red walls and Edwardian touches to gave way to more important insights into Schock’s extensive connections to his wealthy donors. As the Post reported recently, the Congressman’s Lord Grantham moment “prompted a flurry of stories about his use of private charter planes that he says are to get around his district, concert ticket purchases, trips overseas and other forms of travel.” Expensive tastes are hardly an indictable offense, but failing to report gifts from donors or using their airplanes improperly may well be and Schock has now announced his resignation, likely just before his indictment.

There have been so many twists and turns to the sad and bizarre Kitzhaber saga in Oregon that is has become difficult to keep track of all of them, but it seems clear that an underlying theme in the tangled web that drove the four-time elected governor from office was…wait for it…money.

Kitzhaber’s fiancée seems to have been obsessed by making money and oblivious to how her public role created conflicts, or worse, for the couple. In another case, as reported by Willamette Week, Kitzhaber courted one of his biggest campaign donors, a developer who had given candidate Kitzhaber more than $65,000 since 2010, by attending a “summit” organized by the donor, who incidentally regularly complained to the governor about state environmental regulators. As the paper noted following the “summit,” which Kitzhaber had flown to on the donor’s private plane, the then-governor “asked a fundraising consultant how much money [the big donor] had given his re-election campaign so he could hit up another summit attendee…for the same amount.”

The Hillary Clinton case is even more obtuse, but no less troubling, involving Clinton the Secretary of State, Clinton the world famous mover and shaker of the Clinton family foundation (which has received millions from corporate and foreign sources) and coming to a campaign trail near you soon, Clinton the presidential candidate. If you think the recent flap over Hillary’s emails (particularly the ones that have been destroyed) doesn’tReadyPoster involve the intersection of her official work at the State Department and her work, as well as her husband’s and daughter’s, with the high flying Clinton foundation, and now the need to raise a billion dollars or so to run for the White House, well I have some aluminum siding I’d like you to consider.

A CBS New investigation found that one donor to the Clinton Foundation, “Rilin Enterprises – pledged $2 million in 2013…The company is a privately-held Chinese construction and trade conglomerate and run by billionaire Wang Wenliang, who is also a delegate to the Chinese parliament…The firm owns a strategic port along the border with North Korea and was also one of the contractors that built the Chinese embassy in Washington. That contract is a direct tie to the Chinese government.” We haven’t heard the last of these kinds of stories and she hasn’t even announced.

Senator Menendez’s scandal seems to involve more garden-variety type corruption – doing big favors for a big donor. For months the Justice Department has been looking into the connection between the Soprano State senator and a wealthy South Florida eye doctor, Salomon Melgen, who clearly loves Menendez. As Slate has noted, the doc and his family “gave $33,700 to Menendez’s 2012 re-election campaign, as well as $60,400 to the Democratic Senatorial Campaign Committee while Menendez served as its chairman during the 2010 election cycle. But the biggest contribution by far was a series of three payments totaling $700,000 that Melgen’s business gave in 2012 to Majority PAC, a Democratic super PAC that in turn shoveled nearly $600,000 toward Menendez’s re-election that year. Melgen also paid for two free trips that Menendez took in 2010 to Melgen’s seaside mansion in the Dominican Republic,” a gift that Menendez did not initially disclose, but for which he later paid $58,500 to reimburse.

And what did the donor get beside the stimulating company of a United States Senator? “In recent years,” Slate reports, “Menendez repeatedly interceded on Melgen’s behalf in a dispute with the Centers for Medicare and Medicaid Services over allegations that Melgen had overbilled Medicare for millions of dollars for injections he was performing on patients with macular degeneration. Menendez has also been pressing on Melgen’s behalf to help him see through a deal he has to sell port-screening equipment to the Dominican government.”

The latest Chris Christie greasiness in New Jersey rings of the kind of thing that the notorious Boss Tweed did across the Hudson more than a century ago – hand out tax breaks, contracts and other goodies to the politically well-connected and then sit back and reap the rewards. As the Associated Press reported this week, on Governor Christie’s watch, “New Jersey has authorized more than $2 billion in economic development tax breaks since 2014, often to corporations with notable political connections. One grant went to a developer who owes millions of dollars on an unpaid state loan.”

Christie’s administration lavished more than $600 million in tax breaks on Camden, New Jersey, (population 77,000) an amount four times the city’s annual budget. As AP notes, “As money has flowed to development in Camden, some trickled back into politics. Camden tax incentive recipients donated more than $150,000 to the Republican Governors Association during the time Christie ran it. But no donations are as notable as those from Pennsylvania developer Israel Roizman. Last February, the state awarded tax incentives worth $13.4 million to Broadway Associates 2010 LLC, a real estate development company he controls. The project in question: refurbishing 175 low-income housing units that deteriorated under two decades of Roizman’s ownership.”

It turns out Roizman – and here is proof that the acrid stench of corruption smells of bipartisanship – was a big “bundler” of campaign cash for Barack Obama, but also thoughtfully “donated $10,000 to the Christie-led [Republican] governors association in late 2013, a few months before receiving his tax breaks. Last year, he gave the group the same amount.” Meanwhile, the developer owes the New Jersey housing agency “$6.2 million in unpaid loans on another Camden housing project.”

There may be perfectly simple explanations for all these unrelated cases and it would not be correct to say the corrosive Citizens United decision alone ushered in a new era of corruption in our politics. The country’s convoluted campaign finance apparatus is so complex that it has spawned an entire industry of lawyers and consultants who make it their life’s work to navigate the system.

Still, to believe that cases like Schock, Kitzhaber, Clinton, Menendez, Christie and many others can be innocently explained away, one must accept Thomas Nastthe idea that really wealthy people give money to political candidates simply out of the goodness of their hearts or because of their passionate belief in the candidate or the cause. (Some do, of course, but their commitment could be demonstrated just as fervently by a check for a thousand dollars as it is by donating what for many Americans would be a sizeable bank account.) At the same time the innocent explanation of a situation involving money and politics that also has “the appearance of corruption” demands embracing the idea that candidates, particularly when they are recipients of really, really big checks and personal favors from donors, are totally immune to the concept of quid pro quo. There are many honest politicians, but we don’t make laws – nor did we once limit campaign contributions – because of the honest people.

Political corruption has existed since Caesar and human nature being what it is there will always be some fast buck artist angling for some favor from some powerful person. But with the adoption of the philosophy, sanctioned by the United States Supreme Court, that anything goes when it comes to money and politics we can expect Justice Kennedy to more-and-more be feasting on his words.

Unlimited, largely unregulated money in politics does give rise to both the appearance and the reality of corruption. The excesses will only grow worse over time in direct proportion to the electorate’s loss of faith in this democracy. Makes you long for a good political sex scandal.

 

2016 Election, Campaign Finance, Health Care, Supreme Court

John Roberts: History is Calling

Posted on by christian

The U.S. Supreme Court this week confronts partisan politics and history in a way that will profoundly impact the court as an institution and largely determine the fate of the controversial Affordable Care Act (ACA) – Obamacare.

Supreme CourtIn the curious way that American political history has of not exactly repeating itself, but of regularly returning to the same themes, it is fascinating to consider how the Supreme Court handled a similarly contentious issue 78 years ago. The issue then was different – state minimum wage laws in 1937 versus health insurance today – but the impact on the court as an institution and on American politics is still instructive. Some of the parallels are striking.

If Chief Justice John Roberts hasn’t done so he might want to read up on the back story in the case of West Coast Hotels Co. v. Parrish. The leadership exercised by one of his illustrious predecessors, Charles Evans Hughes, just might be useful for Roberts this week, since how the Chief handles the Obamacare case – King v. Burwell – may determine not only his own legacy but also the court’s standing among American voters.

The Supreme Court became the most controversial issue in American politics in 1937. Re-elected in a landslide in 1936, early the next year Franklin Roosevelt took dead aim at the Supreme Court that had dismantled key fdr.gi.topparts of his New Deal economic recovery program. In one of the most audacious proposals ever suggested by an American president, Roosevelt sent legislation to Congress – a Congress overwhelmingly populated with his fellow Democrats – that would have added six new justices to the Supreme Court. In one sweeping legislative action Roosevelt proposed to both liberalize the Court and at the same time neuter a co-equal branch of the federal government.

Through the long, hot and politically disagreeable spring and summer of 1937, Democrats fought with each, with their president and with Republicans over whether to give FDR what he dearly wanted – a very conservative Supreme Court remade overnight into a liberal supporter of his program. The American Bar Association, the nation’s major newspapers, organized labor and farm groups chose up sides and by the time the fight finally ended Roosevelt had suffered the biggest political defeat of his presidency. The Democratic Party that should have been at the zenith of its power was ripped apart and Roosevelt would never again command a working majority in Congress for his domestic agenda, but the Supreme Court as an institution remained unchanged.

The West Coast Hotels case was part of the reason. The Parrish in the case was Elsie Parrish, a elsiechambermaid at the Cascadian Hotel in Wenatchee, Washington, a hotel owned by the West Coast Hotels Company. Elsie, joined by her husband, filed suit contending that she received sub-minimum wage compensation for the work she performed and she sought to recover the difference between what she was paid and the minimum wage established under Washington state law.

The question presented to the court when the case was heard late in 1936 was whether Washington’s state minimum wage law “violated the liberty of contract as construed under the Fifth Amendment as applied by the Fourteenth Amendment.” In 1923, in a similar case, the Supreme Court had overturned a District of Columbia minimum wage statute on grounds that it violated the Fifth Amendment’s due process clause. Early in 1936, the Court struck down a New York minimum wage law in a case that was almost exactly on point with the issues in the West Coast Hotels litigation. The New York decision was widely seen as a blow to New Deal-era reforms – FDR was incensed by the Court’s ruling  – and the case seemed to offer further proof that the Supreme Court was hostile to nearly any type of regulation of business.

When the Washington State case came before the Court in December 1936 it wouldn’t have taken a clairvoyant to predict the outcome. But in the interval between the two nearly identical 1936 cases, something changed. What changed had been entirely political. Roosevelt was overwhelmingly re-elected by American voters who were clearly showing their support for his policies. In simple political language the conservative majority on the Supreme Court suddenly found itself dramatically at odds with widespread public sentiment.

A Switch in Time…

When the West Coast Hotels case came before the court in December 1936 – remember this was after FDR’s big re-election win – Chief Justice Hughes, who had been in the minority in the New York case,245px-Owen_J._Roberts_cph.3b11988 prevailed upon Associate Justice Owen Roberts – no relation to the current Chief, but like him a Republican appointee to the Court – to change his mind and wipe out the precedent that the Court had re-affirmed just ten months earlier. With the Chief Justice writing the majority opinion, the court upheld the Washington state law – the vote was 5-4 – and Elsie Parrish, the Wenatchee chambermaid, found that the state minimum wage law really did apply to her.

Next comes one of the best examples I know of how timing impacts politics. While the West Coast Hotels case was heard just before Christmas 1936, and Justice Roberts indicated in a conference with fellow justices two days later that he would change his mind, the decision in the case wasn’t made public until the following March, weeks after Roosevelt proposed his sweeping and controversial plan to reshape the Supreme Court.

To the public and press it looked like the Court was knuckling under to political pressure from a hugely popular president, when in fact the Court, under Hughes’ skillful leadership, had already made up its mind to directly reverse its earlier precedent in minimum wage cases. Still it was widely said that Robert’s switch helped save the Supreme Court with one wag saying, “a switch in time saved nine.” The great historian William Leuchtenburg called it the “greatest constitutional somersault in history.”

ihughec001p1In reality, Hughes was a shrewd student of politics and had correctly read the election returns as a strong indication that public opinion was moving in the direction of a more activist role for the government in regulating the economy and American business. Hughes, very much a Republican and conservative, even admitted that the Court could no longer serve as “a fortress” against public opinion. In order to head-off the kind of sweeping political change that Roosevelt and others had in mind for the Court, Hughes knew his beloved Court had to change and lobbying Justice Roberts gave him his fifth vote. Hughes put his considerable muscle as a great Chief Justice behind his belief that the Court had to change in order to sustain its integrity and independence. Subsequent decisions by the Court in 1937 to uphold the Social Security Act and the National Labor Relations Act further helped doom Roosevelt’s court packing plan and at the same time helped maintain public confidence that the Court was able to respond to national problems during the greatest economic crisis the country has ever faced.

King v. Burwell…

The case at question before the Supreme Court this week – King v. Burwell – turns on just four words buried deep in the controversial 955 page legislation passed by Congress in 2010. The challenge to the ACA centers not on questions of constitutionality or the application of Congressional or Executive authority, but whether every qualified American is entitled to an insurance subsidy whether they enrolled for health insurance through a state or a federal insurance exchange seems certain to thrust the court into the middle of the most contentious political issue in recent history.

In taking this case the court has decided it must rule on what Congress meant when it wrote those four words – “established by the state” – into the law.

As David Cole wrote recently in The New York Review of Books: “The challengers’ statutory argument is deceptively simple. A subclause of the tax code setting forth a formula for calculating federal income tax credits provides that the amount of the credit depends on the number of months the taxpayer has been enrolled in a health insurance plan purchased on an insurance exchange ‘established by the State.’ Since an exchange established by the federal HHS is not an exchange ‘established by the State,’ they maintain, the law precludes subsidies for all residents of the thirty-four states that have exchanges created by HHS. The government counters that exchanges ‘established by the State’ is a legal term of art, and when read in conjunction with other parts of the ACA, it encompasses both exchanges that states themselves established, as well as exchanges that the states chose to have HHS create for them in their respective states.”

As a practical matter the health insurance exchanges in 34 states operate on the platform established by the federal government. If the court decides those exchanges are not subject to the subsidies – boom. Consider it the nuclear option. An estimated 7.5 million people in those 34 states will lose their subsidies, not be able to afford insurance and the great Obamacare experiment will tip over like Humpty Dumpty falling off that famous wall.

The committed opponents of the health insurance law will, of course, celebrate the death of the act they have tried to destroy once before in front of the Roberts’ court and more than 50 times on the floor of the U.S. House of Representatives. Should those challenging the law prevail it will be seen correctly as a huge victory for conservatives who hate Obamacare and a crushing defeat for President Obama’s signature legislative accomplishment. The impacts on the Supreme Court could be even more earth shaking.

RobertsRoberts is the man in the hot seat, just as Charles Evans Hughes was in 1937 and we already know he did some personal legal jujitsu to accommodate his own very conservative views to the political will behind the ACA when he cast the deciding vote to uphold the Act when it first came before his Court. In fact, there is one school of thought that Roberts has already found a way to uphold Obamacare from the latest challenge by invoking a very conservative legal principle – standing. It may well be that the plaintiffs in the King case don’t have the legal standing to even bring the case. We’ll see.

Hughes’ task in the New Deal-era was to save the Court from the kind of political interference Franklin Roosevelt had in mind. Roberts’ task today is to keep the Supreme Court, with its conservative majority, from using an extraordinarily narrow issue to kick the increasingly popular health care law in the ditch. Such a ruling would certainly please the legion of Obamacare haters, but at the cost of denying health insurance to several million Americans who now have coverage.

Conservatives who hope the Court will kick things in the ditch decry what they call “executive lawmaking” that “poses a severe threat to the separation-of-powers principles enumerated in the Constitution.” And they contend the president “has acted on the belief that legislative gridlock allows him to transcend his constitutional limits. A ruling that upholds this behavior would set a dangerous precedent for the nascent health-care law, which will be implemented for years to come by administrations with different views. More troubling, such a precedent could license virtually any executive action that modifies, amends or suspends any duly enacted law.”

But in the King case the dangerous behavior – you might read judicial activism – would be for a Supreme Court to impose its own notion of how an IRS rule ought to be applied; replacing its judgement for that of the branch of government changed with actually carrying out the terms of the law.

Long-time Supreme Court watcher and New York Times columnist Linda Greenhouse argues that nothing less than “the honor of the Supreme Court” is at stake in the King v. Burwell decision. “To reject the government’s defense of the law,” Greenhouse wrote recently, “the justices would have to suspend their own settled approach to statutory interpretation as well as their often-stated view of how Congress should act toward the states.”

At pivotal moments in American history various Chief Justices have guided the Supreme Court through some very hard cases. Hughes did it in the 1930’s. Earl Warren did it in the 1950’s with the Brown v. Board of Education ruling that separate but equal simply could not be Constitutional. Warren Berger did it in the 1970’s when he lead a unanimous Court that required Richard Nixon to turn over his White House tape recordings. In each case the integrity of the Court, as well as its ability to transcend, while at the same time respond to politics, was at stake. It’s also worth noting that in these historic cases a Republican chief justice appointed by a Republican president moved the Court in a new and important direction, while also keeping the Court out of the intense crossfire of partisan politics.

The same issues are at stake this week. Ironically, in reading the old West Coast Hotels decision, I noticed that one of the attorneys of record was named – John Roberts. For the Chief Justice history really is calling.

 

2014 Election, Campaign Finance, Poetry, Tamarack

The Winner Is…

Posted on by christian

How far we have come, or perhaps fallen.

The Republican romp across the electoral map yesterday may or may not prove to be a defining moment in the “re-branding” of the national GOP in advance of the 2016 presidential election to which all eyes now turn, but it most assuredly marks the first national election where the candidates – Republican and Democratic – lost control of their campaigns to the growing forces of dark money, secretly spent.

Barack ObamaThe 2014 mid-terms will be dissected by pundits to assess the real message of the dispiriting campaigns. Surely the president’s vast unpopularity is a big part of the story, so too the fact that Republican Senate candidates generally won in states where Mitt Romney ran well two years ago. Barack Obama long ago lost control of his presidency thanks to inattention, missteps, lack of political skill, or just a remarkable inability to turn clumsy GOP roadblocks into hurdles that he could clear. It’s also obvious that America was not quite ready yet for “post-racial” politics after Obama’s stunning election in 2008. In fact, part of Obama’s legacy may turn out to be that he finally helped complete Richard Nixon’s “southern strategy” of making all the states of the old Confederacy the most dependable part of the Republican base.

Still the real and lasting import of 2014 is hidden right in plan sight on our televisions – the attack ads, the depressing repetition of half-truth and distortion that is the uncontested central feature of our politics. Of course, all the distressing multi-billion dollar sleaze is financed by more money than ever before from fewer and fewer sources about whose motives we can only make educated and cynical guesses.

Back to the Future…

I’m betting not one American in million has heard of William Scott Vare of Pennsylvania, but the pudgy machine politician of the WilliamVareearly 20th Century makes as good an object lesson as any over which to scratch our heads and wonder again what’s happening as a result of the pernicious influence of money – really vast amounts of money – in our politics.

Before Franklin Roosevelt’s revolution reordered the nation’s political map in the 1930’s, Pennsylvania was a dependably Republican state dominated by old style machine politics. The GOP machine chose the candidates, lined up the money, managed the voting and sent its favorites to Harrisburg and Washington. In 1926 it was William Vare’s turn to reach the big time. Vare had spent most of his life moving through the chairs of Pennsylvania politics – Philadelphia city jobs, recorder of deeds, state legislature, then Congress. He was the Republican candidate for the Senate in 1926 when the odor of corruption hanging around him finally wafted into the U.S. Senate.

1101330227_400In a wonderful little essay on the Vare case, the Senate historian says that Mississippi Democratic Senator Pat Harrison took to the Senate floor in 1926 to denounce the influence of vast money involved in the primary election won by Vare in Pennsylvania. “Harrison pointed to reports that a staggering $2 to $5 million had been poured into the campaign and reminded his colleagues that in an earlier election a far smaller amount expended by Michigan’s Truman Newberry had been labeled excessive.” Imagine that. In 1926 the U.S. Senate actually debated whether too much money in a Senate race was a bad thing.

Not only that but after a series of Senate investigations stretching over more than three years, William Scott Vare was denied his seat in the Senate when a strong bi-partisan majority – 66 to 15 – determined that Vare’s vast expenditures from dubious sources were “harmful to the dignity and honor of the Senate.” These were the days before there was much of any type of campaign finance disclosure, but the Senate did determine, big surprise, that most of the money spent in Pennsylvania came from a handful of extremely wealthy individuals, including the Bill Gates of his day Treasury Secretary Andrew Mellon. Imagine that. The Senate actually once policed its own membership when presented with proof that one member had simply spent too much money to secure his election.

A Cancer on Democracy…

One gets the sense that American’s instinctively know that vast, unregulated amounts of money, secretly contributed and used almost exclusively to pummel one candidate or the other is the main ingredient in our politics of cynicism, dysfunction and hyper-partisanship. The numbers back up what instinct suggests:

The recent election involved the expenditure of more than $4 billion, much of it untraceable as to source. The North Carolina Senate race became the nation’s most expensive with $65 million spent. In Arizona, which had an open gubernatorial seat, the outside, “dark” money swamped what the two principle candidates were able to raise and spend. One Arizona reporter said trying to unravel the Andrew-Melonstrands of money resembled “a Russian nesting doll” where every disclosure leads to another mystery.

As if we didn’t already know that a handful of modern day oligarchs – the Andrew Mellon’s of the 21st Century – have come to dominate American politics, the Brookings Institution has produced a helpful guide to the guilty – the U.S. Billionaires Political Power Index. The Index is led by the Koch Brothers, Michael Bloomberg, Tom Steyer, Sheldon Adelson and on and on. The Koch boys spent $240 million this go round, Bloomberg about $50 million, Steyer about $55 million. Look at the list, see who these folks are supporting and draw your own conclusions about who is shaping American politics and policy.

Republicans had a big day Tuesday and Democrats took a real whipping, but the real winner was money. It may take a few more election cycles for public disgust at all this excess to finally begin to register, but it will happen. Just as William Vare perverted American democracy with vast amounts of money in the 1920’s and Richard Nixon used his secret stashes of campaign cash to try to keep the Watergate burglars from talking in the 1970’s, too much money in politics eventually leads to scandal. It will happen again, perhaps already has happened and we just don’t know yet.

In the post-Watergate period of American politics there were two schools of thought about political money. One view held that the amounts and sources of money should be heavily regulated to prevent politicians from being too beholden to any one source of campaign cash. The other view held that the amounts of money weren’t a problem as long as there was real transparency about where the money came from and how it was spent. Now post-Citizens United the U.S. Supreme Court has left us with neither approach – no limits and no disclosure – and Mitch McConnell can celebrate both his rise to majority leader and the triumph of the kind of unregulated political money that he has long championed.

Rather than limits and sunlight controlling political money the American democracy increasingly resembles Putin’s Russia or a Central American banana republic where a few really, really rich people lavish their money on candidates and causes.

Some will argue that American democracy is so resilient that it can withstand the corrupting nature of too much money from too few people, and one hopes against all evidence of how human nature works that such might be the case. What the system cannot survive, however, is a growing belief among the voters that their individual role in the process is being systematically replaced by the ability of a few billionaires to write massive checks to advance their own narrow, special and personal interests. That is not democracy, but we are about to see what it does to democracy.

 

2014 Election, American Presidents, Andrus, Baseball, Campaign Finance, FDR, Health Care, Obama, Politics, Tamarack

Playing the Hand

Posted on by christian

Patient-ProtectionI’m not sure, but this photo may be the last time Democrats smiled about the Affordable Care Act or, if you prefer, Obamacare. President Obama put his signature on his signature legislative accomplishment on March 23, 2010 and, until the last few weeks, from a political standpoint the news has been pretty awful.

First the admissions: Democrats – thank Nancy Pelosi as well as the president for this – completely lost control of any coherent message about the law. Republicans did a masterful job of characterizing the ACA as government run amok. Obama, so the story goes, has Socialized health care in America and shredded the Constitution in the process. Sarah Palin chimed in with her nonsense talk about “death panels.” Democrats failed to respond or failed to respond effectively. Obama fumbled, screwed up, mislead, fabricated (chose your word) the business about liking and keeping your health plan. The roll-out was a first-class mess and we all know about the stupid website. Fundamentally the law, thanks to log rolling in Congress with the drug companies, the device manufactures, doctors, hospitals and insurance companies, is a massively complicated pile of legalize. It was almost as though the president and his supporters were saying, “We could tell you how it will work and how you will benefit, but you’d have to get sick first…”

More importantly from a political point of view the supporters of the law, chiefly including the Commander-in-Chief, never adopted a coherent, consistent, engaging message that might have allowed them to talk to the American people about an issue that has been on the agenda of every Democratic president since Franklin Roosevelt. The debate became about process, ideology and partisanship and not about a better more secure future.

In politics, as in corn flakes, you can’t sell an idea without a believable message. The failure to offer a coherent, believable story about the law is nothing short of political malpractice. Critics will say, of course, that the law is such a mess that it can’t be defended or marketed, but I don’t buy that. Even George W. Bush, initially at least, sold the invasion of Iraq. Creating a system for millions of Americans to have health insurance and a more secure life is surely an easier sell than a war.

Still, four years later the law is the law, upheld by the Supreme Court (or at least by five justices), a survivor of a hundred different efforts by Republicans to repeal it or, better yet from their perspective, use it as a blunt instrument to pummel Democrats in another mid-term election. Apparently – crank up the irony meter – Americans now hate the law so much they have signed up in numbers that have even surprised the law’s biggest supporters. The polls tell us the law is a huge loser – although repeal is even more unpopular – and yet the GOP has placed nearly all of its mid-term eggs in the “we hate Obamacare” basket. All of the party’s 2016 hopefuls have bought into the notion that Obama’s law is the worst things since, well, maybe since Social Security, yet they offer nothing in the way of a better alternative.

In one of his pithy and incisive essays Garry Wills points out that supporters of the law will likely never turn the opponents around. Obama, Wills writes, “made the mistake of thinking that facts matter when a cult is involved. Obamacare is now, for many, haloed with hate, to be fought against with all one’s life. Retaining certitude about its essential evil is a matter of self-respect, honor for one’s allies in the cause, and loathing for one’s opponents. It is a religious commitment.”

Wills reminds us that Social Security was once almost as hated as the ACA, but somehow nearly 80 years on it still stands. “Repealing Obamacare will eventually go the way of repealing the New Deal,” Wills opines. “But the opposition will never fade entirely away—and it may well be strong enough in this year’s elections to determine the outcome. It is something people are willing to sacrifice for and feel noble about. Creeds are not built up out of facts. They are what make people reject all evidence that guns are more the cause of crime than the cure for it. The best preservative for unreason is to make a religion of it.”

The editorial page of the Wall Street Journal with an almost daily discourse on the “failures of the law” or any given George Will column easily serve as the Bible for this new religion. Will’s most recent column excoriating the law and the president concludes with this sweeping indictment of all things Obama: “progressivism is…a top-down, continent-wide tissue of taxes, mandates and other coercions. Is the debate about it over? Not quite.” Reads like a sermon to me.

But let’s talk politics. If Garry Wills is right (and George Will is his proof point) and it follows that Republican voters who have made a religion out of hating Obamacare are the most likely to turn out and vote in the November Congressional elections, what are Democrats to do?

They have two basic choices: Continue to flounder around and try to pretend they can whistle their way past the political graveyard without defending Obama’s law or they can embrace the obvious and begin – finally – to vigorously defend the law and its impact. One of this year’s imperiled Democrats, Louisiana Sen. Mary Landrieu, has adopted Option Two.

“It’s a solid law that needs improvement,” Landrieu told the Washington Post. “My opponent [Republican Bill Cassidy] offers nothing but repeal, repeal, and repeal. And even with all the law’s setbacks, we’re seeing benefits for thousands of people in Louisiana.”

Landrieu continued, “I think the benefits that people have received are worth fighting for.” She citing an end to discrimination against preexisting conditions and extended coverage for young adults on parents’ plans. ”I think Bill Cassidy is going to be at a distinct disadvantage. He has insurance, but he’s also denying it to the 242,000 people” who would qualify if Louisiana expanded Medicaid as it can opt do under the Affordable Care Act.

Her opponent, Landrieu says, “also wants to take coverage away from tens of thousands who have gotten it for the first time.”

There is an old adage in politics that holds “being for something is better than being against something.” Democrats don’t have a choice. They can try to campaign this year by being for a law that admittedly is very controversial and almost universally misunderstood, but that is also of obvious advantage to millions of Americans or they sink again into the defensive crouch they have largely adopted since that smiling day back in March 2010.

Republicans are agin’ it. We know that for certain. Yet, voters must be just as confused about where Republicans stand on issues – providing health care for millions of uninsured, expanding Medicaid, keeping young folks on their parents insurance plans longer and providing coverage for preexisting conditions – as they are confused about what is and isn’t part of the controversial law. This is ground, as Sen. Landrieu suggests, for a real election year debate.

Democrats may not win a religious fight this year over Obamacare, but they won’t even have a chance unless they start throwing a few punches rather than trying to absorb those the other side will continue throwing. Defending a law that more than eight million Americans have embraced and that holds out the hope for a much improved quality of life for millions more seems like something worth fighting for because it really is better to be for something than against everything.

Many Republicans of the generation that created Social Security never came to fully embrace the program, but time, events and public opinion overtook them. Franklin Roosevelt, the father of modern American politics, loved to taunt his opponents by asking them what they would do differently and whether they had an alternative. Those are still good questions.

2016 Election, Baseball, Campaign Finance, Poetry, Politics, Supreme Court

Politics of the Oligarchs

Posted on by christian

Campaign FinanceimageFor most of the 20th Century, indeed for much of the history of our Republic, there was a consensus that money – particularly vast sums of money – had an inherently corrupting influence on American politics.

The intersection of money and politics, both at the fringes and at the center of our democracy, has often led to full-blown scandal. William Andrews Clark used his copper fortune to buy a U.S. Senate seat in Montana in 1899 by bribing state legislators. By today’s standards Clark’s “acquired” Senate seat was a real bargain. He reportedly spent only $300,000.

In the 1920’s money was at the core of the Teapot Dome scandal that sent a cabinet member to jail and forever defined Warren Harding’s administration as among the most corrupt in the nation’s history. In 1935 the nation’s electric industry, threatened by Franklin D. Roosevelt’s desire to break-up the great utility holding companies, mounted what was at the time the greatest (and costliest) lobbying campaign ever. The effort consisted of phoney “grassroots” lobbying of Congress financed by the then unheard of sum of $5 million. We know about this because a then little known Alabama Senator by the name of Hugo Black used a Congressional investigation to expose how the big money was gathered, laundered and spent to protect the utility monopoly.

Watergate, Abscam (the money and political scandal that serves as the basis for the Oscar-winning film American Hustle), Al Gore’s fundraising at a Buddhist temple, well, you get the point and we could go on-and-on.

With its latest ruling on political money, the United States Supreme Court (or more correctly five justices) further shredded the one-time consensus that too much money mixed up with politics is fundamentally bad for American democracy. The Court’s McCutcheon ruling now joins the historic case Citizens United, both written by Chief Justice John Roberts, in systematically eliminating constraints on money in politics. While Roberts’ McCutcheon ruling left in place individual limits on contributions to candidates and political action committees, one only has to read the opinion to see that those limits will eventually topple, too.

Justice Clarence Thomas voted with the Roberts’ majority in the McCutcheon case, but argued in a separate opinion that, amazingly, the Court hadn’t gone far enough. Thomas called the ruling “another missed opportunity,” and as Politico reported, said he would strike down all limits on campaign donations and that the state of the law will be unsatisfying incomplete until the court squares up to that issue. “Until we undertake that reexamination, we remain in a ‘halfway house’ of our own design,” Thomas declared. In other words, stay tuned.

The Sheldon Primary

Amid the general and persistent fog of American politics, the daily battle for the dominate soundbite, the buzz of the latest opinion poll, jobs report or health care enrollment number it is easy to miss what is happening right in plan sight. But, like the revelation Dorothy must have felt when she pulled back the curtain on the less-than-meets-the-eye Wizard of Oz, the direction of our politics – if you want to see it – was on display in stark relief a few days ago at the expensively tacky Venetian Hotel in Las Vegas.

It is a rich irony that the conservative majority on the Supreme Court knocked another brick out of the wall of campaign finance law just days after four of the likely Republican candidates for president next year were cooing and scraping in front of the $93 million dollar man – casino billionaire Sheldon Adelson.

In my distant memory there was a time when it was considered unseemly for a politician to audition, at least publicly, for the favor of a business mogul whose vested interests are so obvious. As Jonathan Alter points out in his New Yorker blog there is no secret as to what “the Sheldon primary” that recently featured the governors of New Jersey, Wisconsin, Ohio and the former governor of Florida was all about.

Adelson, who makes most of his money at a casino in Macau (which, if your geography is rusty is “a special administrative region” of the People’s Republic of China) wants no expansion of Internet gaming that might threaten his gambling halls and he wants two federal investigations of his operations to go away. He’d also like to name the next Secretary of State and dictate U.S. policy toward Israel and the Mideast. Give the guy credit for candor.

“I’m against very wealthy ­people attempting to or influencing elections,” Adelson told Forbes in 2012. “But as long as it’s doable, I’m going to do it.”

So here was Ohio Gov. John Kasich shamelessly and publicly sucking up to Adelson, the guy who single-handedly spent $93 million in 2012 attacking Mitt Romney’s tenure at Bain Capital, a generous gesture that kept Newt Gingrich in the GOP presidential race long weeks past his expired by date. As Kasich’s home state Cleveland Plain Dealer wrote, “Kasich, more so than any of his peers, drops all pretense” in his effort to kiss Adelson’s ring, or something. “He laces his 30-minute speech with direct appeals and shout-outs to the host with the most. Starting with the fifth or sixth, one national reporter loudly guffaws with each utterance of ‘Sheldon.'”

In John Roberts’ world rich guys like Adelson writing huge checks to politicians and the committees who support them is, in the words of Garrett Epps of The Atlantic merely “free speech” for rich guys. Millions in financial support from the deepest of the deep pockets is just “like volunteering to lick stamps at the campaign office; reclusive Nevada billionaires are just constituents, like the widow seeking her pension benefits; the desires of business executives are just beliefs, advanced in the way the Founding Fathers wanted—by writing big checks. Under this rationale, it is hard to see why direct-contribution limits should be allowed, and we may assume that cases soon to be brought will give the majority the chance to eviscerate those limits.”

Roberts’ reasoning equates Sheldon Adelson’s $93 million in political spending to my bumper sticker. It’s all a matter of free speech, says the Chief Justice, but obviously not at all about equal access to the political process or disproportionate influence over the lawmakers.

NBC’s Chuck Todd has documented how this “free speech” campaign has been going: “Political spending from outside groups – either created or bankrolled by American billionaires – has skyrocketed from $193 million in 2004 and $338 million in 2008,” Todd wrote recently, “to a whopping $1 billion in 2012, according to the Center for Responsive Politics. To put this $1 billion in outside spending in perspective, it’s almost TWICE what John Kerry and George W. Bush spent COMBINED in the 2004 presidential race ($655 million). And it’s THREE TIMES the amount John McCain spent in the 2008 election ($333 million). Another way to look at all of this money: Overall political spending on races (presidential plus congressional) has DOUBLED from $3 billion in 2000 to $6.2 billion in 2012. And in presidential races alone, the combined amount that George W. Bush and Al Gore spent in 2000 (about $250 million) QUADRUPLED to the combined amount Barack Obama and Mitt Romney spent in 2012 ($1 billion-plus). And that doesn’t count the political-party spending.”

My bumper sticker is sounding less and less important as, in reality, we turn electoral politics, once dominated by candidates and parties, into a free spending game for Sheldon Adelson and other billionaire oligarchs who have the money and the vested interests to increasingly dominate our elections. As long as it’s doable, as Sheldon might say, why not.

Ironically it was Newt Gingrich, the guy who benefited from the Adelson financed attacks on Romney’s private equity past, who said during the last campaign, “You have to ask the question, ‘Is capitalism really about the ability of a handful of rich people to manipulate the lives of thousands of people and walk off with the money?'” The answer, more and more, seems to be – yup.

“Watching events in Russia and Ukraine,” columnist Gail Collins writes, “you can’t help noticing all the stupendously rich oligarchs with their fingers in every political development. It’s a useful word, connoting both awesome power and a group you don’t really want to have around.

“In the former Soviet Union, the money elite generally get their power from the politicians. Here, it seems to be the other way around. But the next time casino zillionaire Sheldon Adelson invites the Republican presidential hopefuls to go to Las Vegas and bow before his throne, feel free to say they were just off honoring an oligarch. Apparently, the founding fathers would have wanted it that way.”

Truth be told the Founders wouldn’t recognize American politics today. They were tough, aggressive partisans to be sure, but they couldn’t have imagined a political process where a handful of extraordinarily well-to-do rich guys have been able to bend the system merely by spending lavish amounts of cash. In poll after poll, Americans express exasperation and cynicism about our politics. Millions don’t participate feeling that their vote – not to mention their voice  – doesn’t count. Younger Americans, in particular, see a rigged system built and maintained by the really wealthy to perpetuate themselves and their point of view.

If you think the American electorate is cynical now, just wait until all the campaign spending limits come off as the Roberts’ court take it upon itself to ensuring that more money from fewer people is the overriding and perhaps only decisive factor in our politics. Americans may not like Congress much these days, but one suspects they’ll like a bunch of well-heeled oligarchs calling all the shots even less.

The question then: will we change this trajectory and blunt the politics of the oligarchs or will we, as Gail Collins says, decide that “what this country really needs is more power to the plutocrats?”

2016 Election, Campaign Finance, Poetry, Supreme Court

The End of Spending Limits

Posted on by christian

1381180830000-XXX-McCutcheon-hdb3864Shaun McCutcheon (that’s him in the photo) is a wealthy guy; an electrical contractor from Alabama who is also a conservative political activist. The Supreme Court appears ready to give Shaun what he says he wants  – the chance to spend a great deal more of his money on candidates for federal office.

The Court heard arguments yesterday in McCutcheon v. Federal Election Commission, a sort of sequel to the 2010 Citizens United case that I’ve lamented here in months past. If the Court goes the way the questioning seemed to indicate yesterday one more big prop will be kicked out from under the American jumble of campaign finance laws and once again American democracy will most closely resemble a political version of “The Price is Right.”

Right now, ol’ Shaun is prohibited from contributing more than $123,200 to federal candidates and political parties in a two-year cycle. You might think that would be more than enough political spending for most of us and, of course, it is. But guys with lots of money, from the right and the left, like to participate in the political process because, well you know why they like to participate in the political process. If the Court rules his way Mr. McCutcheon will soon get to start writing checks to federal candidates – just buying good government, I know – for millions and millions every year.

As Charles Fried, who served as Solicitor General in the Reagan Administration noted recently in the New York Times, “Ever since the 1976 Supreme Court case Buckley v. Valeo, in which the court upheld limits on individual federal campaign contributions, every Supreme Court decision on this issue has been based on the distinction between money given to candidates — contributions — and money that individuals or organizations use for their own independent campaign-related expenditures.

“The underlying idea is that while the First Amendment prohibits the government from limiting your political speech (and the more you speak, the more you may have to spend), a contribution is money spent to help someone else speak. The government may not limit your own expression (and since Citizens United that applies to corporations and unions, too), but for almost half a century Congress has limited contributions without being challenged by the Supreme Court.”

Until now.

The Court’s efforts to further destroy limits on money in politics, at least after Citizens United, seems inevitable. Once you decide that the sky is the limit for the Koch Brothers or Bob’s Muffler Shop to spend money on independent political efforts then how can you logically – at least in the logic of the Robert’s Court – limit what Shaun McCutcheon can lavish in the way of cash on his Congressman and yours?

Two things above all stand out in this confluence of money, politics and policy. One is the unbridled willingness of the “conservative” Robert’s Court to trample on precedent and long-established law. The Citizens United decision tossed out 100 years of established law – law made by one branch of government and endorsed by a second – and substituted the wisdom of five appointed justices none of whom has ever held elected office. The expected next move will toss all or most of a law on the books for more than 40 years.

David Cole, writing in the New York Review of Books, makes the case that the current session of the Supreme Court may well see a host of established laws, including the candidate funding restrictions, upended by Roberts and his four like-minded colleagues. “In all of these cases,” Cole writes, “the real question is not whether the conservatives will win, but how they will win. (It’s conceivable that the liberal side will prevail in one or more cases, but most court observers think the odds are against it.) Moreover, in most of the cases, Justice [Anthony] Kennedy, usually the swing vote, has already aligned himself with the strongly conservative view, so the outcome is likely to turn on Roberts. If the Chief Justice and his Court proves to be Conservative, the term could end with a radical revision of established precedent in a host of constitutional areas. If the Court is simply conservative, the status quo precedents will remain intact. We’ll know by June 2014.”

So much for the notion of judicial restraint.

The second takeaway relates to the fact that no member of the current Supreme Court has ever been elected to anything. This is important, I think, because the justices – at least the five most consistently conservative justices – completely dismiss the arguments that unregulated money can and will lead to what the Washington Post’s Dana Milbank quaintly calls “legalized corruption.” Election law expert and law professor Richard L. Hasen says it just as bluntly: “The closer the money comes to the hands of members of Congress, the greater the danger of corruption and undue influence of big donors” and he say what the Court appears ready to do “will greatly increase the chances of a corrupt Congress.”

When U.S. Solicitor General Donald Verrilli suggested yesterday that the Court may have gotten it wrong in Citizens when it  dismissed “the risks of corruption from independent expenditures” Justice Antonin Scalia simply said, “It is what it is.” Very thoughtful.

What the definition of “is” is can simply be reduced to money purchasing political influence. And the bigger the purchase the bigger the influence. With the expected decision in McCutcheon it is possible that as few as 500 very, very rich Americans can finance all the costs of running for federal office for everyone running. In such a system the small $250 contribution from the retired couple or the small business owner ceases to matter. Why waste your valuable fundraising time connecting with what Justice Ruth Bader Ginsberg called “the little people” when you can raise a few hundred thousand with a couple of calls to civic minded guys like Shaun McCutcheon?

“If Scalia got out of his ideological echo chamber,” Dana Milbank writes in the Post, “he would discover that, encouraged by the court, wealthy conservatives donate to groups such as the Club for Growth and Heritage Action, which threaten to fund primary challenges to Republican lawmakers who show any ideological impurity. Because most Republicans are in safe seats (in part because of Supreme Court-sanctioned gerrymandering), the only threat to their reelection is in a primary — and so they have no choice but to obey the conservative billionaires’ wishes. The problem on the left isn’t as acute, but it’s only a matter of time before liberal billionaires execute a similar purge.”

It’s probably just a coincidence, but Politico reports today that the Koch brothers have given $500,000 to one of the shadowy outside groups that has lobbied Republicans to shutdown the government and threatened GOP “moderates” if they don’t hold fast to the defund Obamacare strategy. That kind of money going directly to candidates can’t be far away.

Reflect on this: the laws restricting the power of money and the impact on our politics of the few with “real” money were passed in the wake of serious political money scandals. The Court has already overturned one law passed in the wake of revelations that rich millionaires, like the notorious Montana Sen. William Andrews Clark, had bribed their way into the United States Senate. The law on trial in the Supreme Court this week was passed in the wake of Watergate, a case of political corruption that had at its heart political money. As sure as dawn follows the night political corruption most odorous is marshaling for the next huge scandal.

Former Solicitor General Fried reminds us that “Justice Scalia once wrote in another context, this argument is not a wolf in sheep’s clothing: ‘this wolf comes as a wolf.’ The only reason the Supreme Court would be tempted to let this wolf in is if the Court wants to see the destruction of all limits on an individual’s donations to a political candidate.”

Thanks to the United States Supreme Court more than ever the political money wolf is at democracy’s door.

Campaign Finance, Clinton, New York, Oregon, Poetry, Travel

Nothing Succeeds Like Excess

Posted on by christian

vivian-gordon-murder-walkerAnthony Weiner is so very, very New York. So is Alex Rodriguez the just suspended Yankee third baseman.  Even though they once called Arkansas home, Bill and Hillary Clinton are so very New York, too. They Clintons are spending August in the Hamptons don’t you know, while Hillary takes a little break from the $200,000 a speech circuit. Cashing in can be so tiring.

Don’t get me wrong, I love the biggest big city in the world. It’s the capitol of everything from food to finance, but New York is also the world center of entitlement and excess. And its almost always been so. Long before Weiner was tweeting his Anthony to complete, but always attractive strangers New York’s mayor was a dandy dresser and world-class grafter named James J. Walker. That’s Hizzoner nearby at the height of his power and corruption in the late 1920’s. Nice suit.

Had Jay Gatsby existed anywhere other than in Scott Fitzgerald’s great novel Walker would have been at one of his Long Island parties. Not for nothing was Walker called “The Night Mayor of New York.” When the Yankees were home at the Big Ballpark in the Bronx the mayor was there. While in the State Senate Walker pushed a bill legalizing big-time boxing in New York. His seat ever after was a ringside. The mayor was so good to the boxing world that he’s in the Boxing Hall of Fame and the Hall named its biggest award for Beau James.

Long before Weiner’s encounters with electronic communication and sexting, Jimmy Walker, the very married mayor, had a thing for a New York show girl and living very, very large.  Ben Hecht, the Chicago reporter who wrote The Front Page, once observed: “Walker is a troubadour headed for Wagnerian dramas. No man could hold life so carelessly without falling down a manhole before he is done.”

For a while – a long while – all the city loved him. New York has always loved good copy and Walker always practiced the first rule of New York – don’t bore me. But eventually the excess, the recklessness, the corruption and, yes, the sense of entitlement that is such a part of the New Yorkers who think they have it made caught up even with Gentleman Jim.

Then New York Gov. Franklin Roosevelt, eying a presidential candidacy in 1932, opened the manhole for Walker and down he went. As he took the stand Walker quipped, “There are three things a man must do alone. Be born, die, and testify.” With an indictment hanging over his slick backed hair Walker headed for Europe and only came back when the heat was safely turned way down. In that way, too, Walker was an earlier example of New York entitlement. The motto must be: “Do it and do your best to get away with it.”

Weiner, a seriously troubled guy with a pathological need for tabloid attention, seems determined to go down texting. Shame isn’t the way new York rolls. Weiner will never be mayor, but he may actually expand the definition of New York excess as he grasps for Gracie Mansion. The Clinton’s web of relationships with Weiner’s wife Huma – the candidate and spouse live in a fancy Manhattan apartment owned (of course) by a wealthy Clinton supporter and Ms. Weiner worked for both Bill and Hill – is all of a piece with the New York Times Style section, which most weeks reads to those of us who live anywhere west of the Hudson River like the house organ of the truly beautiful and entitled. Not to mention the frequently clueless and the tasteless sons and daughters of excess.

A-Rod, the perfect New York combination of talent, arrogance, excess and entitlement, seems ready to do everything possible to postpone his ultimate punishment at the hands of the game that made him a gazillionaire in order to make the Yankees – more big excess from the Big Apple – pay him extravagantly for going through the motions for a few weeks of this baseball season. Maybe he needs the money. Buying up evidence, not to mention banned substances, can be expensive.

Thank me. I’m not even going to mention Eliot Spitzer.

At least Beau James Walker had the grace to resign as mayor when the luster finally wore off.  Still, as they say, nothing succeeds like excess. When Walker finally came back to Manhattan and before his death in 1946 many New Yorkers continued to love the man who made his sense of entitlement a political virtue. His sympathetic biographer wrote in 1949, “He stayed Beau James, the New Yorker’s New Yorker, perhaps the last one of his kind.”

Guess not.