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February 1, 2010

Lying About the Citizens United Case

CREDO Action sent out an alert, echoing media talking points I’ve heard from many mainstream media sources, regarding last week’s Citizens United campaign finance decision…

We deserve a country where our elected officials are not bought and paid for by Big Business. But last week’s Supreme Court decision in the case Citizens United vs. FEC overturned over a century of precedent and opened the floodgates for unlimited amounts of corporate money to flow into our political system.

That paragraph is profuse prevarication. But I’ll only focus on one lie in this piece.

FACT: The Citizens United decision (CU) overturned only one case, plus the most heinous part of another. Congressman Alan Grayson takes the lie further and makes it more explicit.

By gutting the 100-year-old Tillman Act ban on corporate contributions, the U.S. Supreme Court has opened the door to political bribery and corruption on the largest scale imaginable.

The Tillman Act wasn’t even considered in this case. It remains in effect. Corporations still can’t make direct contributions to candidates.

However, corporations used to be able, even under the Tillman Act, to spend their money reporting a candidate’s voting record, or to encourage the public to contact the incumbent on an upcoming vote of urgency to the corporation. This right was closed by Austin v. Michigan Chamber of Commerce. But such independent expenditures were not banned until Austin.

In the CU decision, the Supreme Court overturned Austin v Michigan Chamber of Commerce, putting things back to the way they were in 1990 — not 100 years ago, as Grayson claimed.

In CU, the Court also overturned part of the McConnell v Federal Election Commission (FEC) decision. That part was the electioneering communications provision — the most evil part of the McCain-Feingold law, called the Bi-Partisan Campaign Reform Act, which the Court upheld in 2003. We were all so young then.

Electioneering communications was a blunt, incumbent-protection, weapon. This provision effectively made public disagreement with incumbents virtually illegal. Here is how it worked…

It was illegal, with criminal penalties attached (a modern first, with regard to political rights under the First Amendment), for you to broadcast an ad . . .

* In the final 60 days of a general election campaign, or
* The final 30 days of a primary election campaign…

In the district or region where the vote was to occur, unless your group FIRST…

* Formed a committee,
* Designated a treasurer, and
* Filed reports with the Federal Election Commission

…BEFORE accepting any donations.

Your new, little committee would need a bank account so that the records could be traced, and this would require registration with the IRS as well.

This is how groups like Citizens United are often born. They are “advocacy corporations.”

When your group took donations, under the electioneering communications provision, you were also compelled to make a serious effort to . . .

* Determine who gave the funds,
* What the specific amounts given were, and
* What the occupations of the givers were.

In addition,

* Contributions from each donor were also severely limited, and
* You needed to return much needed funds if they exceeded the donation limits.

Then, your group had to file a complicated report using the FEC’s cumbersome interface the same day that you contracted to purchase the air time, even if the actual broadcast was still days away — all the better to alert the incumbent and his allies of your plans.

Any of these things are a textbook example of what the lawyers call “the chilling effect.”

Participatory democracy suffers under such a regime, as in very real, down-to-earth case of Karen Sampson, who found that “passing a hat” was legally insufficient for neighbors engaged in local activism.

Your opposition might be small, spontaneous, and inexperienced. That might also mean too cash poor to afford attorneys or consultants to navigate the perilous law. But the Powers That Be — the authors and enforcers of these laws — always seem to have the resources to operate under these constricting rules. Is that a mere coincidence?

No, it appears to be intentional. After all, when contributions are limited in size, one is required to raise more of them in order to pile up sufficient marketing funds. That’s always easier to do for incumbents. A political contribution can be an investment or it can be protection money. But what does a donor gain by supporting your opposition effort? Given that his contribution is too small to settle the matter in the way he’d prefer, but big enough to be reported so that the incumbent office-holder can see it, the answer may well be “trouble.” So…

In a word, you were lied to, and hysterically so, by the mainstream media as to the result and import of this case. This decision should be embraced for the opportunity it represents to regular people, who band together, in non-profit advocacy corporations (like DownsizeDC.org).

And that is why, the Downsize DC Foundation was proud to co-sponsor an amicus curiae brief to the Supreme Court in the CU case. We, at Downsize DC, believe our brief was highly influential in this case. While the decision was not perfect, we are quite pleased by the overall outcome, and the potential precedents it sets.

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