Assessing the Citizens United Case and Its Effect on 2010 Midterms

Citizens United v. FEC Summary of Holding

            The Citizens United ruling, like Buckley addressed the constitutionality of certain aspects of a recent regulation on political money and speech, in this instance, the Bipartisan Campaign Finance Reform Act (BCRA), otherwise known as McCain-Feingold. In this case Citizens United was challenging the applicability of three provisions as they related to Hillary: The Movie, which was found by the fact finding body to be made for the sole purpose of discrediting Hillary Clinton as a presidential candidate.

1)      §203, which prohibits the production and funding of “electioneering communications” from the general treasuries of corporations and labor unions. 

2)      §201 which requires the disclosure of donors to such communications

3)      §311 which requires a disclaimer when the communication is not endorsed by the candidate.

The Courts holding altered the landscape which had been upheld for 3 elections cycles, including a challenge in McConnel v. FEC which was overturned in part by this decision. First the court struck down the prohibition on funding the communications from general treasuries, overturning two previous decisions and stating clearly that to restrict independent political speech, including multimedia, would be an undue burden on the First Amendment and would be lacking in a sufficient governmental interest in order to overrule this fundamental right. It also reinforced the concept of corporate “personhood” which has always been a point of contention between the wings of the court. Secondly, the court continued to uphold the principle of disclosure confirming the constitutionality of §201 & 311 and setting a consistent and parallel standard with the ruling in Buckley between corporations and individuals, it reasoned that the governments interest in an informed electorate with respect to corporate donors did meet the standard where the interest in limiting contributions did not.

Analysis of these cases in the light of the 2010 election

            Often in elections the loosing side will attempt to rationalize their loss in terms of situations beyond their control in order to avoid takings responsibility for the impact of their own actions on the outcome. The eagerness to explain away the swing in Democratic fortunes by blaming Citizens United is one such example. There were far too many factors in the mix in 2010 for the weight of the decision to be truly realized in the course of one cycle.  What is clear is that spending increased dramatically from corporate and union entities in this cycle. Nearly a quarter of the money spent in this cycle is considered to be “Personhood Cash” or un-itemized corporate cash from the general treasuries of corporate “persons”.[1] The effectiveness of that cash, however, remains to be truly assessed. The Sunlight Foundation, a left-leaning open-government group, surveyed the effect of Third Party spending in elections by analyzing the top spending groups in the elections.[2] What is most striking is the fact that exclusively Democratic groups such as the League of Conservation Voters and the AFSCME sunk large amounts of cash into Democratic candidates both lost over 70% of their races. However, some of the Republican groups, most notably the Republican Senatorial Campaign Committee, lost a majority of their races despite being one of the biggest spenders.

            I think that the knee-jerk criticisms would have existed even if the Democrats had somehow maintained control of the house, indeed even if any more than a handful of Democratic incumbents had lost their seats. These arguments were pre-prepared and began almost as soon as the decision came down in January. The assumption of a cause and effect relationship between the most expensive election in history ($4 billion) and a return to Republican Control in the House assumes many things which are mere suppositions and in some cases outright wishful thinking. I  think it is important to address some of the factors outside of Citizens United in order to truly assess the truth of these assumptions.

            First, there is the ballooning cost of elections as a whole. Over  $2 billion dollars was spent on the Presidential election of 2008 alone[3],  $1 billion in 2004, $650 million in 200, and $490 million in 1996[4]. Elections need more and more money and, in classic American style, where there is demand, someone will provide the supply. In this instance, there is an increasing demand for media saturation, the rise in early voting, the proliferation of internet campaigning and the diversity of methods required to reach different demographics (direct mail for older voters, TV for baby boomers, internet for the youth) have created an endless maw required for message generation and effectiveness. The gaps that campaigns can not fill with their limited resources are bound to be filled one way or the other by special interest groups and corporations which share their goals on various issues.

Second is the sheer inevitability of corporate involvement. Corporations have been deeply involved in the function and operation of elections for over 150 years. When the government closes the door to one window of electoral finance, corporations generally blow a hole through the wall and call it a window. The perfect example of this involves the very law challenged by Citizens United. Almost as soon as the BCRA was enacted, corporations and special interest groups began using loopholes. The most famous was the 527 groups. In 2004 accusations went both ways about these large, unregulated groups which were devoid of responsibility to both the government or the public. Republicans were hit over and over by Moveon.org, John Kerry received harsh treatment from the “Swiftboat Veterans for Truth”, this loophole even gave rise to a  common nickname for irresponsible and unaccountable attacks from questionably funded groups: Swiftboating. Regulation of corporate contributions is not and never has been an effective strategy. BCRA was supposed to limit the (questionable) level of corruption created by this sort of funding regieme, but 2008 was called by some pundits as the most special interest heavy presidential race in history.

Third are the natural tendencies of American elections. As is common knowledge, with the exception of 2002, the ruling presidency traditionally loses seats in off-year elections. Following “regime change” elections (elections where parties change following 2-terms or more of being out of power, those seat losses are often heavy and pronounced (1982, 1994 being the most prominent). This election was not uncommon and followed a pattern set by both Reagan and Clinton.

The biggest concern is the so-called “disclosure hole” of trade organizations and other tax exempts. While Citizens United strongly and vociferously upheld disclosure as being in the absolute interest of the electorate, there is a loophole in the system which allows for “donor confidentiality” in the donations to trade organizations, such as the American Association of Realtors and the National Education Association. The DISCLOSE act, which was proposed but tabled before 2010 and is not looking favorable in the next Congress, would require these disclosures and close this loophole. This was also important in the discussion of the Chamber of Commerce and its refusal to disclose donors when asked by the Obama Administration. I think it is a favorable direction but only if it is the “disclosure only” version being touted for the lame-duck session in congress[5] and not the “backdoor BCRA” that the original draft was which contained far more than mere disclosure provisions and included other attempts to reinstitute the very restrictions rejected by the Court. The disclosure provisions of the BCRA and the earlier acts reviewed in Buckley have been held in high esteem by most justices. They reject any notion of “intimidation” as a bar to disclosure and support transparency as the ultimate equalizer in campaign donations. Scalia said in his concurrence for the first disclosure care post-Citizens United:

"There are laws against threats and intimidation; and harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self-governance. Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed. For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously(McIntyre) and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave."[6]

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[1] Sunlight Foundation

[2] http://reporting.sunlightfoundation.com/2010/did-outside-money-pay/

[3] http://query.nictusa.com/cgi-bin/cancomsrs/?_08+00+PR

[4] Kennedy, Helen "Wanna be Prez? First get $100M". New York Daily News. (January 14, 2007).

[5] http://thehill.com/homenews/campaign/118535-campaign-finance-showdown-in-works

[6] John Doe No. 1 v. Sam Reed. 130 S.Ct. 2811, 2813 (2010)

DADT, Obama and the no-win situation

With growing impatience at the reluctance of Congress to address the future of Dont Ask, Dont Tell, suit was filed in Federal Court to goad them into action by declaring the law unconstitutional. The matter finally reached the 9th Circuit and was declared just that a month ago. Now the judge has further ordered that enforcement cease world-wide. This is an interesting suit because, like many, it effects the political landscape of the upcoming election from several angles but all of them seem to end badly for President Obama and the Democrats. 

The "gay lobby" has become increasingly restless over the last year at the failure of President Obama to act affirmatively on any of the issues he claimed (either implicitly or explicitly) to champion in 2008. His only gay-rights action to date has been the extension of benefits to same sex couples in federal employ. He has offered lip service as of late, particularly on the issue of DADT, but when the time came to transfer words into action, Obama offered little in the way of Executive muscle to power the issue to a vote in the last session of Congress. 

What complicates the issue of this ruling is that Obama must make the decision on whether the Justice Department should appeal the decision since it is a matter of Federal Policy. The clock is ticking and I do not see pushing it off until after the election to be the answer because he needs something to motivate the young voters to show up in November. He already has asked Justice to appeal the decision declaring the Defense of Marriage Act unconstitutional, but it would me more likely for him to refuse to appeal this decision because it is a policy he is on the record as opposing where he has stated that he does not support gay marriage.

Further complicating the question is the fact that the suit was brought by the Log Cabin Republicans, the nations most prominent conservative gay advocacy group. Thus the Republicans Party can have their cake and eat it too, forcing Obama into making a decision he would rather not make. The timing could not be better and I anticipate that Obama will be forced to not appeal, but still have to loose the initiative on his issue which is so important to many of his supporters. 

Crist, Meek and Rubio's Rumor Mill

A recent article on the Wall Street Journal Online Edition repeated the oft repeated rumor that has been present in the blogosphere almost since Charlie Crist declared himself an Independent: that Democrat Kendrick Meek will drop out of the race and endorse Crist in order to shore up the opposition to a surging Republican Nominee Marco Rubio. The article does not cite any sources, even "highly placed" anonymous ones, which lends to the idea that they are merely repeating the rumor rather than stating a corroborated strategy of the Meek camp. The WSJ editorial page and the online blogs are known to lean towards Republicans, particularly with their recent acquisition by Rupert Murdoch's News-Corp, and their repeating the rumor seems to be more playing into a Rubio strategy than anything else. 

On it's face, the strategy would seem sound, Kendrick Meek will not win this election, even with the recent "blue"
 vote in 2008 for Florida, the state still leans to the center-right. Meek's power base exists only in the African-American and non-Cuban Latino vote. Even South Florida, Meeks' region, is moving towards Crist after months of being a bastion of Meek's support. Crist is more broadly supported regionally and is still pulling in some Republican support even if it is in the teens. Crist also has the ability to garner African-American support (he was once famously called Florida's First Black Governor). But, any appearance of Crist becoming a de factoDemocratic Nominee would completely dry up much of Crist's shaky center-left coalition. In particular, any endorsement from Meek would require Crist to make a committment on whom he would caucus with (likely the Democrats), which would essentially kill Republican and some of the Independent support. 

Far more likely is that this rumor began in the Rubio camp, this was part of his strategy in the primaries as well, conservative bloggers, many of them open Rubio supporters repeating rumors of Crist joining the Democratic party even when Rubio was still behind in the polls. It became such a meme in Republican circles that it became almost an article of faith to some, despite the paucity of evidence. However, in the end it became a partially self-fulfilling prophecy when Rubio overtook Crist in the polls based at least partially on Republican doubts about his loyalty, a loyalty rarely questioned throughout his 25-year political career. 

In short, it will be highly unlikely for Meek to drop out and even less likely that Crist would accept his endorsement. A far more likely strategy (of collusion were to actually occur between Crist and Meek) would be for Meek to continue to tack farther to the left  allowing Crist to establish himself as the sane moderate sitting between the Tea Party and the whacko leftists. 

The 17th Amendment, neo-secessionists and the Return of Federalism

With the passage of the Heath Care reform act, known as “Obamacare” to its critic, the members of the “Liberty Right” or the “Paleoconservatives” have been making increasing noise about the validity of secession as a check on the power of the central government.  This stems from the idea that the states no longer have any check on the powers of the Federal Government to intrude on their traditional domains. 

                Few people actually advocate that secessionism is a valid exercise of state power; most accept the results of the War Between the States as a final referendum on the rights of states to leave the Union short of its complete dissolution or devolution.  However, there still remains the very real question of who will keep the national government in its box when they attempt to step on the toes of traditional state functions. Some would say that that function belongs to the courts, but the courts are less inclined to become engrossed in “political questions” and will more often than not defer to the decisions of the U.S. Congress.

                The more moderate members of this movement have suggested a simple and elegant solution to this question, an idea which dates back to the original intent of the framers, namely the repeal of the 17^th Amendment mandating direct election of Senators.  There are three primary arguments in favor of this proposed action:

1.       The purpose of the state legislatures selecting Senators was considered to be very important to the founders.

2.       The wrong that direct election of senators was thought to correct has not and will not be alleviated.

3.       Repeal of the 17^th Amendment will increase interest in elections to state legislature which will increase the quality of representation and governance in the states.

In Federalist No. 62, James Madison said that the system proposed would give “to the State governments such an agency in the formation of the federal government as must secure the authority of the former, and may form a convenient link between the two systems”.  The Founders saw the Senate as a way to represent the States as an entity and create a link through which the governments of the several states could act as a counterbalance to the majoritarian impulses of the people at large, represented by the House.  The intent was clear through most of Federalist 62, 63 and 64 that the Senators were not intended to be “super Representatives” and should be free from the burden of campaigning and pandering, instead being a wise and august body presenting a stable front both to the people and other nations.

The movement which culminated in the 17^th amendment sought to eliminate corruption and influence peddling in the selection of senators, William Randolph Hearst was crucial in this effort by publishing several articles detailing the corruption and vice of appointed senators. It is fairly clear that direct election has not alleviated this problem and may have even made it worse because of the millions of dollars required to mount a state-wide campaign, particularly in states with large markets like Florida.

In summary, the repeal of the 17^th amendment would likely not greatly the overall makeup of the Senate. Assuming that those legislatures which have split house control will appoint one Senator from each party (a traditional compromise) and that Nebraska’s unicameral, non-partisan legislature appoints one of each as well, the Democrats would actually gain 6 seats, owing mostly too large “Blue Dog” legislatures in Alabama and Mississippi and the loss of the Republican Senators in Maine.  However this would encourage in the engagement of the populace in the state legislature races and would likely, over the course of one or two election cycles, lead to a final normalization of both the “Blue Dog” phenomenon evident in the Deep South and the “New England Republicans” which has been ongoing for the last 20 years.  The minor cost of the loss of one house of directly elected legislator would be more than outweighed by the benefit of a body which represents the interests of the state as a whole in a truly Federalist fashion.

Gender, Race and Geography in the Florida Gubernatorial Race

                Florida Times-Union reporter Abel Harding reported today that GOP gubernatorial nominee Rick Scott has decided to ask Representative Jennifer Carroll, a African-American First Coast Lawmaker, to be his running mate in the general election. The article notes that Carroll is a good choice on its face, even when consideration of her voting record is not in play. As has often been the case with Republican executive politicians (and others running for office) in the last 20 years, there is a kneejerk reaction to indulge in the very “identity politics” they so abhor in their opponents. This phenomenon primarily occurs when the opponent is some flavor of minority themselves, in an effort to fight the perception of the “rich white guy” party. The most prominent example, is of course the selection of Sarah Palin by John McCain in 2008 in a clear effort to capitalize on the loss of Hillary Clinton in the primary. There are other examples, the recruiting of Alan Keyes to run against Obama for Senate in 2004 and the encouragement of First Coast Young Republicans President and African American Chris Nawiseki to run against Corrine Brown. Almost as puzzling, at least in the case of running mates, is the tendency of the Minority candidate to reciprocate by selecting an “old white guy” of their own, for every Sarah Palin there is a Joe Biden and for Jennifer Carroll, there is Alex Sink’s running mate Sen. Rod Smith. Both of these candidates come with benefits and detriments of their own outside of their genetic makeup.

                Rep. Carroll is an interesting choice for Scott and may present some unique challenges once one reaches past the obvious benefits. Carroll is well liked and experienced legislator. She is a 20-year U.S. Navy veteran and has a steady, if unremarkable legislative career in the House. She brings much needed legislative experience to the campaign of political neophyte Scott. She is also a resident of the First Coast one of two areas Scott needs to turn out big for him in November, the other being the heavily conservative and populous southwest which is where Scott keeps his own residence. The biggest problem, however, is one of geography, Scott is going to need heavy turnout for him in the “I-4 Corridor” which has rapidly become the key to Florida sought after by political strategists. Scott ignores this region at his own peril, Charlie Crist won the 2006 election by such a convincing margin in no small part by locking down the Corridor, Barack Obama did the same thing in 2008, running more ads in the Tampa and Orlando markets than any other city in the state.  Jennifer Carroll will not be the sweetener that Scott needs to win this crucial swing constituency that is already weary after he beat one of their own, Bill McCollum, in such a hard-fought primary.

                Alex Sink comes with a similar set of issues as Rick Scott, she is a relatively unknown political neophyte with a thin governmental resume and many years in a business which does not inspire the confidence of the masses (banking) with an institution has been mostly portrayed negatively as of late (Bank of America). She also picked a legislative running mate from North Florida, likely for similar reasons as Scott. Rod Smith is well known as the State Attorney who prosecuted Gainesville serial killer Danny Rolling he leveraged that career into a seat in the State Senate and two unsuccessful runs for Governor. Unlike Scott, however, Sink is well known and well liked in the corridor. Both she and her husband (Failed 2002 Gubernatorial Candidate Bill McBride) are civic leaders in the Tampa area and have an extensive network in Orlando through McBrides law firm, Holland and Knight.

The geographic problem with the Sink-Smith ticket seems to be the opposite of the Scott-Carroll campaign. Where Scott is strong in the Republican base regions of North and Southwest Florida but is weak in the I-4 corridor, the moderate Sink ticket is weaker in the traditional liberal strongholds of South Florida while holding an advantage in the swing areas. In summary, I believe both candidates could have made better selections to increase their prospects geographically, Scott could have selected a central Florida politician such as Tea Party darling Paula Dockery and Sink could have selected a South Florida grassroots favorite such as State Senator Dave Aronberg from Miami who just came in second in the Democratic Attorney General Primary. 

Thrasher v. Perniciaro a Case Study in the Factionalism of the Right

One of the less watched but most interesting races on the First Coast on Tuesday was the primary challenge to the chairman of the Republican Party of Florida (RPOF), John Thrasher, who also serves as State Senator for Florida District 8. This race, between Thrasher and Beaches dermatologist Charles Perniciaro, illustrated a growing inter-party factionalism among Republicans. This rift has grown more prominent with the growth of the “Tea Party” movement and it often described as a conflict with the establishment and the Tea Party challengers, but in fact it is a three way struggle between three distinct factions: The social/neo conservatives, the “Liberty Right” and the business interests dominating the establishment Republicans.

John Thrasher was the former Speaker of the House when he was first elected in a special election in 2009 and soon after became the head of the RPOF after former chairman Jim Greer left in disgrace. While already evident, the rift between Thrasher and the Liberty Right (represented by the Republican Liberty Caucus[RLC]) became crystal clear when a member of the St. Johns Executive Committee stepped down so Thrasher could be elected to the committee and fulfill the rules requirements to ascend to the party chairmanship and RLC members were removed from the meeting after they claimed they were scrubbed from the voting rolls.

 Thrasher had aligned himself with the “establishment” wing of the party with endorsements from Jeb Bush and the tacit support of REC’s in some counties.   Thrasher has also courted the social conservative wing with a barrage of mailers describing him as a “pro life politician who keeps his promises”.   His connections to the traditional Republican business interests became more clear when a 527 group known as the Committee for Responsible Leadership, funded primarily by donations for Blue Cross and Blue Shield, began a series of mailers making hay of Perniciaro’s recent party switch, stating a series of controversial statements by Democrats and asking why “Lifelong Democrat Charles Perniciaro said nothing”.

Dr. Perniciaro ran in stark opposition to the morality of Thrasher serving as both RPOF chair and State Senator, a key sticking point for the RLC and articulated a clear opposition to the “legislation of morality”, even refusing to answer several questions on the Christian Coalition candidate questionnaire.  In the end, like many challengers on Tuesday, Perniciaro lost. The social and establishment Republicans touted this as a triumph of their faction over the oft ridiculed “Republitarians”. However, the real lesson to be taken here is the fact that a completely unknown challenger with no political clout and no experience received 41% of the vote against the sitting chairman of the Republican Party of Florida with the full weight of the establishment behind him. This bodes for interesting results in the next three election cycle as Florida’s three factions vie for supremacy. 

Phil Fretz is a Yutz, White Strikes Back and the TU’s Lousy Math

The last few days the debate over the state of Indigent Defense in the 4^th Judicial Circuit has heated up, briefly. First there was this little gem on the TU Editorial page by, presumably, the editorial board. Some of the greatest hits from this mercifully short waste of column inches:

"He says he hired lawyers with more experience, and at less cost, than those whom they replaced."

"His office has defended more clients in court than it did in previous years."

"Shirk seems to be interested in looking out for both his clients and the taxpayers."

All indications are that this was based on a press release or an interview with Mr. Shirk (there are points where they mention some sort of statement). Much of what was discussed is addressed later in this article, by Mr. White himself, but one thing is for sure incorrect. The senior attorneys with "more experience at less cost" is just an outright falsehood. Let us look at the "first five" who were fired almost immediately. Al Chipperfield, Ann Finnel, Pat McGuinness, Waffa Hanniah and Pat Kyser had a collective legal experience of 136 years, an average of 27.5 years, with only the last 2 being under 30 years. Those hired to replace them Refik Eler, Frank Shoemaker, Quentin Till, Al Perkins and Will Durden rack up at 110 years, an average of 22 years, but of course, this is misleading since Mr. Till has been practicing for 40 years and no one else has been practicing for more than 30. In fact, the second highest attorney, Eler would be third from the bottom in the previous list, barely edging out Ms. Kyser.

Now my first thought on where this fawning piece of fluff came from was TU Columnist Phil Fretz. It mirrored his style and he is known to be sympathetic to Shirk (they go to church together at First Baptist Downtown). It was confirmed the following day when he posted the The 'Matt Shirk formula' for balancing city budget where he offers up the following helpful advice:

"Mayor John Peyton, meet Matt Shirk. Please. And members of the City Council, you need to be there, too. The agenda for this little session: Figuring out how to cut the city's budget. Shirk is the public defender. His office has three sources of revenue from the state. One - called the due process appropriation - pays for things like expert witnesses and psychiatric evaluations. That money was reduced this year. Shirk could have demanded that the funding be restored, using all sorts of demagoguery about innocent people being denied an adequate defense. He didn't. Instead, he sent a letter to vendors, politely telling them that, henceforth, they would be paid 6 percent less. One vendor quit. The others stayed, Shirk's spokesman says. In times like these, there is no need for timidity in cutting budgets."

He is correct, there is little room for timidity in cutting the budget but his example fails on two points.

1. A Public Defender fighting to maintain his funding so he can maintain the resources which are already bordering on the edge of effective representation is never "demagoguery", it is doing his job.
2. Mr. Fretz fails to note that while Mr. Shirk may have had success in re-negotiating the vendors, there were also cuts which were made in the area from which the funding was obtained. Namely the restriction on psychological evaluations for clients. Whether or not this effects the effective representation of their clients is debatable, but to ignore this while lionizing the young PD's budget skills is dishonest at best.

Following was a fine rebuttal from what I would assume to be a thoroughly peeved Bill White:

COLUMN: Public defender: Another view of the office

Posted: March 23, 2010 - 2:05am

Letters from Readers

The impression left by the Times-Union's recent editorial on Public Defender Matt Shirk is he has made great strides in efficiency, economy and public engagement.

In fact, every item mentioned in the editorial is either wrong or simply indicates a continuation of policies and actions in place before the election of 2008.

Shirk has added an expensive layer of administration that did not exist before January. He hired a chief assistant at a six-figure salary. I had no chief assistant.

Shirk hired two staffers who help with public relations. One became chief of staff, at about $50,000 a year - working a half-time position. The other came on board at $80,000. I had no PR staff.

Shirk put on two former JSO officers as chief investigators. Each of them makes more than my one chief investigator, who was demoted and had a five-figure pay cut.

Shirk's campaign criticism that I had too many homicide attorneys has been replaced with an ad for more homicide attorneys, and a statement by his full-time PR person that the office will have 10 or

11 capital trial-qualified attorneys by January. I had eight.

Shirk criticized raises I gave to senior staff. Just a couple of months ago, he gave a big raise to an administrator who has been in the job for a little over a year.

Yes, the office has defended more cases, the result of the case- filing policies of the new state attorney. These cases are now being handled by fewer attorneys, each of whom (except for Shirk and

some other senior attorneys) is carrying an excessive caseload.

Video conferencing was a cost-saving innovation that began with my administration.

We instituted the policy to stop purchasing law books over six years ago. The paperless office is simply a trend toward which all public offices have been moving for years.

I applaud Shirk for keeping these projects moving forward.

Our office was the first public agency to engage the Sulzbacher Center for the Homeless, serving meals and providing legal counseling to the homeless.

Each year, our office provided cold-weather clothes to the Sulzbacher and raised significant amounts of money for local and national charities.

Maybe I should have hired PR staff to get that word out.

BILL WHITE, former public defender, Neptune Beach

In all, the Times Union failed in this, as it failed to thoroughly in the entirety of the 2008 election.