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After McCutcheon, Citizens United, 'QPQ PDQ' plan to preserve democracy

"For Sale: Our Democracy. Sold." Niki Minerva of Bellmore with her 101-year old grandmother, Laura Milina at a Long Island protest of the McCutcheon decision.
"For Sale: Our Democracy. Sold." Niki Minerva of Bellmore with her 101-year old grandmother, Laura Milina at a Long Island protest of the McCutcheon decision.
© 2014 Karen Rubin/

On the afternoon the Supreme Court handed down its 5-4 McCutcheon decision, further eviscerating fair elections and shifting power to the wealthy elite, I went down to the Nassau County Legislature in Mineola, Long Island, where some 20 protesters gathered. They waved signs that read, "Democracy is not for Sale" and "Democracy...Sold."

The five Right Wing Justices - Roberts, Scalia, Kennedy, Alito and Thomas- ruled in the McCutcheon v FEC that one individual can write a check for $5.9 million to federal candidates, political parties and political committees. (This is on top of the donations they can make anonymously to SuperPacs and 501c4s, which is why Adelson could spend $100 million in 2012, and why the Kochs have been able to spend $1 billion on candidates and policy making.)

It is another nail sealing the coffin of fair elections - the coffin being Citizens United decision, establishing that corporations are people, entitled to free speech, and could spend unlimited amounts of money on elections.

That set off a flood of "dark" money - shielded from the light of disclosure - behind such groups with noble-sounding names like Americans for Prosperity.

That's what the Koch Brothers are doing - they aren't just mounting millions of dollars of ads lying in order to destroy health care reform and clean energy development, but now they are buying up state and local elections - witness the experience in a tiny hamlet of Iron Ore, Wisconsin, where the Koch's have their eye on a $1.5 billion mine that the residents say will destroy their drinking water supply. They won (purchased) the election of four Council seats in order to secure favorable rulings.

Instead of redressing Citizens United, this decision is seen as restoring monetary power of the political parties which they had lost to the SuperPacs.

People are pretty upset about McCutcheon, on top of Citizens United. In fact, this ruling basically means that all campaign finance regulations (according to these 5 judges, anyway) is "unconstitutional." Thomas said so in his separate ruling that went even further and said there should be no limits on campaign spending at all. That probably renders public financing like we are contemplating, hoping for, working toward in New York State at a dead end.

Let's review, shall we: Scalia, who orchestrated the Bush v Gore ruling (violating the Constitution which gives the state authority over elections, setting aside Florida's Supreme Court’s order for a recount of all the ballots as required by Florida election law because the margin was so tight); said that individuals do not have a right to vote (it's not in the Constitution). He has also referred to the Voting Rights Act as an "entitlement" using the word as a pejorative, before overturning the key provisions. And he has said that gerrymandering is fine as long as it is used to give one party (the Republicans) an advantage over another party (the Democrats). And in Citizens United, he made corporations equal to people (though people are apparently not equal), entitled to the same Bill of Rights protections, and cash with free speech.

In other words, Scalia is a prime architect of One-Party Rule (also a supporter of the Unitary Executive as long as it is a Bush-like Republican in office, but not an Obama-like Democrat), and his conservative allies on the court are mounting this multi-pronged crusade to make sure that the elites control political power and set the agenda.

Keep in mind that elections have consequences. Bush's election resulted in tax changes that snowballed the growing income inequality in this country, whereby 90% of all income growth since 2009 went to the top 1%. This gave people like Dick Cheney an additional $100 million windfall money to put in their pocket - that's like taxpayers giving the oligarchs the pocket change to throw at politicians. Adelson isn’t spending his money – he is spending ours and reaping big returns on investment.

Scalia claims to be an “Originalist” – someone who has the power to divine the original intent of the “Founders” (as if they were infallible, rather than having the humility to recognize that the Constitution was a grand experiment). The logical progression of the "Originalists", then is to take up the billionaire Tom Perkins at his word - and next make voting like shares in a corporation - you get as many votes as your wealth.

"You pay a million dollars in taxes, you get a million votes," he said with a chortle.
After all, the Founding Fathers linked property to voting, only allowing white, male property-owners to vote. Scalia would have a better "originalist" argument there than equating money with speech which the Founders never did.

But, you say, we have had amendments to the Constitution since then, giving former slaves and eventually women the right to vote! Yes, and we also have the 14th Amendment granting "equal protection" under the law - but these Right Wing Supremes clearly ignore such a notion of "equal protection" in rulings which clearly make some people (the ultra wealthier) more protected under the law than other people (the masses).

You can almost hear violins playing, in the preamble to Chief Justice Roberts' opinion, as he defends the rights of oppressed billionaires:
"There is no right more basic in our democracy than the right to participate in electing our political leaders. Citi¬zens can exercise that right in a variety of ways: They can run for office themselves, vote, urge others to vote for a particular candidate, volunteer to work on a campaign, and contribute to a candidate’s campaign. This case is about the last of those options….

“Spending large sums of money in connection with elec¬tions, but not in connection with an effort to control the exercise of an officeholder’s official duties, does not give rise to quid pro quo corrup¬tion,” Roberts wrote. “Nor does the possibility that an individual who spends large sums may garner 'influence over or access to' elected officials or po¬litical parties. Citizens United v. Federal Election Comm’n, 558 U. S. 310, 359. The line between quid pro quo corruption and general in¬fluence must be respected in order to safeguard basic First Amend-ment rights, and the Court must 'err on the side of protecting politi¬cal speech rather than suppressing it'.”

In his scathing dissent, Justice Breyer wrote:

"[The Majority's] conclusion rests upon its own, not a record-based, view of the facts. Its legal analysis is faulty: It misconstrues the nature of the competing constitutional interests at stake. It understates the importance of protecting the political integrity of our governmental institutions It creates a loophole that will allow a single individual to contribute millions of dollars to a political party or to a candidate's campaign. Taken together with Citizens United v FEC, today's decision eviscerates our Nation's campaign finance laws, leaving a remnant incapable of dealing with the grave problems of democratic legitimacy that those laws were intended to resolve."

Breyer continues, "The result, as I said at the outset, is a decision that substitutes judges' understandings of how the political process works for the understanding of Congress; that fails to recognize the difference between influence resting upon public opinion and influence bought by money alone; that overturns key precedent, that creates huge loopholes in the law, and that undermines, perhaps devastates, what remains of campaign finance reform..."

The five Right Wing Supremes have justified Citizens United and McCutcheon using the New York Times as the stand-in for protecting corporate speech (conveniently failing to distinguish between the for-profit corporation that owns the New York Times, and the actual "free press" part that is already protected under the First Amendment).

But the two conflate together when you have billionaires like Rupert Murdoch, Philip Anshultz (The Washington Times,, and Sumner Redstone, CEO of Viacom, who use their media empires to achieve political and corporate agendas (like mergers, obtaining waivers from friendly FCC Chairman).
As Sumner Redstone said, "from a Viacom standpoint, we believe the election of a Republican administration is better for our company."

The various groups participating in the 140 demonstrations that were held around the country the day of the McCutcheon decision - Public Citizen,, CWA, Sierra Club, Common Cause, Food & Water Watch, Demos, Free Speech for People, People for the American Way - continue to work toward an amendment to the Constitution that establishes that money does not equal free speech and is not protected by the First Amendment, and secondly, that corporations are not people and do not have the same rights to people.

"No matter what five Supreme Court justices say, the First Amendment was never intended to provide a giant megaphone for the wealthiest to use to shout down the rest of us," said Robert Weissman, president of Public Citizen, a progressive watchdog group that supports campaign finance reforms. "Our only hope of overturning this McCutcheon travesty - along with Citizens United - is if millions of Americans band together in saying 'Enough!' to plutocracy."

"Today's decision favors a plutocracy, not a democracy," Lisa Oldendorp, the organizer of the Long Island demonstration, stated. "Americans want our voices and our votes to count. Everyone's voice should be sacred, no matter how rich or how poor you are - and our votes should carry equal weight.

"We will fight to overturn Citizens United and now McCutcheon v FEC."

And how do they intend to fight? The immediate reaction came from every group and every politician in a flood of emails, phone calls, mailings asking for – what else? Money.

Money for what? To pass campaign finance laws in Congress that even if they would pass, would be struck down by the Right Wing Majority intent on dismantling democracy responsive to the people? That has found in every instance against people's rights in favor of corporate rights?

Fight for an amendment? If you couldn't get a simple law out of Congress that is supported by 80% of the American people, how would you get an amendment that would need two-thirds majority, then two-thirds of the states? And how long would that take? Even the Equal Rights Amendment has never been able to pass (nor has Fair Pay Act, nor the minimum wage).

Roberts Gives the Answer: Quid Pro Quo

But Roberts pointed the way to attacking the problem. The answer comes from his own decision:

"This Court has identified only one legitimate governmental interest for restricting campaign finances: preventing corruption or the appearance of corruption. See Davis, supra, at 741. Moreover, the only type of corruption that Congress may target is quid pro quo corruption.”

The answer is for citizens groups and good-government groups to sue politicians directly for quid pro quo.

Take the lead from the legal battles mounted by right wingers against Obamacare, and file suit against politicians for Quid Pro Quo - and not just at the federal level, but state level too. It can be any level, because Roberts said that quid pro quo corruption is a crime.

Sue politicians, personally and directly, for proposing legislation written by lobbyists and special interests. Tie their votes back to the donors and SuperPacs.

There are surely plenty of instances - Wisconsin Governor Scott Walker passing pro-mining/anti-environmental and anti-union/pro-business legislation after receiving massive funding from the Koch Brothers and their sponsored SuperPacs; the anti-bankruptcy legislation written by banks; regulations protecting the Too Big to Fail Banks against prosecution. If you wonder why Big Ag continues to get tax subsidies while food stamps were cut to millions of needy families, you only need to follow the money (see which traces donations to legislators and how they vote).

Take the recent pilgrimage of 2016 Republican Presidential Hopefuls to kiss the ring of Nevada casino magnate Sheldon Adelson, who was single-handedly responsible for sustaining Newt Gingrich's presidential campaign (resulting in Gingrich's strong stance on Israel). Adelson does not want online casino gambling, which could cut into his mega-billions. Coincidence that Sen. Lindsay Graham (R-SC), a recipient of Adelson's largesse, is advancing just such a bill? I also would bet Adelson is hoping for a friendly administration to come in and shut down prosecution of him for violating the Foreign Corrupt Practices Act by bribing Chinese officials to expand his Macau gaming interests (the biggest source of his wealth).

Adelson makes $32 million a day from his casino operations, so spending $100 million in a campaign (as he did in 2012) is chump change - really an investment to earn bigger rewards - but is the equivalent of what 50 working families might earn after toiling for their entire lives.

Just this week, the New York Times, in an article discussing the political obstacles to addressing climate change, reported, "Lawmakers who back such efforts [bills to force greenhouse gas polluters like coal-fired power plants and oil refiners to pay to pollute], which represent a threat to the bottom lines of the fossil fuel industry, particularly coal, the nation’s top source of carbon pollution, have been criticized by campaigns from Republicans, Tea Party-affiliated 'super PACs' like Americans for Prosperity, and the coal and oil industries."

The biggest obstacle? Sen. Mitch McConnell who has taken $1.27 million in donations from fossil fuel companies from 1999 to 2011 ( citing Oil Change International). "In total, McConnell accepted $474,658 from oil companies from 2000 to 2008, making him a leading recipient of oil money."

Sue the bastards. Sue the Florida politicians who took money from ALEC and the NRA for Stand your Ground. Sue the state legislators for voter suppression laws written by ALEC which they received at lavish annual conclaves.

Who should sue? All the groups that have been harmed by legislators because of their legislation they sponsored after receiving payments: Brennan Center for Justice, Moveon.Org, Center for American Progress, TheOther98, Mayors Against Illegal Guns, Americans for Responsible Solutions, Natural Resources Defense Council, Democracy for America, Coalition for Human Needs, NYPIRG, People for the American Way, Public Citizen, Common Cause, Planned Parenthood, NOW (the list goes on and on).

Use which has traced the dollars flowing to candidates in conjunction with legislation they advance or block, the Center for Responsive Politics' and from the Center for Media and Democracy.

Follow the money.

Other Measures

In the meantime, here are other steps that could be immediately taken to mitigate against Citizen United and McCutcheon in order to at least stall the rise of the Plutocracy which would reshape the nation for generations to come:

The SEC should require corporations to disclose where they make political donations, and for certain amounts - either a percentage of gross receipts or a dollar amount (in the aggregate), should require shareholders to vote their approval of specific donations (not the amount). The SEC could do that today.

The IRS should enforce the law that is on the books that says Sec 501c4 tax-exempt groups must be "exclusively" (not partially, not mostly) for social welfare and not for political purpose - that should go for all groups, right or left. And the IRS should require disclosure of donors for any nonprofit doing political activity in a timely way - not years after an election.

The IRS should also go after the tax-exempt status of churches which brazenly advocate for candidates. (Sure, you have free speech, but then you don't get to get taxpayer subsidy.) The last time the IRS went after a religious institution it was for sermonizing for peace. That put the fear of God into liberal religious leaders to steer clear of anything remotely political, but now, Right Wing Faith-and-Freedom types are challenging the government to do something about it. (see "Pulpit Freedom Sunday: Pastors Challenge IRS Ban On Political Endorsements".)

And the Federal Election Commission has to step up its game - it has been willfully impotent. The FEC was created by Congress in 1975, largely in response to Watergate, to administer and enforce the Federal Election Campaign Act (FECA) that governs the financing of federal elections. The duties of the FEC, which is an independent regulatory agency, are to disclose campaign finance information, to enforce the provisions of the law such as the limits and prohibitions on contributions, and to oversee the public funding of Presidential elections.

But the best strategy is to hold politicians to account for the laws they advocate.

Make them think twice about who they are responsible to.

Make this the rallying cry:

QPQ PDQ (pretty damn quick).

See also:
Long Islanders rally: Supreme Court McCutcheon ruling is blow to fair elections and slideshow

Karen Rubin, Long Island Populist Examiner
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