Without media coverage, Schneiderman couldn't do much so our campaign finance integrity problem did in fact get exponentially worse.
In dismissing Montana's Supreme Court ruling without even hearing oral arguments, the SCOTUS trashed that state's 1912 anti-corruption law, expanding Citizens United fractally so it now affects every campaign in the land, down to local school board elections.
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Montana urged the court to reconsider it's original ruling
, compiling evidence to disprove the claim that there was no proof of corruption, or even the appearance of corruption found, when corporations fund campaigns. Montana sought to assert it's right to regulate the state and local races Citizens United
never addressed when it struck down federal limits in McCain-Feingold (also known as the Bipartisan Campaign Reform Act).
With the court due to rule on the Montana challenge by the end of June, Schneiderman by late May had notified the states the court was seeking to annul many of their legal precedents, overriding longstanding state laws that prevent outside corporations from coming into a state and outspending it's people during elections.
Leading twenty one state AGs, Schneiderman submitted an amicus brief
to the Supreme Court arguing that races on the state and local level are markedly different from high-profile federal elections, with a hundred years of recorded evidence to show how corporate cash has perverted outcomes from coast to coast. This reinforced the argument brought by Montana, whose history is scarred by corruption going back to merciless mineral exploitation, claim jumping and frontier justice meted out by robber barons outside Montana's borders.
Montana's Corruption Shocks America to Core
Montana's elections were so blatantly bought and owned that Mark Twain wrote in 1907 about mining monopolies openly financing the campaigns of "Copper King" William Clark:
"He is said to have bought legislatures and judges as other men buy food and raiment. By his example he has so excused and so sweetened corruption that in Montana it no longer has an offensive smell."
Clark, who also owned a newspaper is said to have offered ten thousand dollars to any state legislator to pick him in Montana's race for senator. It worked, but the US Senate refused to seat Clark because of the audacity of the bribes. Long after Clark famously retorted "I never bought a man who wasn't for sale", his example led to passage of the 17th Amendment
to the US Constitution, mandating direct election by the people instead of appointment by state legislature.
Because Clark's power play was technically not illegal, Montana also passed an anti-corruption law
that had protected it's election from corporate plunder until now. Now, there is no limit on corporate spending during Montana's elections, meaning out-of-state interests can now return to exploit their natural resources.
Schneiderman tried to prevent this, entering into the record a pointed rebuttal of the original January 2010 Citizens United v. FEC ruling which introduced details from the "factual, actual record".
A bipartisan block of Attorneys General from AK, CA, CT, DE, HI, ID, IL, IA, KY, MD, MA, MN, MS, NV, NM, NC, RI, UT, VT, WA, WV joined NY in questioning Justice Kennedy who wrote for the majority that First Amendment "independent expenditures including those made by corporations do not give rise to corruption nor the appearance of corruption".
Kennedy sees corporate spending as protected free speech, claiming there have not been cases that show a direct quid pro quo transaction, linking a specific payment to a singular action. Scheneiderman believes that Kennedy was being coy - obviously, secret donors would never put anything on the record like "here's fifty grand for that NO vote on Bill 26", but there is an abundance of evidence to prove the appearance of corruption, had Kennedy bothered to listen.
In his dissent of the original ruling, Justice John Paul Stevens said there was a substantial body of evidence showing many "corporate independent expenditures...had become essentially interchangeable with direct contributions in their capacity to generate quid pro quo arrangements."
Schneiderman notes Kennedy failed to back his explicit, game-changing claim with concrete evidence in the first place. The numbers show wealthy donors to political campaigns see bountiful returns on their "investment", crowding out the voice of the average citizen. But evidence of the appearance
of corruption is proven simply by listening to the American people. Research from Harvard, Columbia and UPenn confirms
recognizes overwhelming public perception that elections are corrupted by money and that lower courts have long used these studies to affirm the perception of corruption. So why would the Supreme Court gloss over this? Read on...
The Mere Threat of Spending
Rhose Island Senator Sheldon Whitehouse, himself a former prosecutor in public corruption cases, says the finding of fact
used in the original Citizens United decision was fatally flawed - a Supreme Court justice should know that any time you grant someone a power, such as giving a corporation the ability to spend unlimited money in an election, you give them an even more convenient weapon, the capacity to threaten
to spend against someone.
This is a massive opportunity for corruption, an unwritten, untraceable, unpoliced power which need not even be used but merely suggested - Senator Whitehouse knows elected officials and candidates would not even need to be told what to do, they would just understand that those with money, if crossed, could now spend against them at any time, chilling their speech and guiding their actions. This not only changes our campaigns, it changes how our leaders will now govern.
Schneiderman and The Bigger Picture
Each time Schneiderman is asked about the "slow or no" progress in his struggle to prosecute the mortgage fraud that brought the economy into the ditch, he seems to pivot to the wider, endemic electoral crisis in our system. The "legalized" fraud and sweetheart settlements
are but a symptom of this bigger fight against "free speech" pay-for-play. For example, Congress refused to fund staff to investigate the economic crimes, and has been de-fanging the provisions in the Dodd-Frank financial reform bill on a daily basis. By this, Schneiderman surely means Congress is bought and we must stop it from getting worse. But nationally, few candidates beyond Elizabeth Warren are running on promises to curb the power of corporate cash.
Such is the allure and fear of the $80 million spent in the Scott Walker recall election, surely just an indication of what's to come. Now that anything goes in local races too, anyone can buy ads, billboards, junk mail, robocalls or even hour-long infomercials from any part of the country.
Schneiderman explains foreigners are permitted from donating "outside" money to campaigns because it's an American value that the electorate within a jurisdiction is supposed to choose it's own representatives. Still, the court struck down
your state's right to stave off exploitation and clearly documented harm by overwhelming spending, even in judicial and law-enforcement races such as sheriffs and DAs. But why?
Ironically, the Supreme Court is itself under a pall of unprecedented accusations of payoffs and improprieties. You don't hear about it through network media, but Justice Clarence Thomas' wife was paid
$680,000 by the Heritage Foundation and other groups even as Thomas was deciding the issues she had worked on.
Astonishingly, Thomas hid this
for 13 years in disclosure filings, and amended his filings without comment after being caught. Thomas also failed to disclose
that a four-day cross-country hotel stay was paid for by by political operatives as he met in secret with the Koch brothers and their key fundraisers. Thomas and Justice Antonin Scalia both drew criticism for not recusing themselves for the Citizens United
ruling after the Kochs were found
to have funded groups who filed amicus briefs to the court explaining which way they should rule.
Thomas has another sugar daddy in Harlan Crow, a real estate magnate who gave Thomas gifts worth over $35,000 but gave his wife half a million dollars to start a tea party group. Crow, a generous donor to partisan causes like Swift Boat Vets Campaign spent millions on building a museum in Thomas' hometown and was suspected of secretly shuttling Thomas around on his plane and yacht in violation of ethics rules. The NY Times reported
in 2011 that Thomas seems to have fibbed about travel on his disclosure forms.
As noted by E.J. Dionne
, Antonin Scalia boarded Air Force Two for a duck-hunting trip with vice president Dick Cheney three weeks after the Supreme Court announced it would hear a case over whether the White House needed to turn over documents from Cheney's secret energy task force meeting. As a result, arrangements made between the Bush administration and energy company CEOs were kept quiet, enabling the Enron debacle, new risks in deepwater drilling, and sweet loopholes for hydrofrackers.
In the history of the high court, only the Abe Fortas scandal approached this level of impropriety
, but unlike Fortas who resigned once discovered, the conservative justices of today press ever further, now sullying the reputation
of the court.
The Secrecy of 'Free' Speech
In the aftermath of the decision, the next big debate concerns the secrecy of large donations. Justice Kennedy has also said that the reason he didn't find corruption is because disclosure
lets the public know who is behind the spending. Yet we have no laws requiring disclosure while the biggest super PACs boast about guaranteeing anonymity for donors. Is this not a form of deception? Bill Moyers calls out the "cowardly lions of free speech" here
as billionaires won't own their own "freedom".
In a minor victory this weekend, the FCC finally required
TV stations in the country's fifty biggest television markets to post political expenditures online, but the public hits a brick wall when they see only PO Box addresses and listings for mysterious shell entities like "OpsPAC". Broadcast news agencie
Venerable SCOTUS reporter Lyle Denniston
predicts the secrecy issue is the only way we could see the court (in this configuration) reconsider Citizens United
again, with challenges currently moving up through lower courts.
With the transparency requirements in the DISCLOSE Act failing to advance in the Senate because of a filibuster just this week
, it's possible the issue of could be held against Republicans running for re-election. There's also been an uptick in active protest
against secretive super PACs like Karl Rove's CrossroadsGPS.
Legislatures in major cities like San Francisco, Los Angeles, Oakland, Santa Monica and New York have passed resolutions
condemning Citizens United
while state legislatures in Hawaii, Vermont, Maryland, Rhode Island and New Mexico have called for a Constitutional amendment to overturn the decision.
Attorney General Schneiderman tried. On the Brian Lehrer Show
he warned New Yorkers what was unfolding and even had his campaign begin a petition drive
around the issue. Beyond listener-supported stations like WNYC however, the story went ignored. Remember the biggest beneficiaries of the Citizens United
decision will be the media, where all this extra money is spent.
The 2010 midterms were the first time I can remember hearing back-to-back ads for the same candidate, and 2012 is expected to rain money down on media companies and their network affiliates, expected to top $3 billion this year. Though media cannot charge "premium" rates for political ads, airtime for product ads become more scarce, which can drive up profits anyway.
This enticing new cash cow has prompted the broadcast industry to actively lobby against
transparency, abdicating their traditional role as watchdogs whose newsrooms and journalists once fought for open, public records.
Some of the implications for state and local races are interesting. Particularly in small, under-the-radar races where just a few hundred votes mean the difference, opportunities now exist for corporations to scoop up local air time, giving a favored candidate a decisive edge in name recognition, or smear opponents who may have not have a comparable budget.
It's important to note that candidates and the organizations buying ads for them are not supposed to coordinate activities, but with every race in every state, large or small now covered by Citizens United, it's hard to imagine any agency capable of handling the volume of monitoring, investigating or enforcing the rules.
Already, the NY Times
points out Mitt Romney's campaign and Restore Our Future super PAC share media consultants and addresses, meaning the prohibition has been flouted from the start and is there is no enforcement at the highest levels.
If unscrupulous campaign financing is the same ill underlying all major crises from war to pollution to financial fraud, the Montana reversal will ultimately prove bigger than the health reform debate. So why aren't we hearing about it? The media doesn't want "disclosure" endangering their new multi-billion dollar revenue stream.
Because campaign finance is the one issue to rule them all and bind them, the ability for corporations to influence government just grew tremendously in every area. It won't be long before the monied interests fan out to plant flacks into state legislatures using cookie-cutter templates for campaign operations including polling, PR and covert trickle-down financing. Oink.