Citizens United and the 2012 election

We thought the Congressional elections in 2010 were heavily influenced by PACs after the Supreme Court Citizens United decision but we actually did not get the full impact.  While the case was decided with various concurrences and dissents in part,  it upheld the right of corporations to have free political speech.  Because, as Mitt Romney can tell you, “corporations are people, too.”  So now we are reaping what the Supreme Court sowed.  Secret money is flowing to Super PAC’s and influencing the Republican primary.  And anyone who says that it is OK because unions have the same rights is mad.  Sheldon Adelson, a casino magnate, just dropped $5 million to shore up a pro-Gingrich PAC.  No union I know could do that.  New York Times published this account on the 9th

But on Friday, the cavalry arrived: a $5 million check from Mr. Adelson to Winning Our Future, a “super PAC” that supports Mr. Gingrich. By Monday morning, the group had reserved more than $3.4 million in advertising time in South Carolina, a huge sum in a state where the airwaves come cheap and the primary is 11 days away. The group is planning to air portions of a movie critical of Mr. Romney’s time at Bain Capital, the private equity firm he helped found.

The last-minute injection underscores how the 2010 landmark Supreme Court ruling on campaign finance has made it possible for a wealthy individual to influence an election. Mr. Adelson’s contribution to the super PAC is 1,000 times the $5,000 he could legally give directly to Mr. Gingrich’s campaign this year.

And Mr. Adelson is not the only one.  Most contributors are hidden.

So what can we do about this?  Martha Coakley, Masschusetts Attorney General  writes in the Huffington Post that we need a Constitutional amendment to make it clear that corporations are not people.

There is a national movement afoot to amend the Constitution to make clear that the First Amendment applies only to people and not corporations. Several proposed amendments have been introduced in Congress, including the so-called “People’s Rights Amendment” introduced by Congressman James P. McGovern with bipartisan support. Further, at least 10 states, including Massachusetts, have introduced resolutions calling on Congress to pass one of these proposed amendments.

I was proud to join with 25 other state Attorneys General during the Citizens case in filing a brief urging the Supreme Court to leave the states’ ability to regulate and restrict corporate political spending intact. And I am proud to be the first state Attorney General to call for passage of a constitutional amendment to reverse the Citizens decision.

But Constitutional amendments take time and the outcome of an effort is never certain.  I remember working for the Equal Rights Amendment which finally failed.  The ideal may be that states should be allowed to make their own regs for their states.  Montana is already headed in that direction with the recent Montana Supreme Court ruling that Citizen’s United does not apply to Montana campaign finance laws.

Last Friday [December 30, 2011], the Montana Supreme Court upheld the constitutionality of a 1912 voter initiative – the Corrupt Practices Act – that prohibits corporations from making contributions to or expenditures on behalf of state political candidates and political parties. In 2010, the Supreme Court ruled that a similar federal prohibition was unconstitutional, prompting a wave of bills and court rulings that erased prohibitions on corporate and union political expenditures around the country.

“For over 100 years, Montana has had an electoral system that preserves the integrity of the political process, encourages full participation and safeguards against corruption,” state Attorney General Steve Bullock said in a statement after the ruling, adding, “the [Montana] Supreme Court’s decision upholds that system and is truly a victory for all Montanans.”

 Montana Supreme Court

Of course it will be appealed.

Besides state by state fights and the long road to a Constitutional amendment, President Obama could issue an Executive Order.  He could direct that any company that gets any federal money has to disclose its political contributions.  Remember that corporations are people.  People who give money have to say they are citizens and who employs them.  It makes sense that corporations have to make some disclosures also.  Steven Rosenfeld writing in AlterNet thinks this is a possibility.

“It’s simple—any company that is paid with taxpayer dollars should be required to disclose political contributions,” said Rep. Anna Eshoo, D-Calif., who has pushed for the White House to issue the order. “With public dollars come public responsibilities, and I hope President Obama will issue his executive order right away.”

The order, if issued, would likely be the only campaign finance initiative to emerge from Washington this year as nothing is expected from Congress. It would take effect after the Federal Acquisition Regulatory Council adopts new disclosure rules. That could come as the 2012 election season moves beyond the primaries and it would offer a new way to see who is behind the newest independent groups spending millions on political attack ads.

Spending on federal contracts was $541 billion in 2010, which was about 4 percent of the gross domestic product, according to the Congressional Research Service, and almost 15 percent of the federal budget. The top 100 contractors are some of America’s biggest firms, and include support services for the military overseas, weapons makers, computer companies, telecommunication firms and other service providers. Companies that could fall under the disclosure order employ about 22 percent of the domestic workforce, CRS said. 

When the possibility of an executive order was last floated, Congressional Republicans and the Chamber of Commerce rose up in arms.  Maybe now that they see the distortion money is causing in the Republican primaries, the Congressional Republicans, at least, will change their tune.  Given the growing awareness of Super PAC’s through the sheer volume of advertising being unleashed in South Carolina, the average citizen may well decide to support measures to mitigated their influence.

Is Massachusetts turning Purple?

Massachusetts, the proud commonwealth that voted for George McGovern, has voted for the first Tea Party senator.  I’ve been too busy (and depressed) to write about it, but I’m slowly becoming philosophical about it all.  As Brian McGrory wrote in the Boston Globe the day after

I’m going to need some Advil and a cold compress, please. I’m the Massachusetts Electorate, and I have what is bar none the absolute worst hangover of my entire voting life.

Seriously, I was so drunk on power, so caught up in the moment, so free of any of my usual inhibitions, I can’t remember what’s gone on these last two weeks. Think, Electorate, think. What did I do?

McGrory goes on to describe the Massachusetts electorate’s seduction by Scott Brown.

And now I’m vaguely recalling that stranger across the room, the one in the barn jacket who kept smiling at me and seemed to know my name. Martha vanished for a while, and – is it bad that I’m saying this? — I didn’t really care.

Suddenly, that tall, handsome man was standing at my side doing something that Martha rarely did – offering to pay for drinks, chatting me up, curious what was on my mind.

Every time I ever tried telling Martha about my day, my hopes, my dreams, she shushed me up and said she was preparing a legal brief or watching Law & Order. And now there’s a stranger telling me he could change my entire world.

I had been hoping that Coakley might pull out the race – even if it were by a few votes – until she spoke at the Martin Luther King Day breakfast.  Speaking before a friendly audience which loves it’s politicians, Martha did not get a standing ovation or a “you go, girl” shouted from the audience.  Martin Luther King, III was more eloquent on her behalf than she was and he lives in Atlanta.  That was when I began the process of resigning myself to the inevitable.

There were lots of reasons she lost.  She ran a very poor campaign and Martha has always seemed uncomfortable campaigning, pressing the flesh.  She always talks like a prosecutor.  I represented the Somerville Women’s Commission on her Violence Against Women Task Force and I know she believes all the right things.  She would have made a good, hard-working Senator but she never made the case.  Maybe she thought until the polls started to turn that she didn’t have to work hard for the seat.  Democrats appeared to have voted for her.  She lost the swing independents.

Where were her Emily’s List supporters that helped her defeat Mike Capuano in the Democratic Primary?  Why didn’t she have the money to advertise more?  (probably too many people like me who wanted to vote for her, but didn’t feel moved to give her money.) She never, that I recall, ran an ad that defined who she was as a person.  One that showed her with her dogs and husband walking on the Charles River or something.  We all learned about Brown’s truck.  Unions and other supporters didn’t seem do much.  Was it because they thought she was a shoe-in or because she didn’t find a role for them in her campaign?  (there are rumors to that effect)  Instead of reaching out to the independents and Republicans, I’m sure we were like every Democratic household  in the Commonwealth:  We got robocalls from everyone about her.  President Obama, Bill Clinton, and Angela Menino, the Mayor’s wife.   (We have to find a better way to get the word out and get people out to vote than all these endless calls.  I stopped answering the phone.)  But with all the calls, she never fired up her base.  She’s running for re-election for Attorney General now and maybe that will go better.  People may feel more comfortable with her as their lawyer and than with her as senator.

Meanwhile we have to face the reality that Scott Brown is our Senator for the next 3 years.  He once pointed out that it was 3 years, like a test drive, and we could vote him out if we didn’t like what he did.

I like Congressman Capuano’s take during an interview with one of the local public radio stations

Political watchers have already begun talk of Capuano mounting a challenge for Brown’s Senate seat in 2012, but Capuano laughed off that idea.

“I have never in my life had the luxury of planning my political career three years in advance. I think we need to let Mr. Brown have an opportunity to prove himself, to prove whether he is the independent he claims to be or whether he’s a lockstep Republican or something in between. I hope he’s a great senator for Massachusetts.”

I don’t know if Mike would have been able to beat Brown, but he would have gone down with a fight, not a whimper.

The Massachusetts Senate Election

On the 19th, we get to vote for a new Senator.  And although the Rasmussen poll has Scott Brown, the Republican, within 10 points, I am willing to guess the margin will be more like 12 to 15 for Martha Coakley, the Democrat .  Believe it or not, I wrote that on Saturday before the Boston Globe poll was published today showing Coakley with a 15 point lead.  (There is also a Libertarian, Joseph Kennedy – not one of the Kennedys.  They have endorsed Martha.)

I favored Congressman Michael Capuano in the Democratic primary, but it will be good to elect a woman Senator for the first time.  Besides the fact that Mike was once my boss when he was Mayor of Somerville, I have only partially forgiven Coakley for her intransigence on the Fells Acre child care case she prosecuted as Middlesex County Assistant DA.  As far as federal issues go, there was not a lot of difference between them 

But I became solidly in Martha’s court after Scott Brown said that while he didn’t favor torture, it being against the Geneva Convention and all, he was in favor of waterboarding which, according to him, is not torture.  Coakley disagrees, agreeing with the Obama Administration policy.  Brown’s endorsement of waterboarding became the subject of a great Wasserman cartoon

 Brown has been running ads comparing himself with John F. Kennedy which don’t seem to have helped him much.

According to the poll released today

Half of voters surveyed said they would pick Coakley, the attorney general, if the election were held today, compared with 35 percent who would pick Brown. Nine percent were undecided, and a third candidate in the race, independent Joseph L. Kennedy, received 5 percent.

Coakley’s lead grows to 17 points – 53 percent to 36 percent – when undecideds leaning toward a candidate are included in the tally. The results indicate that Brown has a steep hill to climb to pull off an upset in the Jan. 19 election. Indeed, the poll indicated that nearly two-thirds of Brown’s supporters believe Coakley will win.

“She’s simply better known and better liked than Brown,’’ said Andrew E. Smith, director of the University of New Hampshire Survey Center, which conducted the poll for the Globe.

Coakley is seen as strongest on health care, the issue that 31 percent of respondents said was the most important. Fifty-one percent said they trusted Coakley to best handle the issue, with only 29 percent saying Brown.

Brown has trumpeted the prospect that he would be the 41st vote to block the health care proposals before Congress, while Coakley has said she would proudly cast the 60th vote to prevent a filibuster and grant final approval for the legislation.

The war in Afghanistan was the best issue for Brown, with 34 percent saying they trust him, compared with 35 percent for Coakley. Brown, a National Guardsman, supports President Obama’s plan to increase troop levels in Afghanistan; Coakley opposes it.

The turn out will be very light and with the Democrats holding the edge in party registration all Martha has to do is to get more voters out.  The ten day weather projection calls for temps around freezing and partly sunny in Boston. 

Looking at November in January

The Republicans are hopeful that they will take over the House and the Senate.  When it is the 5th of January, anything is possible, but there are some signs that it might not be easy - especially in the House.

Writing in today’s Washington Post, Chris Cillizza writes about Republican House retirements.

While the recent political chatter in Washington has focused on Democrats retiring from Congress, Republicans are leaving the House in greater numbers, a trend that could blunt the party’s momentum heading into the November midterm elections.

Rep. Henry E. Brown Jr. (S.C.) on Monday became the 14th Republican to announce that he will not run for reelection this year. Ten Democrats have said the same, including an attention-grabbing four in the past two months from swing and Republican-leaning districts.

A broad look at those seats suggests more parity, in terms of the two parties’ opportunities and vulnerabilities, than conventional wisdom would suggest.

There are also potential money problems for Republicans.  Politico reported the other day

The National Republican Congressional Committee, the key cog in helping to finance GOP campaigns, has banked less than a third as much money as its Democratic counterpart and is ending the year with barely enough money to fully finance a single House race — no less the dozens that will be in play come 2010.

 A big part of the problem, according to Republican strategists, is that GOP members themselves — the ones who stand the most to gain from large-scale House gains — haven’t chipped in accordingly, despite evidence of solid opportunities in at least 40 districts next year and with as many as 80 seats in play, according to the Cook Political Report’s estimates.

The fundraising disparity between the two committees is striking: The DCCC outraised the NRCC this year by more than $18 million, according to FEC figures at the end of November. The NRCC has only $4.3 million left in its campaign account — with more than $2 million in debt — leaving it with just a pittance to fund the dozens of races it hopes to aggressively contest.

The DCCC, meanwhile, is sitting on a $15.3 million nest egg (with $2.6 million owed), steadily expanding its cash-on-hand advantage over Republicans throughout the year.

It is always possible that more Democrats will retire (Senator Dorgan – D  N.D. just announced he was not going to seek reelection for example) and change the equation again, right now it does not look as if the Republicans can retake the House.  Lose some seats, yes, but not enough to lose the majority.  It is also possible that the Republicans will start coughing up more money.  January is very early.

But there is a Senatorial election here is Massachusetts in two weeks.  While one poll shows Republican Scott Brown within single digits, it is curious that he is getting no financial support from national Republicans.  Is this a concession to Martha Coakely?  If you think about it the Rasmussen Poll could help Martha by making her supporter nervous enough to work hard to get out the vote. 

I think Massachusetts is safe for the Democrats, but the rest of the Senate is unclear.

Obama reversal on Defense of Marriage Act?

I have written about several of the lawsuits filed asking for repeal of the Defense of Marriage Act or DOMA.  One was filed by Massachusetts Attorney General Martha Coakley.  Then Bill Clinton came out and said it was time for repeal.  Now it appears that the Obama administration is taking some positive steps toward repeal. 

According to stories by Josh Gerstein for Politico.com and the Washington Post, the newest brief filed by the Obama Justice Department contains language that makes opposition explicit.

President Obama made clear Monday that he favors the repeal of the Defense of Marriage Act, and intends to ask Congress to repeal the 13-year-old law that denies benefits to domestic partners of federal employees and allows states to reject same-sex marriages performed in other states.

Obama has long opposed the law, which he has called discriminatory. But his Justice Department has angered the gay community, which favored Obama by a wide margin in last year’s election, by defending the law in court. The administration has said it is standard practice for the Justice Department to do so, even for laws that it does not agree with.

The Justice Department did so again Monday in its response in Smelt v. United States, a case before a U.S. District Court in California. But, for the first time, the filing itself made clear that the administration “does not support DOMA as a matter of policy, believes that it is discriminatory, and supports its repeal.”

According to Gerstein

In a brief filed Monday morning in a lawsuit challenging the validity of DOMA, the Justice Department put on the record that the administration favors repeal of the statute — a position that was omitted from a controversial legal filing the department made in June. DOJ also explicitly rejected arguments put forward by conservative groups that the importance of marriage for child rearing is a legitimate justification for DOMA’s ban on federal recognition of same-sex unions.

On the child-rearing issue, Simpson wrote:

The government does not contend that there are legitimate government interests in “creating a legal structure that promotes the raising of children by both of their biological parents” or that the government’s interest in “responsible procreation” justifies Congress’s decision to define marriage as a union between one man and one woman. … Since DOMA was enacted, the American Academy of Pediatrics, the American Psychological Association, the American Academy of Child and Adolescent Psychiatry, the American Medical Association, and the Child Welfare League of America have issued policies opposing restrictions on lesbian and gay parenting because they concluded, based on numerous studies, that children raised by gay and lesbian parents are as likely to be well-adjusted as children raised by heterosexual parents. … The United States does not believe that DOMA is rationally related to any legitimate government interests in procreation and child-rearing and is therefore not relying upon any such interests to  defend DOMA’s constitutionality 

This is a great development.  I hope that Obama does not wait too long for Congress to act before he issues a repeal by Executive Order.