That’s what Sen. Ben Cardin apparently thinks, or at least so I heard him say on the radio this morning.
To be generous, I’m going to go out on a limb and say that I doubt he really believes that and he’s only making such statements because they’re politically convenient.
Damning with faint praise? The alternative is much worse. Here are 10 Supreme Court decisions that Cardin would potentially be ranking as less offensive than Citizens United.
- Dred Scott v Sandford – I believe most people are familiar with this case, where the Supreme Court held that no African American could be considered a U.S. citizen and further held that slaves could not be freed by transport into free states.
- Schenck v United States – A lesser known case, here the court ruled that the defendant, who had protested the draft during WWI, was not protected by the First Amendment when making such speech. As a result Schenck was imprisoned for printing and distributing pamphlets critical of the draft.
- Buck v Bell – One of the multiple opinions on this list written by Oliver Wendell Holmes, the Supreme Court upheld a government policy of compulsory sterilization of the unfit, including the mentally handicapped. It is particularly notorious for Holmes quip “Three generations of imbeciles are enough.”
- Plessy v Ferguson – Another well known case, the Supreme Court ruled in this opinion that the policy of “Separate, but Equal” did not violate the protections guaranteed by the 14th Amendment.
- Bowers v Hardwick – A disgustingly recent ruling (determined in 1986), the Court held that it was permissible to jail homosexual men and women for consensually engaging in oral and anal sex.
- Wickard v Filburn – A Depression era case, Roscoe Filburn, a farmer, had been growing wheat in excess of government set caps but was only using it for use on his own farm. The Court ruled that the government could legitimately require him to destroy the excess wheat and pay a fine on the basis that this wheat, grown for personal use only, constituted interstate commerce.
- Korematsu v United States – A case from WWII, Korematsu was suing the U.S. government to overturn FDR’s executive order placing all persons of Japanese ancestry into internment camps without any trial or charge. The Supreme Court upheld the order, claiming no wrongdoing on the part of the government.*
- Kelo v City of New London – A recent case, the Supreme Court ruled that a government can rightfully take private property and then transfer it to other private entities on the mere basis of it serving a “public purpose,” such as claims of increased jobs and tax revenue.
- Gonzales v Raich – Another recent case, the Supreme Court ruled that the federal government can legitimately prevent individuals from growing medical marijuana for their own use, even in states that allow medical marijuana. This case is particularly objectionable due to the Commerce Clause understanding used in the decision, an extension of the Wickard logic that growing marijuana for personal use would impact the interstate market for marijuana, a market entirely outlawed by federal law.
- The Slaughter-House Cases – In this case, the Supreme Court upheld a slaughterhouse monopoly granted by the state of Louisiana. The case matters however as it was the first test of the 14th Amendment and the Court signfiicantly narrowed the interpretation of it, effectively erasing the Privileges and Immunities clause by limiting it to only guaranteeing a few select items such as national citizenship and rights accruing out of the existence of the federal government, like the right to a passport or right to travel the waterways of the U.S. or to petition Congress.
Given the above, it seems abundantly clear to me that the Citizens United decision isn’t one of the worst Supreme Court rulings ever, it isn’t even in the top 10 of the worst rulings. And if you look at the effects of the rulings, on a scale of magnitude, any ill effects of Citizens United (and I think it’s debatable to what degree they are problematic) are minuscule in comparison to the 10 cases above.
Of course that means that Sen. Cardin either has an incredibly deranged moral compass and honestly thinks Citizens United is on a par with these cases or he is simply saying it because he thinks it is politically convenient (I’ll do him the service of assuming he is familiar with the history of Supreme Court jurisprudence).
Now as I said, I can’t believe that Sen. Cardin is the kind of monster that would think letting corporations independently spend money on political ads is worse than denying citizenship to African Americans, taking away free speech rights, sterilizing the mentally handicapped, enforcing racial segregation, jailing adults for consensual sex, punishing people for growing crops for their own use, imprisoning people on the basis of their ethnicity, stealing their property to enrich already well-off others, keeping individuals from growing medical marijuana in compliance with state law, or letting states trample civil and economic liberties.
However if I am right, and Sen. Cardin is only making these sort of claims about Citizens United, when it’s not even in the top 10 of worst cases, then it is incredibly insulting to the people of Maryland that he thinks we would fall for that.
It would have to mean that he either thinks we are complete ignoramuses that don’t know anything about Supreme Court history or we are moral degenerates that truly think Citizens United worse than the cases above.
If that is Sen. Cardin’s assessment of the electorate, neither speak particularly well of him nor give reason to want to see him re-elected.
*The Korematsu case is a bit personal to me. My grandmother and great-aunt, both U.S. citizens at the time were imprisoned in internment camps along with their parents and other relatives.
Lainey Harrison says
I think you took his statement a little too literally. One of thousands or one of hundreds or one of 10, he did not expound. However I believe it is safe to say this decision was not one of better ones made by the Supreme Court.
A few years back our Congressman Andy Harris said he served in the Gulf War. He didnt really mean he served in the Middle East. He didnt really mean he served on a battlefield. Heck, he wasnt even far from home, he “served” at Bethesda Naval Hospital, stateside, sleeping in his own bed every night. How insulting was that to those who fought for our country? How arrogant of him to tout his “service”? Was he trying to make folks think he was some big war hero? Does he think we are all stupid? Lets not re-elect Andy based on something he said in general either then.
Kevin Waterman says
Lainey,
You’ve struck at what was one of intended points in the piece – people get overly bent out of shape over recent developments. People claim that every election is the most important election of our lives, every Supreme Court decision is the worst one ever (as far as that goes, I don’t like or particularly agree with the ACA ruling, but I certainly don’t think it’s the worst decision as some on the Right are saying right now). I was trying to, somewhat humorously, point out that no matter how much someone dislikes a Supreme Court decision there’s a fairly good chance there are many that are much, much worse and it does a disservice to everyone to speak otherwise.
Lainey Harrison says
The problem here is you are only slamming Cardin. That is not funny- that is political. Alot of people agree with Cardin, that Citizens United was one of the worst – not the number one evil or the number 5 evil, just one of the evils. He expressed his opinion. Andy was not expressing an opinion. he was outright lying. He did NOT serve in the Gulf war arena at all, he served during the time of the Gulf War. Where are your jokes about Andy serving in the Gulf?
Kevin Waterman says
Lainey,
Given that, in my assessment, we haven’t been in a plausible war of self-defense since WWII, I don’t particularly care one way or the other if someone served in the military since then and I don’t see it as something that ought to be considered as a qualification for office. In contrast I do think people’s assessment of Supreme Court jurisprudence matters quite a bit so that’s why it strikes me as more important to push back against the idea that Citizens United is a monumentally bad decision in the Court’s history.
Second, as I noted in my comment, I think my fellow travelers on the Right were out of their mind describing yesterday’s decision in the same sort of terms, so my critique here is equally applicable to them as well. I didn’t care for the decision and would have liked to see a different outcome, but in comparison to these decisions it, like Citizens United, is small potatoes (plus I think it’s a long-term win for limited government by placing some limits on the ability of Congress to use the Commerce Clause and the Necessary and Proper Clause as justifications for action).
Lainey Harrison says
So you support Andy Harris, known liar, because that wasn’t really a war? He can lie about his military service and your’e okay with that because military service is not a pre-requisite for the job? Cardin gets slammed by you for expressing his opinion on a Supreme Court case. I think I will support the honest fellow who is expressing opinions rather than liar posing as something he is not. Integrity is everything.
Kevin Waterman says
Where did I ever say that I support Andy (not saying I don’t either). I’ll readily admit I voted for Andy both times he ran against Frank Kratovil, but that’s because, on net, I think Andy is better on policy questions than Frank was. As far as military service goes, I never paid any attention to it because frankly I didn’t and still don’t care about it.
My point in my previous comment was that I do however care about how people think of Supreme Court jurisprudence and that it is therefore, at least in my assessment, an issue of much more salience and importance than how someone portrayed their military career.
When you operate in a world of limited resources, particularly time, you have to pick and choose what you focus on, so I try and focus on issues that I think are of the largest import. Pushing back against the idea that Citizens United was one of the worst Supreme Court decisions ever is (in my opinion anyway) a lot more significant than digging into claims about military service that no one ought to care about anyway.
Jim says
Au contraire, Mr. Waterman! If left as is and viewed in the context of other recent decisions, the Citizens United case does indeed have the potential to take its place among the worst SCOTUS decisions ever as you have enumerated. Citizens United once and for all removed the illusion that ours is a one-person-one-vote democracy. It made it explicit that our government is, in fact, coin-operated; it’s now one dollar, one vote. It is only a question a time before the amount money being raised and spent in our post-Citizens United elections breeds breathtaking levels of corruption and before foreign money is found to be surreptitiously funneled into our elections though super-PACs.
Also among the worst SCOTUS decisions was the 2000 case of Bush v Gore. Here the Court clearly established that the right of the people to directly elect our leaders is not absolute; it’s only an illusion subject to the whim of the Court.
And finally, as of date of this writing, the overturning of the Affordable Care would complete the hat trick. If the ACA is overturned in a 5-4 decision it will be clear that the SCOTUS sees itself not as one of three co-equal branches of government but Supreme over the other two. They will have removed the right of the legislative branch to make laws that five right-wing ideologues happen to disagree with. Imagine that, only five people have the power to say that progressive legislation is not to be tolerated going forward.
Stay tuned Mr Waterman. We have yet to see the full collective impact of these decisions. It will be left to future historians to judge but I’m fairly certain at some point Citizens United will take its place beside the Dredd Scott decision and like now, historians will be conclude… “What were they thinking?”
Joan Cramer says
Well said! But so happily surprised that they upheld the health care bill today. As brazenly ideological as this court has been, I guess it doesn’t want to be seen, historically, as utterly beholden to and supportive of the oligarchs.
Stephan Sonn says
Joan,
There is one rational Republican among the inquisitional majority on that court.
The history he made today might be seen as a political victory by some liberals
but is actually a vindication for tradition of democracy and the integrity of institutionalized law.
This speaks well to the courage and character of Chief Justice John Roberts and we need more heroics
by whatever brand name. He may not be my style of hero and I expect he will disappoint me
with other decisions but he is a hero and has contributed greatly to history and the future of this country.
Gren Whitman says
Mr. Waterman has generously provided us with his opinionated list of “The All-Time-Worst Supreme Court Cases” against which to compare “Citizens United” and, having done so, I can only say that yes, “Citizens United” really should be ranked as one of the worst.
Ever!
All-time!!
BTW and tut-tut, Mr. W., it’s “Dred,” not “Dredd.”
You seem to be confusing that historic civil-rights icon with Sylvester Stallone’s “Judge Dredd,” a character even more fictional than his “Rocky.”
Kevin Waterman says
Thanks for the heads up on the spelling error, I’ll try and fix that if the posting system lets me.
Clark says
It is becoming abundantly clear that the large sums of money being spent anonymously by wealthy individuals and corporations to influence the political process is corrupting to our political system. Citizens United opened the floodgates for that spending. I don’t think that it is an exaggeration to say that it is one of the worst decisions the Supreme Court has made. It might even fit in your top ten list. Mayby even worse than Bush v Gore.
joe diamond says
Political speech used to get me until I figured it out,
Normal communication sends a message from a sender to a recipient because the sender wants to share some knowledge.
Political communication differs in that the sender wants to influence or change the understanding of a recipient. The intended audience may not be prone to agree with the political speaker. To do this it is not necessary to use facts or truth to influence the audience. Politicians can use political speech without reference to anything as long as it makes them seem knowledgable and their political opponent look less so.
So do not get sucked into commenting on the statements of elected officials or their unelected opposition. It is just noise. They know what they are doing.
Rhetoric is a skill and they have it. They use it. But it should not be confused with communication.
Joe
Kevin Waterman says
Wow, that is certainly surprising. I truly never thought that anyone would actually believe today that the likes of racial segregation, mandated sterilization, and mass imprisonment without trial would be seen as on par with or even less offensive than allowing corporations (and unions) to spend money on independent political advocacy.
However, I’m curious as concerns everyone bent out of shape over Citizens United – what evidence do you see that the indpendent political spending legalized by Citizens United has had much of any impact? Money is never enough to win elections, otherwise California would have had a Gov. Whitman rather than Gov. Brown.
And furthermore, I’d actually make the case that if you’re worried about corporate money corrupting politics then you ought to see Citizens United as a good thing. Think about it, if a corporation is determined to buy certain favors, status, whatever do you honestly think that it wouldn’t be able to find a way to do it. By allowing independent political spending, that money now moves in much more obvious channels that everyone can see and be aware of rather than moving in backroom channels the public has little chance to know about.
joe diamond says
Kevin,
All those decisions were reversed…eventually. They reflect political thought of their time…Dredd Scott….14th amendment…it goes like that.
(Found Dred & Dredd, by the way…made up name)
But the issue, aside from the comparisons on both sides, is the role of corporations and their rights. They are legal entities that allow individuals to invest without loss beyond the value of investment. What we are looking at is the difference between the right of a corporate manager to advertise his product with investor dollars (protected free speech) and the same manager buying…or even composing a political ad. (illegal payment to influence an election).
Should the first example be allowed? Sure, it makes money for the investors and is a commercial activity.
The second example……..maybe not. Some of the corporate investors may have a different political preference so they may not want their investment used to advance the cause of someone they would not support in an election. Even though citizens can unite to form political parties is that the same thing as a few rich citizens forming a corporation to amplify their position beyond one vote per citizen? Is this the same thing as buying an election result?
Joe
Lainey Harrison says
Kevin,
You write: “By allowing independent political spending, that money now moves in more obvious channels” Absolutely wrong.
Nowhere does any of that money have to be reported, disclosed, inspected. FEC from campaigns are available on the web, have individual limits, cannot accept any corporate monies, require employer and occupation and a sworn statement if over 200.00 in aggregate in an election cycle, and then there are more rules. In fact, citizens united made a complete mockery of the financial disclosure that politicians must abide by. When I consider what my workload was in doing FEC campaign reporting, I am absolutely disgusted by the citizen united decision.
Lainey Harrison says
Correction to my above comment: “FEC from campaigns are available on the web” should be “FEC financial reports from campaigns…”
Kevin Waterman says
Lainey,
I wasn’t referring to FEC reports, which are pretty open, even if they’re a pain to read through (scanned documents and all).
What I was referring to is the more informal means of influencing legislation and policy. The hiring of former legislators and legislative staff as lobbyists, providing expensive dinners and the like to policymakers as a means of getting access, etc. The general public never sees most of this.
In contrast, independent expenditures are a lot more obvious. It may not be exactly clear who is doing the spending (although that’s more an issue of timing, Super PACs do have to make either quarterly or monthly disclosures of their donors so it generally becomes clear at some point depending on where we are in the disclosure cycle), but thus far Super PAC spending has been anything but subtle. It is immensely clear from ads they run what their agenda is, who they are against, and who they are for.
I think a better solution would simply be to allow unlimited campaign donations with full disclosure of donors, but given what came before I think the post-Citizens United world is a better one. Reasonable people may disagree, but if people desiring legislative favors feel this is a cheaper alternative to keeping highly paid lobbyists on retainer and using them to more discretely influence policymakers than I’d say it’s a net win for society.
Jeff St John says
I respect the case you made in your comment Mr. Waterman, but in my opinion it glosses over some of the bigger issues. If a relatively small number of people can finance an entire campaign and clearly outspend the opponent; and this can be done on a consistent basis, is actual “Democracy” at any risk? Even if we assume that everyone involved will have nothing but the best of intentions and no hanky-panky occurs because of that money, who does that system really serve? Does the candidate need to Govern more for the benefit of “the People” or for that group of donors that will finance the next election?
Sure, you still need actual people to go out and make their one vote, but if the money behind that message is unlimited, I would argue that it can be very convincing. I think most would agree that all political parties “message” and that what is said is not always 100% truthful (bending the truth to fit political aspirations.) To that you add in popular cable news networks that are happy to play along with their affiliated parties, I would further argue that you can shape opinion without always sticking to “facts.”
This is my concern and I believe we have been starting to see this play out. The SCOTUS striking down earlier this week the ability of even the states to make their own decisions in this matter is even more alarming to me. That said, this is the first Presidential election playing out under these new rules so we are still kind of in a wait-and-see position. Personally, I think to have truly pure democracy (or at least as close as possible) that money shouldn’t be involved in the process at all. Deciding who will run the country should be based on a person’s word… what comes from their head and heart… and not what they have to say to be able to afford to run.
I have no doubt that you, Mr. Waterman, want the best for this country as do I. Let us hope together that whatever path we head down from here, we get to that place.
Stephan Sonn says
If grandma has big teeth she certainly is a wolf.
It is fairy tale to believe anything otherwise.
It is not any more a battle of Rand and Marx.
It is brazen billionaire bulling to take down democracy.
Keith Thompson says
Would the same arguments apply to George Soros?
Steve Payne says
Yes!
It’s all bad.
Stephan Sonn says
So Steve
Who is your favorite Billionaire?
Steve Payne says
How about Peter Lewis.
If I had the keys to the bus I’d give them to Bill Gates and Warren Buffet.
Stephan Sonn says
And Kevin what is worse? An intellectual lobotomy forced on the future of this country
or a wounds that heals by time and the common will to right the wrongs.
These CITIZENS you are defending are not heroic nor are they well intended,
and the no-speak and abstract double talk you espouse only advances their goals.
Republicans practiced more time honored beliefs in the past
I see you scoring big points with these new guys
as a wannabe stealth spokesman/spinner.
Joseph B Aquilla MD says
No limit on the commerce clause…only dicta… Read op Ed and every comment…impressed with the content…there is hope fo r our country!
Kevin Waterman says
From my understanding there is an interesting debate going over whether the Commerce Clause limits are only dicta or if they are binding since Roberts in his opinion and the 4 in the dissent in theirs both made essentially the same argument with regards to it. https://www.volokh.com/2012/07/02/what-did-the-court-hold-about-the-commerce-clause-and-medicaid/
Stephan Sonn says
I am bedazzled by the bevy of nuances interwoven in most of Kevin’s offerings here.
Big time spinning to blunt the edge of the opposition, that has not worked,
but did produce some really great replies.
Let me say this without saying directly that I did not vote for Andy Harris. Certainly Andy votes his mind set very well in all manners indirectly germane to what some folks call personal integrity and human dignity. He is a fine example of Andy Harris; while he is never too hot you can be sure that he is careful not to be too cold so he must be just right. His staff just loves him. Who else would know better than them? With loyal folks like him in place lobbyists will be obsolete and won’t that just dandy for the Americans who really matter like Andy. Well maybe lobbyists can just hang around and throw those great parties that we have all come to expect, so long as you are like me, ya know
phil kratzer says
Citizens United gives corp.the right to be treated like a human.Therefore their first amendment free speech translates to allowing “them” to put unlimited money into campaign funds and not reveal the donors names.As if our elections aren’t controlled by big money enough.That money is sent to the spin doctors who’s business is to manipulate public sentiment. “Damn the facts,I saw it on the tv so it must be true.” Or now that 21st. century version, “I read it on the internet”. What a dangerous situation for what’s left of our democracy. Soon enough we’ll resemble, no, BE a third world country.I’m not going to score this decision. It’s a more important than reducing this issue to that level of BS.
Stephan Sonn says
Phil.
Your take on Billions United Couldn’t be more precise and to the point.
The editor deserves a lot of credit for permitting Mr Waterman to graze in this pasture and present his wares EVEN as a gesture of returning to the democratic forum and civilized behavior we all miss s dearly. Kevin was spotted starting from his first entry here as Tea Party Light, months ago when he presented McGoven-like purist arguments in a shallow divisive ploy.
This is the face of what wants to pass as a new moderate Republican It focuses on glazed over circular arguments that pull to the hard right. The other ploy is damning with faint praise. There mus be more double talk forays in the scripts but this nice guy routine is morbidly fascinating and a precursor of politics in the New Age of Titans… PRAISE KOCH
Kevin Waterman says
Phil,
Where do you see any evidence that there is not a requirement to disclose donor names?
All the decision did was allow corporations, unions, and other assemblies of persons to make unlimited independent expenditures. Disclosure requirements on political advertisements are still in effect (so should a corporation run an ad itself it has to reveal it paid for it) and Super PACs are required to disclose their donors to the FEC on an either quarterly or monthly basis, whichever they prefer.
The only way I can conceivably see a way to hide the names of donors is for people to give money to a 501(c)3, which is not required to divulge donors and then for the 501(c)3 to in turn give that money to a Super PAC so that the 501(c)3 would appear as the donor. But given the latitude 501(c)3’s have and had well before the Citizens United decision, this seems a fairly ineffective means of engaging in political advocacy.
Stephan Sonn says
For the benefit of those of us
us that got lost in your last comment.
Where in this CITIZENS United decision
does it EXPRESSLY state that
here will be donor disclosure?
What paragraph of what section,
if you please
Lainey Harrison says
For 20 days before an election SUPERPACS do NOT have to disclose donors – not a single name or dollar amount
For 15 days before an election, a candidate campaign must report within 48 hours any single donation of 1,000.00 or more with the donors name address employer and occupation.
That is not merely a timing issue. That is allowing the superpacs a huge window of “blackout” that the candidates do not have.
You still think this is a good thing?
Now as far as a 501C3 getting in the game, no, sorry, cant happen. 501C3s are expressly forbidden from political games. If they want to have a political arm, they may, but the rules are then the same as, well, now superpacs!
Stephan Sonn says
Lainey
There you go with the facts again.
Thanks… most of us are bound by them.
Kevin Waterman says
Lainey,
I don’t really have any disagreement with you, I am on board with stricter disclosure requirements – as I said earlier my preferred approach to the question of campaign financing is to allow unlimited donations with complete disclosure rather than the rat’s nest of rules we have now.
With regards to 501(c)3’s my comment was based on some reading I had done on disclosure requirements. Now, I will openly admit that I am not a tax law expert, but it is my understanding, both from a cursory review of the subject and experience working with several 501(c)3 groups in the past that 501(c)3s are legally allowed to lobby and under that purview fall a variety of activities including educating people on issues, making people aware of politicians voting records, explaining particular legislative items, encouraging people to contact their legislators and vote a certain way or the other (both on specific legislation and general issues), just to name a few allowable actions.
Near as I can tell, the firm line they can’t cross is explicitly endorsing candidates or act in a way that is expressly partisan. As I said, I’m not an expert, but from what I have read, a 501(c)3 could plausibly donate money to a Super PAC as a means of furthering its lobbying activities without it necessarily being in conflict with the rules governing 501(c)3 behaviour.
Lainey Harrison says
I’ll tell you this Stephen, after serving as a Treasurer for Congressional campaigns and being responsible to file the financial reports, if you want to know a candidate, know his values, know the kinds of folks he hangs with, read his FEC reports. The money tells no lies – it’s just the facts. Fiscal conservatives and spendthrift fools are easily identified and more true than any party affiliation. Andy gets most of his money from out of state anesthesiologists and PACs. He files tons of amendments and is always leaving personal debt on the table to be able to backtrack on the fundraising. He pays his people as independent contractors, not employees, thereby skating on the employer taxes and heaving that burden back to the folks who work for him as if he doesnt “control” his campaign manager! He is a “do as I say not as I do” kinda guy.
Stephan Sonn says
I feel actual mental pain the more the facts
come forth about Andy Harris.
I spoofed him in earlier comments
but now I cannot utter even a sarcastic snicker
it is that monstrous,
Stephan Sonn says
Lainey
I spoofed Andy Harris earlier but in light of more facts supplied
is horrifying. I can’t even produce a sarcastic snicker.
Help me with the semantics here. If a group
designs and pay for a commercial against Obama
how can it be said that they are not helping Romney.
Is it legalese that compartmentalizes the logical conclusion?
Political FRACKING as far as I am concerned.
Please advise
Kevin Waterman says
Stephen,
Here is the majority opinion from Citizens United, https://www.law.cornell.edu/supct/html/08-205.ZS.html. If you look at Item number 3 you will see they explicitly uphold disclaimer and disclosure requirements,
3. BCRA §§201 and 311 are valid as applied to the ads for Hillary and to the movie itself. Pp. 50–57.
(a) Disclaimer and disclosure requirements may burden the ability to speak, but they “impose no ceiling on campaign-related activities,” Buckley , 424 U. S., at 64, or “ ‘ “prevent anyone from speaking,” ’ ” McConnell , supra , at 201. The Buckley Court explained that disclosure can be justified by a governmental interest in providing “the electorate with information” about election-related spending sources. The McConnell Court applied this interest in rejecting facial challenges to §§201 and 311. 540 U. S., at 196. However, the Court acknowledged that as-applied challenges would be available if a group could show a “ ‘reasonable probability’ ” that disclosing its contributors’ names would “ ‘subject them to threats, harassment, or reprisals from either Government officials or private parties.’ ” Id., at 198. Pp. 50–52.
(b) The disclaimer and disclosure requirements are valid as applied to Citizens United’s ads. They fall within BCRA’s “electioneering communication” definition: They referred to then-Senator Clinton by name shortly before a primary and contained pejorative references to her candidacy. Section 311 disclaimers provide information to the electorate, McConnell, supra, at 196, and “insure that the voters are fully informed” about who is speaking, Buckley , supra , at 76. At the very least, they avoid confusion by making clear that the ads are not funded by a candidate or political party. Citizens United’s arguments that §311 is underinclusive because it requires disclaimers for broadcast advertisements but not for print or Internet advertising and that §311 decreases the quantity and effectiveness of the group’s speech were rejected in McConnell. This Court also rejects their contention that §201’s disclosure requirements must be confined to speech that is the functional equivalent of express advocacy under WRTL’ s test for restrictions on independent expenditures, 551 U. S., at 469–476 (opinion of R oberts , C.J.). Disclosure is the less-restrictive alternative to more comprehensive speech regulations. Such requirements have been upheld in Buckley and McConnell. Citizens United’s argument that no informational interest justifies applying §201 to its ads is similar to the argument this Court rejected with regard to disclaimers. Citizens United finally claims that disclosure requirements can chill donations by exposing donors to retaliation, but offers no evidence that its members face the type of threats, harassment, or reprisals that might make §201 unconstitutional as applied. Pp. 52–55.
(c) For these same reasons, this Court affirms the application of the §§201 and 311 disclaimer and disclosure requirements to Hillary . Pp. 55–56.
Kevin Waterman says
Also, the creation of Super PACs technically occurred via the case of SpeechNow.org vs FEC, a ruling by the U.S. Court of Appeals for the District of Columbia, which was determined in light of the Citizens United ruling.
In that holding rules were set governing what have come to be known as Super PACs, namely that an organization formed to accept only independent expenditures must register as a PAC and be subject to the same legal regime (ie disclosure requirements) but they can accept unlimited amounts of individual donations.
Steve Payne says
501 c4s are the ones that dont have to disclose since they have a social agenda. Their message must be a social issue and not a Campaign Ad. Crossroads GPS is a c4 and the following is (wink) NOT a campaign ad:
https://www.youtube.com/watch?v=FKJnwq1ySlY&feature=plcp
Stephan Sonn says
Social agenda, hmm, isn’t that convenient.
Lainey Harrison says
Kevin,
Going back to the 501C3 discussion, any 501C3 who does the things you are listing, “that 501(c)3s are legally allowed to lobby and under that purview fall a variety of activities including educating people on issues, making people aware of politicians voting records, explaining particular legislative items, encouraging people to contact their legislators and vote a certain way or the other (both on specific legislation and general issues), just to name a few allowable actions.
Near as I can tell, the firm line they can’t cross is explicitly endorsing candidates or act in a way that is expressly partisan. As I said, I’m not an expert, but from what I have read, a 501(c)3 could plausibly donate money to a Super PAC as a means of furthering its lobbying activities without it necessarily being in conflict with the rules governing 501(c)3 behaviour.”
Nope, sorry, cant happen. If a 501C3 is participating in the process as you suggest, they risk losing their nonprofit status and could lose thier tax exemption real quick. Here is a quick primer link on the subject:
https://www.nolo.com/legal-encyclopedia/limits-political-campaigning-501c3-nonprofits-29982.html
Many 501C3s who wish to dive into the political waters set up similar 501C2 organizations. A prime example of this would be the Roper Foundation (501C3) and the Roper Committee (501C2). The Committee did all the political work, lobbying, etc, while the Foundation assisted crime victims. The Committee was responsible for writing the crime victims rights in this state, the foundation helped those same victims put thier lives back together again. Donations to the foundation were tax deductible, donations to the Committee were not. The monies could not be co-mingled. Most 501c3s know their boundaries and steer clear of them because they dont want to lose thier tax exempt status. And it would be so easy for the opposing party to turn them over to the IRS.
Limiting donations to politicians is the best way to go. Beholden to whom then? If all folks had to be disclosed, and no one was allowed to contribute more than, lets say $5,000.00- the limit for a congressional campaign in an election cycle, who can be bought for that amount? Unlimited donations, as you suggest, is the quickest way to a candidate’s soul, in my opinion. Corporations should not be allowed to play at all – afterall that little piece of paper our forefathers wrote does say WE THE PEOPLE, not we the entities. State of Maryland needs to tighten up its gaping loopholes allowing LLCs to donate with no attribution to a living breathing person. Donors should not be allowed to hide behind anything, if you feel strongly enough about a candidate to give them money and support, then do so openly.
Kevin Waterman says
Lainey,
Reading over your link, I don’t see anything that runs counter to my understanding.
It does state that 501(c)3s are allowed to engage in legislative and issue-related advocacy and they can engage in non-partisan activities, they are just explicitly prohibited from engaging in political campaigns, all of which seems to mesh with the list of things I noted 501(c)3s are allowed to do that would generally be seen as political.
The only one that is iffy is 501(c)3s giving money to Super PACs. I feel positive I read about that being presented as a possible strategy, but I can’t find it now, so I’ll accept I was mistaken on that one for the time being (but keep looking to see if I can find it).
As for the latter point, I think we’ll have to agree to disagree. I’m highly skeptical that politicians can be so easily bought and sold on the basis of campaign contributions, particularly if there is full disclosure (If anything, I rather suspect the true way to track who is influencing politicians is to see who is hiring their ex-staffers, at least for incumbents. While I have little respect for most politicians, I doubt most are as venal as to be so obviously bought; what influences them are thoughts and suggestions in policy areas they have likely spent little time thinking about coming from people they trust outsourcing the thinking on such things to).
Lainey Harrison says
What good could come from unlimited donations? I see lots of benefits to limits – low limits. You want to know if a candidate has a fighting chance? Look at the reports. Can they bring in lots of donations or do they rely on a few wealthy sources? Are they single issue candidates or are they multi-faceted, look at the employers/occupation of the donors? Can they wrangle dollars from the folks they would represent or do they rely on outsiders for their war chest?
I dont want some rich fat cat funding a candidate. I want a candidate that appeals to many, not just one. I want a candidate who is vested in my community, not some community across the country (or the bay as the case may be)
Kevin Waterman says
First and foremost, allowing unlimited donations weakens incumbent advantage. As I’m sure you well know, incumbents have a number of campaigning advantages over challengers such as, but certainly not limited to, franking privileges enabling incumbents to contact voters at no charge to themselves, increased media access, and significantly higher name recognition.
Generally speaking it takes a sizable amount of funding to balance out those advantages, and while a fundraising cap will hamper incumbents somewhat, it places a disproportionately greater burden on challengers as those caps do nothing to inhibit the non-monetary advantages of incumbency.
That is likely the single biggest benefit, although I can envision at least a couple other benefits:
-As I’ve noted above, allowing unlimited donations will likely reduce the need many feel to employ lobbyists and engage in other less obvious influencing efforts, thus moving attempted political influencing into more open and visible spheres of activity.
-Allowing unlimited donations should reduce the return on investment in PACs, allowing for more efficient use of political advocacy dollars in many cases (no need to spend money on staff for a PAC if it can be given directly to political candidates). Money not spent on politics is money that can then be spent more productively in other ways.
Beyond that, perhaps our disagreement is partially one of priorities. I’m not particularly interested in having legislators that represent their communities, I care about having legislators that are philosophically trustworthy and can be trusted to vote those principles rather than being a slave to the will of their constituents.
Lainey Harrison says
“Philosophically trustworthy?” Like Andy lying about his military service, this makes him trustworthy?
“And can be trusted to vote those principles rather than being a slave to the will of their constituents?” A slave to the will of the constituents! If not a representative of the people, then they are only in it for themselves, be it glory, power, whatever. This is why we call the “Representatives”, they represent the PEOPLE of the district.
Unlimited donations could also work to the advantage of the incumbent, just like you say. In fact, an incumbent with a couple of real wealthy friends could hogtie an entire district of hundreds of thousands constituents, for the benefit of a few. And to use your own words against you, money not spent on a campaign could be better used elsewhere which makes my argument for very small limits even more valid. Stop the madness.
Kevin Waterman says
There is no reason that a politician need be beholden to their own private interests if they are not representing the will of the people. The approach I outlined has a lengthy history and while not particularly popular in America is a valid way of understanding the role of the legislator, https://en.wikipedia.org/wiki/Trustee_model_of_representation
Unlimited donations could work to the advantage of an incumbent, but as a rule strict limits more commonly favor incumbents over challengers. As noted before, incumbents have a wide range of non-monetary advantages pre-built into the system. Therefore, on the margin every additional dollar a challenger can get will have a greater impact than every additional dollar an incumbent can get. And to repeat another point I made earlier (at least I think I did) more money doesn’t guarantee election wins. Case in point, the Gov. Meg Whitman California doesn’t have.
Further, even if money did have the seemingly huge impact you suspect it does, strict limits are still problematic – they tilt the field towards people capable of self-financing campaigns. As you well know there aren’t really any limits on self-funding of campaigns, meaning people with untold millions sitting in the bank could run rough-shod over everyone else.
Finally, two points in response to your last bit:
1) It’s one thing to say that increased economic efficiency is a benefit of giving people more discretion in how to spend their money. Morally and economically speaking, it’s another thing entirely to cite it as a benefit when telling people how they are and are not allowed to spend their money.
2) It relies on the faulty assumption that entities with large amounts of money to influence politics (those impacted by contribution limits) would simply donate to the limit and do nothing else. Reality has already shown us that isn’t the case, money gets spent on PACs and non-profits to push their political agenda. Removing contribution limits reduces the return on these alternative methods and shifting from them to direct donations allows the opportunity to lessen deadweight losses these organizations inherently have.
Stephan Sonn says
I just read this op ed again and came to the point where the writer says Ben Cardin is deranged.
I will not comment on this article again. it is really a mean-spirited piece of work.
Kevin Waterman says
Stephan,
If you re-read that full sentence you will see that I didn’t say he was deranged, I said he either has “a deranged moral compass” or he doesn’t really believe that Citizens United is one of the worst decisions ever.
Perhaps you disagree, but I think that is a radically different sentence than the way you’ve described it. And I stand by it, perhaps others think differently, but I can’t help but think someone’s moral priorities are in fact deranged if they think Citizens United is a greater moral atrocity than any of the case I listed. However, as I repeatedly insist throughout the article, I don’t think Sen. Cardin is such a person.
Stephan Sonn says
Deranged is a poor choice of words. Nothing you say will sanitize it.
On the other hand as part and parcel to your beliefs mantra
you would naturally call Sen Cardin’s moral philosophy deranged.
You should read Lord Lord of the Flies or see Children of A Lessor God
if only to find your classic kindred spirits.
Stephan Sonn says
From the NY Times:
Two years after the Supreme Court’s Citizens United decision opened the door for corporate spending on elections, relatively little money has flowed from company treasuries into “super PACs,” which can accept unlimited contributions but must also disclose donors. Instead, there is growing evidence that large corporations are trying to influence campaigns by donating money to tax-exempt organizations that can spend millions of dollars without being subject to the disclosure requirements that apply to candidates, parties and PACs.
Stephan Sonn says
Lainey
I am watching your lesson from Kevin which is
at complete odds with the norm of political human nature.
I cannot say here what needs to be said
a bout the re-stimulation of this dialogue
by the guest blog master
except that I am not a rude guest.
Needless to say the News York times (above)
provides a better take that I could ever produce.
Kevin is defending his own oxymoron proposition
in the style and manner of intellectual syntax.
Somebody get the hook into this burlesque, please