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By Mimi Murray Digby Marziani – 10/03/12
Crossposted at the Hill's Congress blog.
When President Barack Obama and former Governor Mitt Romney face off tonight in Denver, they will not agree on much. Instead, each candidate will offer profoundly different policy prescriptions to address America’s domestic woes.
But lurking underneath is an unspoken, shared assumption: that, as our next president, they could transform their good ideas into federal law. This assumption overlooks what is arguably our nation’s biggest threat to domestic policy, be it conservative or progressive — the filibuster.
Once used only as a weapon of last resort, the filibuster is now a regular feature of Senate procedure — operating as a weapon of mass obstruction. By permitting a minority of senators to veto all progress, the filibuster has crippled our Senate and — by necessary extension — our entire legislative branch of government. As the New York Times recently reported, the current Congress “is set to enter the Congressional record books as the least productive body in a generation.”
Diminished productivity is only part of it — the filibuster also blunts accountability. Obstructionist tactics regularly keep legislation and nominees from reaching the Senate floor altogether, preventing public debate as well as any up-or-down vote. Senators thus avoid taking a public stand on policy or engaging in genuine decision-making. Constituents are left to guess how these elected officials would have voted on the underlying policy matter, rather than being able to weigh the choices their representatives actually made.
No wonder less than 14 percent of Americans approve of how Congress is operating.
Our democracy was not designed to function with just two branches. Consider just a couple of ways the filibuster directly affects the presidency. First, when Congress stalemates, the president must either accept inaction or seek policy change through administrative action. In some situations (approving payment of America’s debt, for instance), the former is not an option. And, the latter could result in a troubling expansion of executive power. Suffice to say, neither situation is ideal.
Second, when the Senate refuses to approve or reject executive nominees, it handicaps the president, leaving him unable to fulfill his constitutional duty to carry out existing laws. For instance, last year Senate Republicans pledged to filibuster to death any nominee for Director of the Consumer Financial Protection Bureau — a tactic geared to eliminate the new Bureau, despite the duly-passed law establishing that agency’s existence. After months of delay, President Obama resorted to a questionable “recess” appointment when the Senate was not technically in recess.
Clearly, Obama understands first-hand how the filibuster can undermine effective governance. Romney should recognize this as well. After all, while the Republicans are the ones stonewalling today, Senate Democrats would surely continue the obstructionist arms-race if they lose control of the Senate, just as they did during George W. Bush’s presidency. Moreover, as a man who claims the efficiencies of corporate-style management as a model for his own leadership, the arcane and archaic Senate Rules should appall Romney.
Obama and Romney should proclaim their unified support for reforming the Senate’s Rules at the start of the new Congress in January. In doing so, they can look to another odd couple — former Governor Tommy Thompson, now the Republican senatorial candidate in Wisconsin, and Representative Tammy Baldwin, the Democratic candidate. During their debate last week, Thompson argued that “procedures in the United States Senate should be modernized so that . . . 50 percent of the people in the Senate can make policy, and move this country forward.” Baldwin agreed that it was high time for rules reform.
Without the force of law, a good idea is . . . just another good idea. As Thompson and Baldwin recognize, every candidate has an interest in allowing actual governance to occur — that is what they are elected to do. Filibuster reform should be at the top of both parties’ agendas.
Tags: Democracy, Filibuster
By Chris Famighetti – 10/02/12
Michigan’s Secretary of State is joining a growing trend among state elections officials: Declare that thousands of non-citizens are registered to vote and then use those allegations to justify efforts that confuse, intimidate, and in some cases purge eligible voters on the eve of the election. But similar claims about ineligible voters in Florida and Colorado were debunked within a matter of weeks after being publicly disclosed. So why is Sec. Ruth Johnson jumping on the bandwagon, saying there are 4,000 non-citizens registered to vote? Is there something different about Michigan? Almost certainly not.
To quickly recap: In Florida it was initially asserted that as many as 180,000 potential non-citizens were registered to vote. Claims of registered non-citizens in Colorado were smaller, but still in the thousands — over 11,000. But as time went by, these lists decreased in size. In Florida, 180,000 morphed into 2,600 and later into 198, while in the Centennial state 11,000 shrunk to 3,900 and then to 141. The final numbers represent thousandths of a percent of all registered voters in each state.
But Michigan is a different state. Perhaps Johnson has learned from these fiascos and developed a more reliable and efficient system for identifying the extremely small percentage of non-citizens who may be on the rolls? Unfortunately, no.
The methodology Johnson used to obtain her numbers appears — at first blush — distinctly similar to that employed in Florida and Colorado. The Michigan Department of State, according to news reports, gleaned a list of 963 potential registered non-citizens by comparing immigration data captured from state drivers’ license and ID card applications to a list of registered voters. This is essentially the same approach that produced wildly inaccurate lists, shown to include hundreds of eligible citizens, in Florida and Colorado.
But Johnson went one step further, into arguably unknown territory, to arrive at the flimsy allegation that 4,000 non-citizens are registered to vote in Michigan. According to Johnson’s office, using census estimates that 305,000 noncitizens live in Michigan, it extrapolated that 5,064 of those noncitizens could be registered to vote, and “then lowered its estimate to 4,000 to account for children.” Unsurprisingly, the theory underlying these “extrapolated” and “estimated” numbers remains unexplained. To put it plainly, the use of flawed list-matching compounded by baseless estimation methods bodes poorly for the accuracy of the claims.
Johnson’s timing is also in question. She issued a press release with her “finding” of thousands of registered noncitizens just a day after being sued for placing a citizen checkbox on voter ballots. The case charges that Johnson lacks authority to include the checkbox because the governor vetoed the legislation after determining the checkbox was unnecessary and would only create confusion at the polls. Johnson, nonetheless, included it during the primary election and will do so again in November. She insists her estimate of thousands of improperly registered non-citizens proves the necessity of this voting deterrence measure.
Johnson has stated, “There are those who will try to minimize the importance of the numbers, but 4,000 represents real people, potentially voting in real elections, having a real, negative impact on our democracy.”
This statement raises an important question: If the numbers don’t add up, what is the “real” purpose of these “non-citizen” lists? Unfortunately, Johnson’s manipulation of questionable data to support her agenda confirms that, even as we move ever closer to Election Day, the partisan pre-election games have not ended. However, the successful public and legal pushback in Colorado and Florida demonstrate that voters won’t sit by quietly while political operatives manufacture justifications to violate the rules. If Johnson is truly concerned about voters and protecting democracy, she needs to stop playing games, and start ensuring free, fair and accessible elections.
Tags: Democracy, Voting Rights & Elections, Purges
By Alicia Bannon – 09/27/12
It shouldn’t be controversial that courts are supposed to interpret and apply the law — after all, that’s the essence of what courts do. But Colorado is trying to turn this principle on its head, arguing in a recent lawsuit that it is disrespectful to the state for the courts to hear a claim that the state violated its duties under the Colorado Constitution. It’s a dangerous argument that imperils the rights of the politically powerless and strikes at the very integrity of our judicial system, and it’s one that the Colorado Supreme Court should firmly reject.
The lawsuit, Lobato v. State, was brought by students, parents, and school districts in Colorado, who argue that Colorado’s educational funding scheme violates the state Constitution. Like most state constitutions, Colorado’s constitution imposes a duty on the state to provide adequate educational funding for its public schools. With nearly half of all students falling below proficiency on state exams and with a funding scheme that the trial court deemed “irrational,” the trial court recently found that the state wasn’t meeting its constitutional duties, and ordered it to reform its funding system.
The State’s response was to attack the court’s capacity to hear this case at all – claiming that educational funding decisions are a “political question” and that the judicial branch has no power to even decide if the plaintiffs’ claims have merit.
As the Brennan Center and a group of constitutional law and civil procedure scholars argued in an amicus brief filed on Wednesday, this is a profoundly misguided argument that fundamentally misconstrues the role of the judicial branch in state constitutional systems, like Colorado’s, that require the state to adequately fund services such as education.
By creating an “affirmative right” to an adequate education system, the people of Colorado made the decision to limit the Executive and Legislature’s discretion in how they allocate state funds. As a result, it’s the courts’ job to interpret and apply this right to the education funding system created by the state, and to hold the government accountable when it fails to meet its duties.
The state’s argument is especially ironic because the individuals protected by the Colorado Constitution’s Education Clause – children, including vulnerable populations such as low-income and special needs students and English language learners – lack the ability to protect themselves in the political sphere. And as Colorado’s egregious record of inadequate educational funding demonstrates, if the courts don’t step in to protect the rights of Colorado’s children, no one else will.
Tags: Fair Courts, Independence & Accountability
By Sundeep Iyer – 09/26/12
This month, the Los Angeles City Council approved several important reforms to the city's public financing system. These reforms will help strengthen the connection between Los Angeles residents and their elected officials.
Beginning in 2013, participating candidates will receive four dollars in matching funds for every dollar they raise from qualified donors in the general election, and two dollars for every dollar in the primary. Starting in 2015, the program will only match donations from Los Angeles city residents, and candidates for City Council will need to raise 200 donations of five dollars or more to qualify for public financing.
The reforms in Los Angeles are modeled in part off of a similar system in New York City. Earlier this year, a joint Brennan Center/Campaign Finance Institute report found that under New York City's multiple-match public financing system, almost everyone in the city — from the richest of neighborhoods to the poorest — lived within a city block or so of someone who contributed in city council elections. That was not even close to being true in state-level contests, where no such matching funds program existed.
By giving candidates an incentive to reach out to a broader and more diverse array of constituents to fund their campaigns, New York City's public financing system fundamentally altered the relationship between politicians and their constituents.
The Brennan Center was fortunate to have the opportunity to discuss the benefits of New York City's system with the Los Angeles Ethics Commission this June, and we are pleased that the City Council has adopted the Ethics Commission's recommendations. Los Angeles has taken a crucial step towards bringing ordinary citizens back to the heart of the city's democracy.
Tags: Democracy, Campaign Finance Reform, Public Financing
By Rachel Levinson-Waldman – 09/26/12
Nine years after he left his post as Director of the Office of Legal Counsel (OLC) in the George W. Bush administration, Jay Bybee’s legal opinions still have the capacity to surprise. It was Bybee, along with Deputy Assistant Attorney General John Yoo, who authored the notorious “torture memos,” which created the framework permitting intelligence agencies to use interrogation techniques – such as waterboarding – which are widely considered torture.
Soon after the 2001 PATRIOT Act was passed, Bybee was asked for his opinion about some of the Act’s information-sharing provisions. Specifically, the White House asked how the Act changed the extent to which grand jury information could be shared with the president and other federal officials. Bybee, now a judge on the U.S. Court of Appeals for the Ninth Circuit, crafted a previously undisclosed interpretation of the law that is breathtaking in its sweep.
That July 2002 memo was recently obtained by the Brennan Center through a FOIA request.
The notion that grand jury testimony should be secret dates back to at least the seventeenth century. The rules governing disclosure of grand jury proceedings are set by the Federal Rules of Criminal Procedure; prior to the PATRIOT Act, those rules declared that grand jury information could be shared only under certain circumstances, such as when the material was necessary to assist a prosecutor. However, disclosures had to be reported to a judge, and everyone receiving the information had to be told of its confidentiality.
The PATRIOT Act changed these rules significantly. Government lawyers could now share “any grand-jury matter involving foreign intelligence, counterintelligence …, or foreign intelligence information” with nearly any federal official, including those working in law enforcement, intelligence, immigration, national defense, or national security. Even records about a grand jury’s deliberations or a particular grand juror’s vote were apparently fair game. And the standard for sharing the information was not whether the material was “necessary” to the official’s duties; instead, the information need only “assist” the official in some way.
The PATRIOT Act did set some limits: under the new intelligence-sharing provision, a judge had to be told of the disclosures, and recipients of the information could use it only for their official duties. But the OLC would read the nondescript word “under” to exempt major categories of information-sharing from the already relaxed reporting and accountability requirements of the Act.
A series of OLC memos over the decade before Bybee’s 2002 memo had concluded that the president’s constitutional authority created implicit exceptions to the disclosure limitations and the secrecy requirements of the existing grand jury rules. Bybee’s memo doubled down on this extension of executive power, however, offering an almost impossibly narrow reading of the law’s remaining oversight and accountability mechanisms.
First, although the rule expressly requires that disclosures of grand jury information be reported to the court, Bybee advised that disclosures to the president need not be reported lest they “infringe on the presumptively confidential nature of presidential communications.” (OLC had previously decided that similar disclosures to the president would be reportable in some circumstances but not in others.) In addition, disclosures to the president’s “close advisors” – including the president’s chief of staff, the vice president, and counsel to the president – could be kept secret as well. While only “information that is actually necessary for the President to discharge his constitutional duties” could be secretly disclosed to the president or his advisors, that requirement is highly unlikely to be tested in practice.
Permitting the content of deliberations or a grand juror’s vote to be shared secretly with the vice president is surprising enough. The memo goes much further, however. Once an attorney for the government has shared grand jury information with anyone – the president, one of his close advisors, or any other federal official whose duties are listed above – the person receiving the information can share it with anyone else without reporting to the court. That later disclosure, according to the memo’s crabbed reasoning, is not a disclosure “under” the rule, and therefore is not bound by the reporting requirement.
And there’s more: the recipient of one of those subsequent distributions can use the information for any purpose. Because these down-the-line releases are not technically disclosures “under” the rule, the “official duties” constraint does not apply. Although the memo notes that the Privacy Act, classification rules, or other regulations might limit the use of the information, the Privacy Act is riddled with exceptions, and both classified and unclassified information could be vulnerable to misuse by federal authorities.
The practical implications of Bybee’s reasoning are grave. Imagine the following hypothetical: a witness reveals that Occupy Wall Street activists are planning a series of peaceful protests during a UN meeting in New York City. The prosecutor believes the information is critical to national security, particularly in light of the Department of Homeland Security’s focus on Occupy Wall Street. She decides to share it with the president’s chief of staff. The president’s chief of staff looks at the information and passes it on to DHS and the FBI. The FBI uses the information to open an assessment of the activists and to put the grand jury witness under physical surveillance as a prelude to pressuring him to become an FBI informant. DHS uses the information to monitor the activists’ Twitter feeds and public Facebook pages. In addition, a senior FBI official passes the information to a friend who is CEO of a bank that has been the subject of Occupy Wall Street protests. The bank then launches a preemptive advertising campaign to burnish its reputation and discredit the activists. Under Bybee’s astonishingly broad interpretation, this entire sequence is – absent an independent prohibition on sharing the information – not only entirely permissible but entirely secret.
This memo guts what was left of the criminal grand jury information-sharing restrictions. It erases all but the last vestiges of judicial oversight and public accountability. And, as far as is publicly known, it is still in effect. The Obama administration, with its stated commitment to transparency, should disavow Bybee’s indefensibly broad reading.
Tags: Liberty & National Security
By Inimai M. Chettiar – 09/26/12
Today, the Justice Policy Institute (JPI) released the third in its series of reports highlighting the nation’s broken pretrial incarceration and bail system. The report, titled Bailing on Baltimore, Voices from the Front Line of the Justice System, focuses on Baltimore, Md., as an example. The selection of the Baltimore City Jail, one of the 20 largest in the country, was deliberate. It is one of the few jails that keeps data on those incarcerated and their bail amounts.
Like most counties, Baltimore’s bail system relies almost entirely on “money bail,” meaning the accused need to pay to gain their freedom before adjudication. Remember, these people are only accused of a crime, the state has yet to prove its case and they are, as a legal matter, innocent. Nonetheless, their continued liberty is dependent on their bank balance. Although bail commissioners in Baltimore have the power to release defendants on their own recognizance, this option is rarely chosen. In fact, there is almost never an assessment of the effect of pre-trial incarceration on the defendant, their ties to the community, and the likelihood they may commit another crime if released. It is a simple monetary decision. Either pay the price that is set (based on the accusation and a previous record, if any), or go to jail. Equally disheartening is that a majority – 61 percent – of all defendants are not even offered the money option in the first place. They are incarcerated straight away. In addition to considerations of fairness and justice, this is also a rotten deal for taxpayers and government budgets. An incarcerated person is prevented from contributing productively to the economy or society, and the government must pay for their incarceration and day-to-day needs. Such a system has little economic grounding
Page Croyder, who spent nearly 21 years in the Baltimore State’s Attorney office and now writes a blog about the criminal justice system, perfectly describes the fundamental unfairness of a system dependent on ability to pay. “The bail system has gotten so ‘This is how we do it’ that it’s become disconnected from its purpose and highly discriminatory against poor people,” Croyder told JPI. “For example, take me and someone poor: say we are both arrested for the same crime, we have the same background, and we pose the same risk to public safety—but I have financial resources and the other person doesn’t. I can post bail and get out of jail, and he can’t.”
Locking up someone based on their financial resources instead of their threat to public safety makes no sense in a system whose primary goal is to protect citizens. The report also gives examples of the human toll. One case discussed in the report is that of Travon Alston. Arrested at age 18 because he was in a fight, Altston’s bail was set at $250,000. Alston could not post the amount, so he spent more than nine months in jail where he was stabbed.
This report – along with Bail Fail and For Better or For Profit – provides sorely needed illumination on a system that is a starting point for mass incarceration. As state and municipal budgets grow ever tighter, lawmakers and the public would be wise to read these reports, and consider the recommendations that JPI, the Brennan Center, and other advocates have supported. Among them:
- Using citations and summonses instead of arrest for low-level offenses;
- Using risk assessments – including the effect of pre-trial detention on a defendant’s family – before determining whether bail should be granted and its amount; and
- Denying bail only to those who pose a grave risk to public safety.
These reforms will not only lead to a system that is more just, but will also create a system that makes practical commonsense. Low-income communities will gain productivity; states and municipalities will save on incarceration costs; and public safety will continue to be protected.
Tags: Justice
By Raquel Smith – 09/25/12
Voting is the one time when we are all equal. Whether young or old, rich or poor, it is the one time we all have the same say. Today is National Voter Registration Day, and across the country, organizers are registering voters and reminding Americans to sign up before Election Day.
NVRD encouraged participants and organizations to run social media campaigns, such as on Facebook and Twitter. A new study shows this kind of social media engagement may even increase turnout.
Facebook may have created 340,000 extra votes in the 2010 election, according to the study conducted by scientists from the University of California, San Diego and Facebook’s data-science team, released online by the journal Nature.
On November 2, 2010, 98 percent of Facebook’s 61 million users received a “Today is Election Day” message with links to local polling sites, an “I Voted” button, and up to six profile pictures of friend who reported voting. About 1 percent of users received the same message without photos of their friends who voted, and another 1 percent did not see any message at all.
The results were clear: Voters who saw the “social message,” which included images of Facebook friends, were more likely to vote than the group that only received the informational message or no message at all. Like other studies on peer influence, participants were especially likely to vote if they saw images of their close friends. However, surprisingly, approximately 280,000 users were indirectly influenced to vote by friends of friends.
With the new wave of restrictive voter laws across the country that could make it harder for eligible Americans to vote, social media platforms may just be the a new way to modernize the voting system. These sites offer a space for nonpartisan support to encourage voters to register and get out to the polls on election days.
Along with movements like National Voter Registration Day, campaigns like Rock the Vote also use social media to target specific audiences, like young voters, and encourage them to become more active in the electoral process. For example, Rock the Vote’s Facebook page, which has tens of thousands of likes, helps users register to vote online. The group also advises organizations trying to mobilize young voters to “embrace social media” because “the point is to interact.”
This interaction is essential to a democratic process. Even with the additional votes from Facebook’s online campaign, only 41 percent of eligible Americans voted in the 2010 election, according to U.S. Census data.
Through education and legal work, the Brennan Center fights to ensure that more eligible voters are given the opportunity to exercise their right to vote. It is an important part of this effort to embrace new avenues of communication, like social media, that can encourage voters to register and participate in this process. With just 42 days until Election Day, and many registration deadlines only a few weeks away, time is running out to get registered. The time to get registered and encourage your friends and the friends of your friends to vote is now.
Tags: Democracy, Voting Rights & Elections
By Syed Zaidi – 09/21/12
Crossposted at ReformNY
Every Friday, the Brennan Center will be compiling the latest news concerning the corrosive nature of money in New York State politics—and the ongoing need for public financing and robust campaign finance reform. We’ll also be linking to dispatches from around the country highlighting the national scope of this crisis. This week’s links were contributed by Syed Zaidi.
For more stories on an ongoing basis, follow the Twitter hashtag #moNeYpolitics and #fairelex.
CAMPAIGN FINANCE REFORM AND ETHICS NEWS
NEW YORK
Gambling Industry Donates Millions to New York Politicians
As Governor Andrew Cuomo and the New York State Legislature discuss the process of amending the State Constitution to allow up to seven new full-scale, privately owned casinos in New York, the gambling industry is funneling millions of dollars into lobbying efforts and campaign war chests. Indian tribes, racetrack casinos and other gambling interests have spent nearly $50 million since 2005—over $40 million on lobbying and roughly $7.1 million on campaign contributions—according to a new report by Common Cause. Nearly $4 million of this has gone to New York Senate and Assembly races. “Gambling interests are betting big and spending millions in advance of a potential billion-dollar pay out. New York’s sky-high contribution limits, LLC loophole, and unlimited contributions to soft money accounts means the deck is stacked against the average voter” Susan Lerner, executive director at Common Cause, stated. “We need campaign finance reform to assure the public that the state’s future won’t be decided in a high stakes game where the dealer always wins,” she added.
Congressmen Warn Schneiderman Not to Investigate Outside Groups
Earlier this year, New York State Attorney General pledged that he would investigate non-profit “social welfare” organizations that have been channeling millions of dollars into political campaigns for potentially violating their tax-exempt status, which dictates that they cannot have political campaigning as their primary purpose. Representative Dave Camp (R-MI) and Senator Orrin Hatch (R-UT) released a letter warning Schneiderman that his attempt to obtain tax information from 501(c)(4) groups could violate federal privacy laws. “We emphasize strongly that willful unauthorized disclosure of returns or return information is a federal crime subject to fines and/or imprisonment,” the letter alleged. The Attorney General’s Office defended its request for the tax records, arguing that New York has the right to examine fraud and state tax evasion, and further asserting that the Attorney General is aware of the proper procedures for proceeding with the inquiry.
2011 Ethics Legislation Riddled With Loopholes and Complications
An op-ed in the New York Times from early September attributed ethical mishaps in Albany to the part-time nature of the legislative position. “Because these ‘citizen lawmakers’ work only a few days a week, they also are permitted to have lucrative day jobs — including anything from broad consulting or legal work to key roles at companies or organizations that may benefit directly from the legislative activity in Albany.” The author credits Governor Cuomo for signing important reform legislation back in June that requires legislators to disclose their outside income and creates an independent monitor to help investigate breaches. However as Kelly Williams, corporate general counsel at the Brennan Center, explains in a letter to the editor the ethics law does not go far enough. “Lawmakers must disclose only their new clients, or new business with existing clients after July 2012 — and only those clients for whom the lawmaker personally and directly performed state business, like negotiating a contract with a state agency in an amount greater than $50,000 or obtaining a grant greater than $25,000 through legislative initiative.” These complicated procedures and loopholes necessitate that more must be done to ensure ethical behavior on the part of our lawmakers.
NATIONAL
AP-NCC Poll Shows Robust Support for Campaign Finance Reform
Over the course of this year national surveys by Gallup and the FreedomForum have illustrated that Americans support campaign finance reform by broad margins. Now, a recent poll by the Associated Press and the National Constitution Center has yielded similar results. More than 80 percent of Americans back limits on the amount of money that can be donated to groups vying to influence the outcome of elections. Furthermore 71 percent of Americans still retain a robust view of free speech, responding that people have the right to say as the please, even if their positions are deeply offensive to others. In contrast to the Supreme Court decision in Citizens United, Americans regard free speech as distinct from unlimited campaign contributions.
Romney and Obama Should Open Their Fundraisers to the Public
Leaked videos from an exclusive fundraiser for Mitt Romney, at the home of private equity firm executive Marc Leder, have gone viral. The videos demonstrate the special access and influence that moneyed special interests enjoy over the Presidential candidates. The dramatically blunt recordings illustrate the dichotomous nature of the race; an image of the candidates on the campaign trail with tediously prepared remarks to woo voters, and another in the company of elites that paid outlandish sums for direct answers from the real candidate. Of course such secrecy and duplicity is not limited to the Romney campaign—the Obama campaign’s strict entrance protocols at fundraisers this year are a response to the “guns or religion” comment that surfaced online in the 2008 race. A Washington-Post op-ed is calling on both candidates to open their fundraisers to the media so that the American public can also hear from the real candidate. “Let the media hang out. You’ll be better protected and the public will be better informed. If donors are offended and decide to stay away, the republic will just have to live with less money in its political system.”
Appeals Court Overturns District Court Ruling on “Social Welfare” Organizations
This summer, the D.C. District Court ruled that non-profits spending money on “electioneering communications” had to disclose their donors. Electioneering communications, also referred to as express advocacy, is one of two means at the disposal of outside groups, whereby they can run ads that mention a candidate without calling for his election or defeat. By contrast “independent expenditures” are ads that explicitly take a position on the candidate’s election. This week the D.C Circuit Court of Appeals overturned the District Court’s ruling. Back in 2007 the Federal Election Commission stated that non-profits engaged in electioneering communications only had to reveal donors that contributed to the direct financing of political ads. The District Court in Van Hollen v. FEC held that the FEC’s interpretation of McCain-Feingold was incorrect and that the law mandated the disclosure of all donors to non-profits engaged in "electioneering communications." However the case has now been sent back to both the District Court and the FEC, where the commissioners must either come up with a new regulation or decide to defend the old one in District Court. Furthermore, the Appeals Court has stated that the district court must find an FEC regulation to be "arbitrary and capricious" in order to overturn it.
Representative Sarbanes Holds Roundtable on Grassroots Democracy Act
Representative John Sarbanes (D-MD) is introducing the Grassroots Democracy Act (H.R. 6426) today in an effort to combat the influence of concentrated money on the political process. The Congressman hosted a roundtable discussion on his proposal yesterday with several reform organizations. “Super PACs and other shadowy groups have become a dominant force in political campaigns and most Americans do not believe Congress can operate independently of these special interests,” Representative Sarbanes stated. “It’s time to create a new paradigm that empowers grassroots donors and makes candidates dependent upon the people for support.” The legislation would match contributions of $100 or less by a 5-to-1 ratio, and create a $50 tax credit for campaign donations as well as a People’s Fund to fight back against outside Super PACs and non-profits. Candidates that forgo all contributions above $100 would receive a 10-to-1 match with public dollars. The bill has 31 co-sponsors at this stage. Adam Skaggs, senior counsel at the Brennan Center, commended Representative Sarbanes “for developing the Grassroots Democracy Act and for his continuing leadership in addressing the corrupting role of money in politics.”
Tags: Democracy, Campaign Finance Reform, NY Reform
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