Educating voters on political issues.
Making a voter relationship with a politician.
Filtering out the noise and bias.
Liberals and conservatives are both needed.
Getting more power to your votes.
I'm two days into learning the Blogger interface and I am pleasantly surprised at what it offers.
What prompted my creating a new blog was the need for google analytics to function reliably--which it could not do on my old bogging interface.
I have been blogging about citizens coping with the sorry state of politics for the past year and a half. On my other blog I have 37 episodes on a wide range of vital topics of deep interest to average citizens. At any given time, about one third of politicians of both parties are busily pursuing strategies to goals we would not approve of.
During this time I've been massively upgrading my understanding of American politics; and I'm more committed than ever to blog with the goal of getting citizen voters more in control of what their politicians are doing.
What I have learned in depth--largely from books by political experts--is the stunning lack of influence of America's voters. Our government, our politicians, and our 168 million registered voters (2020) function more like an ignorant mob on a witch hunt than like average, sensible adults.
I achieved my modest goals set for my first blog. I have more ambitious goals for this blog--along with the available time and energy to reach them.
Professor of Law Erwin Chemerinsky is a distinguished expert on First Amendment Law at the University of California. He and other experts in law and politics say that Citizens United v. Federal Election Commission is “one of the worst decisions in recent times” (Chemerinsky, 2014, page 264).
Citizens v. Federal Election Committee (FEC) and led to massive increases in campaign spending that can degrade the influence of citizens upon government.
I have found the 1023 pages of these three books to be essential for exposing and explaining the long, often ugly, and complicated history behind Citizens United.
237 pages of The Campaign Finance Cases: Buckley, McConnell, Citizens United, and McCutcheon by Melvin I. Urofsky
469 pages of We The Corporations: How American Businesses Won Their Civil Rights by Adam Winkler
317 pages of Our Damaged Democracy: We The People Must Act by Joseph A. Califano, Jr.
This is my second blog on Citizens United, and it reveals the political forces over 200+ years which produced that sorry Supreme Court result.
There are five categories of problematic influences highlighted in ALL CAPS below.
ABOUT MONEY AND INFLUENCE
Money is a means to an end—any kind of end you can imagine. It’s countable, and in government most money can be traced as it goes from one place to another, pushing and shoving the “insight” and critical decisions.
In today’s world, MONEY is not a physical object like the precious metals gold and silver; those are old fashioned versions of what are now correctly labeled mediums of exchange. The American dollar is the world’s most reliable medium of exchange—whether in a hundred dollar bill or in a bank account as a digital number.
INFLUENCE over other people is primarily not a physical object. All of the following are types and/or causes of influence:
The role of a principal, teacher, or coach over a student
A child has influence over a parent because they are inherently wonderful and precious.
A boss has influence over his employees because he can hire and fire.
Spouses have influence over their partner spouse because of what they can give to the other—and, of course, what they can withhold from the other.
Voting for a politician is a form of usually anonymous influence. But giving money, even a small amount of $50, results in a politician’s acquiring your contact information and they definitely will solicit more contributions.
Like you and me, politicians have jobs. They represent us and are supposed to both listen to us and run the government. Like you and me, they usually want to keep their jobs until they get a better one. Members of the House earn $174,000 per year and Senators $193,000 per year (these are 2021 figures).
All Representatives face reelection every two years and Senators ever six years. It takes lots and lots of money to insure one gets re-elected. The president, representatives and senators work hard to get the most campaign contributions they possibly can.
Most members of Congress spend as much as half their time raising money for their re-elections; and congressmen are spending less time focused on legislation (Califano, 2018, 55-61 ). Interestingly, the more prominent the politician the more money he is expected to raise, not just for himself, but for helping other politicians and their political party apparatus. In the two years after Paul Ryan became Speaker of the House (the preeminent position of power) he traveled the country widely and raised sixty million dollars for the National Republican Congressional Committee (Califano, 2018, page 54).
Melvin Urofsky in The Campaign Finances Cases wrote, “It is true, of course, that politicians of all stripes, and especially conservatives, have never wanted anything to get between them and the money they need to run for reelection.” And he also wrote, that regardless of the attempts at campaign finance reform, “In every instance, even without court intervention, politicians and donors managed to get together. As Justice Sandra Day O’Connor put it in McConnell, “Money like water, will always find an outlet” (Urofsky, 2020).
ABOUT PRESIDENTS
Every American president has necessarily had the steady ambition and political skill to promote his agenda as better than that of his opponent. Such promotion requires pretending to be fair minded and respectful but most of the time attacking, undermining, and sarcastically minimizing the worth of the opponent’s program. All attacks are full of intentional misunderstandings, simple minded ideas, and often outright lies.
I have not read about any president who has actively supported campaign finance reform. Clinton flirted with the idea but it was not a priority on which he took action. President Nixon signed the Federal Election Campaign Act (FECA) into law in 1972 but it wasn’t out of integrity (he was the most criminal of modern presidents) and avoided impeachment because his own Republican Party demanded he resign, which he did).
George W. Bush did sign into law the Bipartisan Campaign Reform Act (BCRA) in 2002. He was noticeably non committal about it, however.
The most important contribution any president can make to election finance reform is in appointing open minded Supreme Court justices whose constitutional leanings are not conservative. Until about 2021, the last year of the Bill Clinton administration, the American Bar Association provided names of worthy candidates for Supreme Court justices. But then, according to Thom Hartmann, “[A] small group of petrobillionaires and their friends, helped fund the Federalist Society, which reached out to law students; found the most reliably conservative among them; and groomed them for future positions on federal courts, including the Supreme Court itself” (Hartmann, 2019, 156-157).
According to Hartmann, George W. Bush and especially Donald Trump favored the very conservative recommendations of the Federalist Society. George Bush’s nominees (John Roberts as Chief Justice and Samuel Alito) were all reliably conservative and were confirmed by the Senate. Donald Trump nominated three conservative justices, all of whom were confirmed by the Senate (Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.)
ABOUT CORPORATIONS
Corporations are very important for understanding Citizens United v. FEC. They key, the full story can be found in Adam Winkler’s important book, We the Corporations: How American Businesses Won Their Civil Rights. Winkler wrote, “[Chief Justice] Marshall was saying that corporations were too ethereal to be the basis for constitutional rights and that, instead the court should focus on the corporation’s members” and that a corporation was “certainly not a citizen” (Winkler, 2018, page 65-66). Blackstone, the famous British legal scholar in 1758 described the corporation as an “artificial person” who “had a separate legal identity and certain rights, including property, contract, and access to court” (as found in Winkler, 2018, 399-400).
Corporations are a legal business arrangement designed to make the business a separate thing from its owners. It is formally called a “legal entity.” The detailed arrangements go in a legal document called a charter. A simple, but important illustration, is given below.
1. Before corporations were invented a Mom and Pop bakery would legally cease to exist as a business when the owners died. A corporation solves that problem.
An incorporated business continues on even if owners are incapacitated or die. When it’s created, as “The Mom & Pop Bakery,” it’s corporation’s value is divided into stocks, which can be bought and sold by other investors. The stock exists independently of Mom and Pop. When they spent $100,000 creating their bakery, they divided that hundred thousand investment into 10,000 shares. Then, to raise more operating cash, they could create and sell some more shares.
2. And if Mom and Pop were ever sued, they would be personally paying to defend themselves and would be liable to pay for any money judgment of the court.
Incorporating solves that problem because by law, “The Mom & Pop Bakery” has limited liability. Those who sue a corporation cannot get to Mom and Pop’s personal assets or to the personal assets of other stockholders. The corporation but not Mom and Pop and the shareholders can’t be sued. The corporation defends itself using money owned by the corporation and kept in its treasury.
3. “The Mom & Pop Bakery” is a separate legal entity with an official name. Because of this, it can do business in its own name, get into binding contracts, sue and be sued, and it pays taxes. If Mom and Pop decided to expand their business, “The Mom & Pop Bakery,” because of incorporation, could take out a loan in its own name.
Winkler’s startling research findings convincingly show that since the 1880s corporations and their promoters have been systematically and successfully influencing presidents, Congress, and the courts to acquire increasing civil and liberty rights. Even acquiring religious freedoms and exemptions via the Religious Freedom and Restoration Act (RFRA).
ABOUT THE HOUSE AND SENATE
They have colluded in failing to make any successful campaign finance reforms; and when there is a new law, it has been stripped of most enforcement mechanisms. However, to be fair, there seems to be improved tracking of the money flows.
The origins of campaign finance reform arise from one or more of:
Democratic or Republican president leading his Party or
House of Representatives or Senate
BUT AS SOON AS ONE OF THESE GETS SERIOUS ABOUT REFORM, OPPOSITION BEGINS TO DISABLE AND KILL OFF ANY ATTEMPTS AT REFORM.
In the early 1970s and early 2002 there was reform legislation passed: the Federal Election Campaign Act (FECA) and the Bipartisan Campaign Reform Act (BCRA). As soon as these acts were passed they were challenged in the courts and successful efforts were made to reduce their impacts. A dearth of stability to the laws! Important parts of the laws have been “gutted” by Congressional action or overturned by the Supreme Court.
Urofsky wrote that, “Finally, the federal and state laws aimed at regulating campaign finance all added up to nothing more than an exercise in futility. Although some of the more blatant and corrupt practices had been eliminated or at least marginalized, no mechanism existed to enforce the laws, nor, if truth be told, did government officials really want to do so. Both the Democrats and Republicans wanted and needed money to run their campaigns” (Urofsky, 2020).
ABOUT THE SUPREME COURT
The SCOTUS justices have the job of authoritatively stating what the law is, and in some cases they say what can’t be the law because it violates the Constitution. The cases which rise up through the Federal appellate courts and which get accepted for SCOTUS to decide—these cases have unique problems and high importance. They can’t be settled anywhere else.
The Citizens United v. FEC case was something of a mess at the Federal district court level. The issues were so complex and with so many incompatible components that the three District Court justices gave not one opinion but three! they tried very hard as shown by their very, very lengthy opinions.
In several points in his in depth study of campaign finance reform, Urofsky finds the Supreme Court to have a “lack of rigorous analysis” and “inconsistencies” (Urofsky, 2020,pages 44-45).
Urofsky: “[M]ost people agreed that the 1974 Federal Election Campaign Act (FECA) had been a dismal failure. Although providing better reporting of the dollars raised and spent, FECA had imposed no real control on campaign finance. If everyone accepted the fact of a broken system, little agreement could be found on how to fix it. Moreover, even if the system were in fact broken, that did not mean that everybody wanted it repaired “(Urofsky, 2020, page 65). Urofsky goes on to comment (page 72) that, “This ought not to be seen as a contest over who abused the system more, Democrats or Republican, because they both acted in gross disregard of the law.”
CONCLUSION
Superficially, the well-written prose of the Citizens United v. FEC opinion gives a first impression that the majority opinion and the dissent are both substantially correct! But that can’t be right, and it isn’t!
The writing of the majority and of the dissenters seems to make good sense, but when put side by side, it doesn’t match up at all.
The fundamental goals and methods of campaign finance reform are themselves in conflict. That conflict has spawned many 5-4 decisions to which are attached multiple concurring opinions-in-part and multiple dissents. Some of the campaign finance cases have come to SCOTUS in sets of opinions from judges who could not produce any majority opinion.
My opinion is that the Supreme Court hasn’t helped the campaign finance problems. Congress has so far failed at it. And the presidents don’t personally care because they usually have no problem fundraising.
Personally, I conclude that,ultimately, progress must come from Congress. Congress has the power to take away from SCOTUS the authority to act by utilizing the procedure of court stripping; Congress could divest SCOTUS of jurisdiction on the issue of campaign finance reform. John Roberts [prior to becoming Chief Justice] researched this for Reagan’s attorney general Ken Starr (Hartmann, 2019, pages 148-153).
Ideally, though, the three branches of government should have more loyalty to the American people than to just their own branch of government. And, they should have more loyalty to “We The People” than to “We The Corporations."
For references, see the relevant page on the powertomyvotes.com website.
But of course, Trump is a man documented as having lied 30,000 times as
the former, twice- impeached president. He often defends himself by
describing his political failures as "perfect." But his most frequent
and "bigly" self-defense is to explain that any accusations against him
are a "hoax."
Many Congressional republicans defend Trump by claiming the hush money charges are playing politics!
Whoa. No. The indictment concerns an alleged CRIMINAL offense. Those
republicans also have brashly attacked Manhattan District Attorney Alvin
Bragg for even investigating Trump over hush money.
Several republicans showed their ignorance of how the criminal justice system actually works. When Trump prophesied he'd be indicted in the next week, four indignant republicans took to Trump's defense. They are:
House Speaker Kevin McCarthy
House Judiciary Committee Jim Jordan of Ohio
House Oversight Committee Chairman James Comer of Kentucky
House Administration Committee Chairman Bryan Steil of Wisconsin
These four republicans jumped the gun
and started calling for an investigation of the Manhattan District
Attorney's office ! These guys wanted to haul Bragg into Congress for
testimony even before Trump was indicted.
What's
most amazing is that these four men exhibited no awareness of the facts
of the case, showed disrespect for the rule of law, and were
preemptively interfering in the criminal justice process of the State of
New York! Most legal commentators regard such interference as
seriously wrong!.
According
to MS-NBC's Rachel Maddow, "[T]he fact that that three powerful House
committee chairs would even raise this as a possibility is stark raving
mad."
Maddow goes on to say this shows how far the GOP is willing to go to "shield Trump from the consequences of his actions."
Last
night I watched a group of Bulwark experts discuss the Trump
indictment. One of them mentioned that of the current handful of Trump
indictments, the prosecution's most winnable case is that of the Storm
Daniels hush money.
It's worth
remembering that Michael Cohen (Trump's long term attorney "fixer") was
convicted in a Trump-related case and served a prison sentence. The
Manhattan DA already has much credible testimony.
Most grownups 30 years or older know that money is power and that “power corrupts and absolute power corrupts absolutely.”
In 2010, the Supreme Court of the United States, or SCOTUS for short, made two things easier: (1) corruption in politics and (2) for corporations to more effectively control the outcomes of state and federal elections. Of course, they would never admit such goals.
SCOTUS accomplished this when they decided the case Citizens United v. Federal Election Commission (FEC). The majority opinion naively dismissed concerns over corruption and distortion of the political process from excessive contributions and campaign expenditures.
Former Justice Sandra Day O’Connor commented in the related McConnell case that, “Money, like water, will always find an outlet” (Urofsky, 2020, 189).
For over 100 years our U.S. Congress has struggled to minimize corruption by making various campaign finance laws. The purpose of these laws is to prevent politicians from corruptly voting for laws because some billionaire or some corporation donated a huge amount of money to that politician and/or their campaign. How much money does the trick for influencing the vote of a politician? It could be $100,000 or a million or more. And politicians track all contributions because they need to know who it’s most important to pay attention to; and, after one election they’ll need more money for re-election.
There is nothing new about the problem of influence peddling, pay to play, or sheer bribery!
Our Congress has made many efforts at campaign finance reform. But because money is so powerful and elections so expensive, creating effective laws are exceedingly difficult. As soon as such laws are passed, powerful groups of politicians and business leaders file lawsuits to hopefully overturn or effectively disable the campaign finance laws.
I have read and studied the Citizens United v. FEC majority opinion written by Justice Anthony Kennedy; it was about 50 pages long. I have read and studied the almost 100 page dissent by Justice John Paul Stevens. Superficially both the majority opinion and the dissent gave me clear and thoughtful impressions; however, their conclusions were completely opposite. Eventually, I realized that Kennedy and Stevens were clearly writing about an extremely important but complex, hard to handle, topic. Justice Kennedy glossed over many important details and dismissively ignored important campaign corruption problems; whereas, Justice Stevens refuted Kennedy’s majority opinion point by point, providing all the details necessary to grasp the full extent of the problems to be addressed. Stevens’ dissent was clearly written, amply covered the historical background and convincingly shred the majority opinion.
As you will notice, below, the four campaign finance cases discussed are noteworthy for producing much confusion in the justices and for split court decisions. The Citizen United district court judges each wrote separate opinions, and these were what came on appeal to SCOTUS.
ENJOY READING ONE OR MORE OF THESE BOOKS
I want you to know the sources of my information. I want you to have the best knowledge, the most solid facts for becoming a more powerful citizen and voter. Here are four books from which come most of facts you’ll read in this blog. My opinions and conclusions are consistent with these four books and also benefit from many additional sources.
(1) If you only read one of the four books, read: Our Damaged Democracy: We The People Must Act, by Joseph A. Califano, Jr. (2018). Very readable. Califano, an attorney, has spent 30 years in Washington DC government operations: serving at the Pentagon; on the White Hose staff; in the Cabinet as U.S. Secretary of Health, Education, and Welfare; as a Wall Street attorney; as a member of the board of 15 public companies and not-for-profit institutions. And he has authored 14 books. I completely agree with one of the book’s reviewers who wrote that the book is an “[E]lightened, entertaining, and rigorously nonpartisan book.”
(2) If you want to read ALL the background which produced Citizens United v. FEC, read Melvin I. Urofsky’s 2020 book The Campaign Finance Cases: Buckley, McConnell, Citizens United, and McCutcheon. This has 187 pages of well-written but dense prose. Very authoritative. It has five appendices and other pages of useful lists of cases, etc.
(3) If you want a fascinating, very readable, story of how the corporations went from being “artificial persons” to getting pretty close to actual personhood with a long list of various rights, read: Adam Winkler’s 2018 book We The Corporations: How American Businesses Won Their Civil Rights. From this book you will learn about:
“The transformation of the Fourteenth Amendment from a guarantee of equal rights for racial minorities into a tool for corporations to strike down business regulation, was the one of the first quantitative studies of the Supreme Court, conducted in 1912.”
That study discovered that less than 5% of 604 Fourteenth Amendment cases involved African Americans. There were 28 cases, and in nearly all of those 28 cases the racial minorities lost.
More than half of the 604 cases involved corporations successfully striking down regulations on business such as: minimum wage, child labor laws, and zoning laws.
(4) If your want to read a smaller and easy to read book, then get Thom Hartmann’s book, The Hidden History of the Supreme Court and The Betrayal of America (2019). There’s plenty of well-written drama. This will get you riled up and motivated to take action!
These are the four books which finally revealed the missing pieces by which I could acquire an overall understanding of the good, the bad, and the ugly of politics in government. Indeed, there are so many moving pieces, pieces hiding themselves, going in different directions and fighting one another. It is impossible to hold the full pattern of all these pieces in one’s mind at one time.
But little by little, we can learn how the Presidency, Congress, and the Supreme Court actually work. Don’t be discouraged! Everyone can be a life long learner about something in government that matters to you; and this will make you proud.
REASONS WHY EFFECTIVE CAMPAIGN FINANCING REFORM IS DIFFICULT
Here, from Urofsky (2020, xi and xiii) are the worthy ideals or goals most can agree on:
“On the one hand, there is the desire [goal] to protect the integrity of the political system from the impact of large contributions from wealthy donors, unions, or corporations. On the other hand is the need [goal] to protect political speech, which is at the core of First Amendment protection”
But, these goals are in conflict with each other.
Over the years, politicians and experts in government have labored towards these ideals and goals. The output of their work, including many SCOTUS majority and dissenting opinions show two themes:
“One is an appeal to the command of the First Amendment that Congress shall make no law abridging freedom of speech, especially political speech, which many scholars believe to be the core value protected by the Speech Clause.”
“The other is an appeal to facts and common sense, that while political speech is important, if we allow large sums of money to influence who can talk, who can gain access to candidates and officeholders, the political process will be corrupted and the speech will be meaningless.”
And also, these appeals [actually goals] are in conflict with each other.
Campaign financing reform is inherently difficult because of conflicting goals and conflicting appeals; any laws written will have contractions which then must be very carefully resolved by SCOTUS. No simple-minded "solutions" like Citizens United v. FED will work out!
Joseph Califano, in Our Damaged Democracy, writes that:
“It’s time for the Supreme Court to scrap as mistaken and bad law the decision in Buckley v. Valeo, and its progeny like Citizens United. Giving money First Amendment rights has generated a steady rise in soft and hard corruption, fed a decline of trust in government, and made a mockery of the court’s one person, one vote decision” (Califano, 2018, page 154).
Califano severely criticizes the “[J]ustices of the Supreme Court who have made it impossible for the legislative branch even to consider reforms” (Califano, 2018, page 154).
When a candidate wins, “[T]he people who were his or her big bankrollers have special access unavailable to the individual voter. By blessing unlimited political contribution, the court has given special interest and single-issue individuals the power to buy that access and undermine the value of the individual citizen’s vote” (Califano, 2018, page 154).
BUCKLEY v. VALEO
Urofsky asserts that to understand Citizens United, one must start with studying Buckley v. Valeo (1976).
In Buckley the Court distinguished campaign contributions from campaign expenses(Urofsky, 2020, xiv).
Campaign contributions constitute money given to candidates
• was not classified as being speech
• the amount given could be regulated, limited
Campaign expenses was money spent by candidates
• campaign expenditures constituted speech
• campaign expenses could not be regulated by government
When I first read this distinction I was befuddled. I read it several times but couldn’t grasp it as a valid distinction; the distinction seemed arbitrary, contrived for reasons not apparent. Urofsky wrote:
“[T]he Court’s reasoning is confusing.” Later in his discussion he wrote, “But although the Court apparently equated the expenditure of money by candidates with free expression, the lack of rigorous analysis in the opinion would cloud the issue of campaign finance reform for the next quarter century” (Urofsky, 2020, page 44).
According to Califano (2018, page 128): Buckley v. Valeo was a date “which will live in infamy” because SCOTUS gave money First Amendment rights.
This is a little overstated, because the free speech First Amendment rights applied to campaign expenditures and not to campaign contributions. Additionally, campaign contributions as speech or a version of some other civil right goes back for many decades.
Buckley struck down three amendments to the Federal Election Campaign Act which put a limit on total spending by a candidate’s campaign. Buckley eliminated any limit on campaign expenditures. A candidate could receive lots of money from almost any source AND once it’s expended on his campaign then it’s not limited (this sounds somewhat puzzling to me, however).
CITIZENS UNITED
In 2010 SCOTUS held that “[T]he free speech clause of the First Amendment prohibits the government from restricting independent expenditures for political campaigns by corporations, including nonprofit corporations, labor unions, and other associations” (Wikipedia: https://en.wikipedia.org/wiki/Citizens_United_v._FEC). An independent expenditure is a political campaign contribution that clearly advocates for the election or defeat of a clearly identified candidate that is not made in cooperation or coordination with a candidate.
Citizens United also overruled Austin v. Michigan Chamber of Commerce and overruled some restrictions in McConnell v. FED.
IN CONCLUSION, A FEW FINAL THOUGHTS
“Our damaged democracy” isn’t going to fall off a cliff any time soon. Over the last 250 years there have been many crazy times, bad laws, nutty SCOTUS decisions, and corrupt presidents—and we survived, made a few reforms, and found new and different ways to swing from extreme to another.
Politics, I’ve come to realize, is the most unwieldy (hard to carry or manage because of size, shape, etc.) of topics to understand and cope with. I guess it is because we’re dealing with masses of people. Whatever one looks at in politics, it’s kind of familiar but has weird causes and related issues, on and on, endlessly, it seems.
But this past year I’ve been hugely gratified in the study of American government. My appreciation for politicians of all parties has grown. I’m actually a lot less cynical because I’ve come to acknowledge the substantial efforts of many public figures whom I formerly disliked for superficial reasons.
And finally, there are many more blogs to be written!
For references, see the relevant page on the powertomyvotes.com website.
