May 22, 2012

Corporate Lobbying Group Asks Supreme Court Not To Use “Empirical Evidence” Of Corruption When Reconsidering Citizens United

Late last year, the Montana high court, citing the state’s long history of corporate money corrupting politics, defied the U.S. Supreme Court’s Citizens United decision and continued enforcing the state’s 100-year old law banning corporate involvement in state elections. The Supreme Court has blocked the Montana court’s decision pending on its own determination as to whether to formally hear the case this fall. Allowing a full argument in matter could allow the Court to  reconsider the merits of the Citizens United decision, which opened the doors to unlimited corporate and union involvement in American elections.

Now, attorneys for the U.S. Chamber of Commerce, a 100%-corporate funded lobbying group that has used the Citizens United decision to pump tens of millions of undisclosed dollars into federal elections over the last two years, is fighting to maintain the status quo. And they don’t want the justices to consider the evidence that the Citizens United decision, along with prior examples of corporate involvement in campaigns, causes corruption.

At the heart of the issue is whether the Citizens United decision has increased corruption. Justices Stephen Breyer and Ruth Bader Ginsburg, in a statement about the Montana decision, said the court must make clear if “Montana’s experience, and experience elsewhere since this Court’s decision in Citizens United v. Federal Election Commission, make it exceedingly difficult to maintain that independent expenditures by corporations ‘do not give rise to corruption or the appearance of corruption.'”

Interest groups and politicians are lining up to offer briefs to the Supreme Court. Some, like Senators Sheldon Whitehouse (D-RI) and John McCain (R-AZ), have submitted a brief urging the court to overturn Citizens United.

But on the other side of the issue, the U.S. Chamber of Commerce has submitted a brief arguing that unlimited corporate spending in elections should be maintained. The argument? The Chamber says there is “no evidence” that corporate electioneering has given rise to corruption anywhere. Moreover, the Chamber says that if there is “empirical evidence” that states have been corrupted by corporate involvement in campaigns, the court “should not” consider it. Here’s a quote from the Chamber’s brief (which was filed with help from the law firm Wiley Rein):

But even if the Court were inclined to reconsider Citizens United based on empirical data, which it should not, there is no evidence in the record of this case detailing the level of spending on political speech since Citizens United was decided. Pet. 27-28. The Montana Supreme Court only considered evidence of corruption in Montana “during the early twentieth century,” Pet. App. 17a, and, even then, the evidence had nothing to do with independent expenditures, see supra p.11. Moreover, this Montanaspecifi c evidence offers no insight into the effect or scope of corporate speech in the rest of the country. As this Court is aware, a majority of states permitted corporations to speak freely long before Citizens United, yet there was no evidence then (and there is no evidence now) that elections in those states have been corrupted by immense corporate wealth. Citizens United, 130 S. Ct. at 909 (citing Supp. Brief for Chamber of Commerce of the United States of America as Amicus Curiae at 8 -9). In short, this case is not a suitable vehicle for addressing the question that Justice Ginsburg posed in the Stay Order.

There is a mountain of evidence that corporate independent expenditures give rise to corruption. As Alexander Polikoff has noted, in a case that ruled that much of the Bipartisan Campaign Reform Act was constitutional, “one of the trial judges had summarized the following from a trial record that ran over 100,000 pages”:

— Corporations and labor unions routinely notify Members of Congress as soon as they air electioneering communications.

— Members of Congress express appreciation for those communications.

— Campaign organizations are aware of who runs advertisements on the candidate’s behalf, and when and where they are run.

— Members of Congress seek to have corporations and unions run such advertisements.

— After elections are over, corporations and unions often seek “credit” for their support.

If the Supreme Court can’t find any evidence that corporate independent expenditures make a difference in terms of voting patterns, justices should consider the U.S. Chamber of Commerce as part and parcel of the problem. The Chamber topped all other corporate independent expenditures in the last election, the 2010 midterms, with a $75 million campaign war chest used to elect big business-friendly members of Congress. The ad spending helped reverse the ideological makeup of Congress and boost the GOP’s numbers in the Senate.

Republic Report cross-referenced the Chamber’s key vote guide with the Chamber’s attack ad budget, which benefited Senators Rubio, Johnson, Hoeven, Kirk, Scott Brown, Boozman, Coats, Moran, Paul, Blunt, Ayotte, Portman, and Toomey. And unsurprisingly, every senator who received campaign ads on behalf of the Chamber has voted in agreement with the Chamber 70-100% of the time. In fact, after Ron Johnson (R-WI) won his closely contested race with Russ Feingold (D-WI) with the help of million of dollars in corporate independent expenditures aired by the Chamber, Johnson traveled to the Chamber to personally thank its lead lobbyist, Tom Donohue.

As we exclusively reported earlier this year, the Chamber is funded by big donations from firms like Coca-Cola, Prudential Financial, eBay Inc, and Dow Chemical, among others.

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  • “Uh, Your Honor….in my client’s behalf, I ask that you not consider the fact that he was drunk, it was after midnight, raining, and he was doing 120 MPH when he veered into the other side of the highway and smashed head-on into the other car, killing all the occupants. He never REALLY meant to do it and he’s an upstanding citizen.”

    • Judge: Counselor, what does your client do for a living? Is he rich? If so, we understand his predicament fully and apologize to him for the inconvenience and the misunderstanding. That family of 5 should have never been out that late at night, in that part of time and such in terrible weather conditions. Let that be a lesson to them. Dismissed!

  • Unbelievably the proof of corruption has been the “burden” in this case. Unfortunately common sense long left the courthouses of America.

  • are you kidding me ? is it that bad that the courts are being told to not use the facts any more ? this is some sad stuff here.

  • This is an evolution in this case that is welcome. The argument that landed this whale is that corporations have their own collective free speech. Even Eliot Spitzer thinks this sounds correct. Yet we know that this decision opens the door to the end of what democracy we have and the complete corruption of the legislative process. In other words, does the Constitution guarantee corrupt government? Don’t ask Jefferson and don’t ask Teddy Roosevelt. If it does, then they’ll have to knock TR off of Mt. Rushmore. They can replace it with Reagan’s visage. Then we’ll know the great American experiment is over. We’ll be right back to square one when we under the control of the British government that was controlled by a monopoly — the East India Company.

    • Let’s knock ’em all and replace them with Reagan, Bush Sr. and Bush Junior. Maybe Romney for fillers.

  • Bread and circus, bread and circus, bread and circus…

    Anyone that seriously thinks that the Corporate Supremos are going to second-guess and reverse themselves better have their head examined. It will never happen in a million years. This is well done so may as well stick a fork in it.

    • CatKinNY

      You’re probably right, but never underestimate the power of vanity. They are people, after all, and the five who formed the majority for this abomination have been shit on from left, right and center since they ruled; and you can bet the four in the minority have been gleefully pointing out the excesses made possible and the contempt oozing from every citizen in the nation. I would bet you a million bucks there’s been death threats. Anthony Kennedy is nearing retirement, and wondering about his legacy. Something tells me he might be looking forward to another crack at this particular nut. They could defang it without reversing it by demanding that there be full, immediate disclosure, with criminal charges of election tampering for a failure to disclose. They could leave the concept of money equaling speech intact but outlaw anonymous speech in elections. I don’t see America’s big corporations lining up to fund misleading or outright lying attack adds if they have to put their names on them. Now, the pundits take apart the falacies in the adds, but most Americans aren’t paying attention; but when the pundit starts out with “Look at the lies that Coca Cola spent half a million dollars to fool you with” those same Americans will sit up and take notice.

      • I wish I could agree with you. You still have hope, I don’t. I’ve also lived thru the kind of madness once before and know where it goes from here. They’re all in it together, they’re the same and they all worship the same god: greed.

        • CatKinNY

          Well, 23 state AG’s have joined a suit to challenge Citizens United, and more will sign up in the coming weeks and months, so we’ll see. What were you referring to? Chances are I’ve lived through it, too. Have a good one.

          • Again, I admire your hope and candor but that won’t do anything. How many AGs joined against Bank of America and the other banksters for robosigning? Remember what happened? If there is one thing that the US does well is repeat history.

            Unless you have lived in a Communist country or in Germany during Hitler, I can categorically tell you that you have not lived thru it. But if it helps any, you will now.

          • CatKinNY

            Eric Schneidermann (NYSAG) was put in charge of the task force to prosecute the banks for the robosigning; the settlement very specifically did not absolve them of wrong doing and said they would be prosecuted for violations of the law in the future. According to Eric (he’s my AG and I like him), things are coming together and the perp walks could begin soon. The arrest of a bunch of fat cat bankers in Sept or Oct would be awfully smart politics, don’t you think?

          • Ok, your hope is quickly evolving into delusion. No matter what I say or show you, you will ultimately see whatever you want to see. Just like your brethren on the Right, you keep on telling whatever it is that makes you feel warm and fuzzy all over without any regard for facts, the truth or reality.

            Have a great day, it’s been nice chatting with you.

          • Lzorro

            the dissenter, you come across as a condescending a-hole, kinda like your brethren on the Right often do.

          • It appears that we have something in common then. You, Sir, are a nosey a-hole, kinda like your brethren on the Left often do.

            And thank you for stopping by and issuing your unsolicited and worthless opinion. It was good of you to do that even if nobody gives a shit.

            Have a great day, Sir, and please don’t let the door slam you on the ass on your way out.

  • Joseph Glackin

    If Corporations are people and money is speech, what is the monetary value of freedom? Are the rich more free than the rest?

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  • thepercolator

    U.S. Chamber of Commerce = FASCISTS

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