The lobbyists' boy on the US Supreme Court

Submitted: Jan 30, 2015
Badlands Journal editorial board

 While McClatchyCo, a Sacramento institution since 1857, weeps for the sanctity of the political campaign-funding process or, more typically, makes queries as demurely as a debutante fresh out of J-school, let us be reminded of the US Supreme Court justice who was so decisive in destroying what little regulation there ever was in campaign financing: Sacramento's own Justice Anthony Kennedy, a guy with a past more colorful than his carefully cultivated, squeeky clean, nerdish image implies. -- blj

His father, Anthony "Bud" Kennedy, was a backslapping, hard-drinking partner in a powerful lobbying law firm run by one Arthur "Artie" Samish, "the "secret boss of California" who finally went to prison on tax charges in the mid-1950s, while young Tony was studying to enter law school. Samish liked to brag that he had amassed more power than anyone else in the state, including the governor, that he could buy any legislator with "a baked potato, a bottle, or a broad," and that he could "unelect" any lawmaker who didn't vote his way... When Bud Kennedy died suddenly in 1963, young Tony was only two years out of law school. But he went into the family business and inherited his late father's clientele...

In Citizens United, Kennedy resolved what appeared to be an empirical question about independent spending and corruption: “We now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption."... John Adams famously said that “facts are stubborn things.” But Anthony Kennedy foreclosed a look at the facts. By resolving a question of fact by judicial fiat, he may have sealed the fate of our campaign finance system.

-- Joe Conason, Alternet, April 7, 2014



Modesto Bee

How many millions to buy 2016 election?

Kochs’ fundraising goal sets bar high


It was the political equivalent of a beauty pageant, candidates parading through Palm Springs to win favor with brothers Charles and David Koch and 450 of America’s wealthiest citizens.

Kentucky Sen. Rand Paul, Sen. Ted Cruz of Texas, Sen. Marco Rubio of Florida and Wisconsin Gov. Scott Walker strutted their conservative bona fides in earnest efforts to charm and impress some of the nation’s richest people. Who can blame them? Campaign 2016 is underway, and you need rich friends to win elections in America.

Meanwhile, The Washington Post reported the Koch brothers set a fundraising goal of $889 million for 2016. That’s more than double the $407 million the Koch network spent during last 2012 presidential election. Much of that mind-numbing sum will be spent on presidential and congressional races. Hence the political pageant.

The magnitude of the effort makes clear the billionaire brothers and their wealthy friends are creating a shadow political party. We say “shadow” because that’s where it will carry out its campaign efforts. Using antiquated Internal Revenue Service code sections to avoid having to publicly disclose their spending, the Koch-funded nonprofit organizations will operate in the dark.

The Republican National Committee and Democratic National Committee, by contrast, identify contributors and expenditures in regular public campaign finance filings. It’s the law.

The travesty is not merely the amount of money being spent to purchase your vote. It’s the lack of transparency we find more abhorrent.

By failing to disclose, the Kochs ignore the public’s right to know who is trying to influence the elections, further sullying their reputations and diminishing the democracy they claim to cherish.

The Koch brothers aren’t your run-of-the-mill billionaires. They place No. 4 and 5 on the Forbes list of billionaires, at $40billion each, earned in part from inheriting an oil company founded by their father, a founding member of the John Birch Society. They took that seed money and added enormously to it through mineral extraction, pipelines, paper products, gasoline and even Teflon.

The Keystone Pipeline debate isn’t so much about what is good for America as it is about is good for the Koch brothers. They have long been significant investors in the Canadian tar sands that will flow through the pipeline, earning them an estimated $70 billion or more. That makes their $889million political investment seem like a bargain, along with millions more they are spending on political campaigns in Canada.

To be sure, wealthy Democrats also spend heavily. Liberal Tom Steyer, whose $1.6 billion places him No. 383 on Forbes’ list, spent $73.7 million to elect Democrats in 2014. That’s more than anyone else last year – at least that we know of. Unlike much of the Kochs, Steyer disclosed how much he spent, and where he spent it.

The U.S. Supreme Court says rich people and corporations can spend as much as they want on independent campaign efforts. It is a First Amendment right. That money amplifies their message beyond that of others is of no concern to the courts.

The Kochs are free to espouse any political philosophy they choose. That’s not the point. So much money can do good or harm, which is why elections have rules. No one wants to see a rigged beauty pageant or a rigged election.



Justice Bought? Justice Kennedy's Lobbyist Roots Might Explain His Vote on McCutcheon

The court's 'swing vote' swings the wrong way on campaign finance reform cases.

By Joe Conason / AlterNet

For a large and bipartisan majority of Americans, the increasing power of money in politics is deeply troubling. But not for the conservative majority of the United States Supreme Court, whose members appear to regard the dollar's domination of democracy as an inevitable consequence of constitutional freedom -- and anyway, not a matter of grave concern. Expressed in their decisions on campaign finance, which continued last week to dismantle decades of reform in the McCutcheon case, the court's right wing sees little risk of corruption and little need to regulate the flamboyant spending of billionaires.
        Based on the behavior of certain conservative justices, such as Antonin Scalia, Clarence Thomas, and Samuel Alito -- who flout the rules that govern partisan behavior among lower-court judges -- it is easy to regard their rulings as partisan cynicism. But there is also an element of willful naivete when the conservatives claim, for instance, that influence-seeking donations will be exposed by the instant transparency of publication on the Internet. Any reporter who has covered elections can attest that there are dozens of ways for wealthy donors to avoid public scrutiny until it is much too late to matter.
        But if right-wingers like Scalia and Thomas are simply pursuing ideological objectives, what about Anthony Kennedy, the Ronald Reagan appointee from California who is sometimes viewed as a moderating influence and a "swing vote"? On the issue of campaign finance, Kennedy has marched along with the majority, seeming just as fervent in his urge to destroy every regulation and protection against the "malefactors of great wealth" erected since the days of Theodore Roosevelt.
        It was Kennedy who wrote the majority opinion in Citizens United, which dismissed the notion that corruption will arise from unlimited political campaign contributions because all such money will be disclosed. "Citizens can see whether elected officials are 'in the pocket' of so-called moneyed interests ... and disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way," he wrote. "This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages."
        Yet if any Supreme Court justice knows how ridiculous that sounds, it must be Kennedy -- whose own background as a corporate lobbyist and son of a lobbyist has been forgotten in nearly three decades since his Senate confirmation in 1987.
        Yes, Kennedy was a respected appellate court judge before Reagan appointed him to the high court. But before that, he grew up and then worked as an attorney in Sacramento, Calif., where his father became a "legendary" lobbyist in a state capital renowned as "freewheeling" (a polite term that means "routinely corrupt"). His father, Anthony "Bud" Kennedy, was a backslapping, hard-drinking partner in a powerful lobbying law firm run by one Arthur "Artie" Samish, "the "secret boss of California" who finally went to prison on tax charges in the mid-1950s, while young Tony was studying to enter law school. Samish liked to brag that he had amassed more power than anyone else in the state, including the governor, that he could buy any legislator with "a baked potato, a bottle, or a broad," and that he could "unelect" any lawmaker who didn't vote his way.
        The major clients of Samish and Kennedy were racing, entertainment and liquor interests, notably Schenley Industries, then owned and run by J. Edgar Hoover's mobbed-up pal Lewis Rosenstiel. When Bud Kennedy died suddenly in 1963, young Tony was only two years out of law school. But he went into the family business and inherited his late father's clientele.
        While Kennedy always insisted that lobbying was only a "sideline" in his law practice, his billings were substantial -- the equivalent of hundreds of thousands or more in today's dollars. In 1974, he pushed through a bill for Capitol Records that saved the company (and cost the state) millions in sales taxes.
        How did he do it? The same way that special interests work their will today -- by doling out huge wads of cash to lawmakers on behalf of his clients. The single largest recipient of Kennedy lobbying largesse, according to the Los Angeles Times, was a legislator who introduced a bill to benefit the opticians lobby that Kennedy himself had drafted (it passed). He gave that guy alone about $6,500 in campaign contributions over six years, or roughly $40,000 in today's dollars.
        So if anybody on the court knows how the political and legislative process is greased in this country, that would be Justice Kennedy. After all, he was reared in the game. And it shouldn't deceive anyone when he sounds as if he doesn't understand how things work or who wins in that perverse process -- and how everyone else loses.




Super-Soft Money

How Justice Kennedy paved the way for “SuperPACS” and the return of soft money.

By Richard L. Hasen


Soft money is coming back to national politics, and in a big way. And we can blame it all on a single sentence in Justice Anthony Kennedy’s opinion in 2010’s controversialCitizens United decision—a sentence that was unnecessary to resolve the case.

In this election cycle, “superPACs” will likely replace political parties as a conduit for large, often secret contributions, allowing an end run around the $2,500 individual contribution limit and the bar on corporate and labor contributions to federal candidates.* To understand how we got into this predicament, we need to go back briefly to the 1970s. In the wake of Watergate and other money-in-politics scandals, Congress imposed tough new campaign finance restrictions. Not only did the law limit contributions to federal candidates to $1,000 per person (an amount it eventually raised to $2,000 and indexed to inflation), it also limited independent spending—that is, no one person or group could spend more than that amount—to $1,000. In a Solomonic 1976 decision, the Supreme Court in Buckley v. Valeo split the baby, upholding the contribution limits but striking down the independent spending limit as a violation of the First Amendment protections of free speech and association.

Buckley set the main parameters for judging the constitutionality of campaign finance restrictions for a generation. Contribution limits imposed only a marginal restriction on speech, because the most important thing about a contribution is the symbolic act of contributing, not the amount. Further, contribution limits could advance the government’s interest in preventing corruption or the appearance of corruption. The court upheld Congress’ new contribution limits.

It was a different story with spending limits, which the court said were a direct restriction on speech going to the core of the First Amendment. Finding no evidence in the record then that independent spending could corrupt candidates, the court applied a tough “strict scrutiny” standard of review and struck down the limits. (In a footnote two years later, however, the court left open the question of whether corporate independent spending could corrupt candidates.)

Fast forward a few decades. In Citizens United, Kennedy resolved what appeared to be an empirical question about independent spending and corruption: “We now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.”

The flat statement of fact is illogical. If the court believes that the government may limit a $3,000 contribution to a candidate because of its corruptive potential, how could it not believe that the government has a similar anticorruption interest in limiting $3 million spent in an independent effort to elect that candidate? Would a federal candidate not feel much more beholden to the big spender than the more modest contributor?

It is not even clear that a majority of the court (or even Kennedy) actually believes this sentence. The Citizens United decision is at odds with Kennedy’s opinion from just six months earlier in Caperton v. Massey, recognizing that a $3 million contribution to an independent group supporting the election of a West Virginia supreme court justice required that the justice recuse himself from a case involving the independent spender supporting his candidacy. The Caperton Court pointed to the “disproportionate” influence of that spending on the race and at least an appearance of impropriety.

It gets even worse: That sentence from the Citizens United case is unnecessary. If the court wanted to strike down the corporate spending ban, it could have simply said that even assuming independent spending has the potential to corrupt, an absolute corporate spending limit, like the individual spending limit struck down in Buckley, imposed too high a free speech cost and therefore violates the First Amendment.

But the court’s declaration that independent spending does not corrupt has spawned the Super-PAC and the unraveling of campaign finance law. The unraveling went like this. First, if independent spending cannot corrupt, then an individual’s contributions to an independent group cannot corrupt. (Gone was the $5,000 contribution limit to political action committees—or PACs—which only spend independently to support or oppose federal candidates.) Second, if an individual’s contributions to one of these “Super-PACs” cannot corrupt, then neither can a corporation’s or a labor union’s. (Corporations now have a way to influence elections anonymously, thus avoiding the risk of alienating customers.) Third, if an individual has a constitutional right both to contribute to a candidate and to spend independently, then a PAC should be able to do the same thing simply by having two bank accounts. (Every PAC is now a Super-PAC.)

All of this has spawned a shadow campaign in which each presidential candidatehas his or her own supportive Super-PACs, and contributors can curry favor with the candidates by giving unlimited sums to the Super-PACs. Even worse, thanks to holesin our disclosure laws, it is possible to use other organizations as money launderers to keep Super-PAC contributions’ ultimate sources secret from the public. And Super-PACs like American Crossroads may have found a way to make ads with the candidates themselves without losing their label as “independent” spenders.

Now comes the most audacious argument in this series so far. If all PACs are Super-PACs, then the rules for these PACs should also apply to “leadership PACs.” Leadership PACs are political committees that sitting members of Congress (and others) set up to allow them to make contributions to other candidates and spend money to support their election. It is a way for a member of Congress to build influence.

Sen. Mike Lee’s Leadership PAC, the Constitutional Conservatives Fund PAC, has just asked the Federal Election Commission for permission to collect unlimited contributions from corporations, labor unions, and wealthy individuals for independent spending to elect other candidates. The SuperPAC’s lawyers argue that there’s no danger of corrupting these other candidates, because its spending to help them get elected will be independent of those candidates.

Even if we suspend disbelief and agree on this point, the request ignores the greater danger: that the leader of the leadership PAC will become, or appear, corrupt. Corporations or labor unions (acting through other organizations to shield their identity from public view) could give unlimited sums to an elected official’s leadership PAC, which could then be used for the official to yield influence with others.

There’s nothing to stop someone like Senate Minority Leader Mitch McConnell from effectively becoming the fundraising arm of the Republican Party, funneling all the money through his leadership PAC. The McCain-Feingold law barred political parties from collecting such unlimited “soft money” contributions, and the Supreme Court in 2003 upheld that limit on the grounds that such unlimited fundraising by politicians could corrupt politicians or create the appearance of corruption.

The Supreme Court in Citizens United did not touch that holding, and said it was doing nothing to mess with the contribution rules. But Kennedy’s unfortunate sentence—which denies the reality that large independent spending favoring a candidate can sometimes corrupt or create the appearance of corruption—looks like it may doom those soft-money rules too. The result of all this is that federal campaign finance law is unraveling even faster than pessimists expected after Citizens United.

John Adams famously said that “facts are stubborn things.” But Anthony Kennedy foreclosed a look at the facts. By resolving a question of fact by judicial fiat, he may have sealed the fate of our campaign finance system.

Correction, Oct. 25, 2011: This article originally misstated the individual contribution limit for federal candidates. It is $2,500, not $2,400. (Return to corrected sentence.)

Richard L. Hasen is a professor of law and political science at the UC–Irvine School of Law and is writing a book on campaign finance and political equality. Follow him on Twitter.






Sacramento Bee/Capitol Alert

Editorial: Will Supreme Court open floodgates on political money?

After unleashing unlimited donations to independent committees with its Citizens United decision in 2010, the U.S. Supreme Court on Tuesday will consider the next step toward full deregulation of campaign spending.

Although we aren't holding out hope, the justices need to leave in place aggregate contribution limits that apply to donors giving to federal candidates, national parties and political action committees.

Federal courts repeatedly have upheld reasonable donation limits, rightly recognizing the corrosive and corrupting influence of huge donations to individual candidates.

Now, Shaun McCutcheon, a wealthy Republican donor from Alabama, and the Republican National Committee are challenging aggregate caps on contributions to candidates and committees.

Caps are fundamental to the Federal Election Campaign Act, approved after the scandalous 1972 presidential election that led to President Richard M. Nixon's resignation.

McCutcheon also hopes to limit a 1976 Supreme Court decision upholding the federal limits on the grounds that government could limit the size of donations directly to candidates to prevent "corruption or its appearance."

As it stands, one person can give $2,500 per election to a federal candidate, $30,800 per year to national party committees and $5,000 per year to other federal committees. But there's also an aggregate cap on of $123,000 per election cycle.

Rep. Chris Van Hollen, D-Md., and Rep. David Price, D-N.C., submitted a brief that walked through the math: Absent the limits, one donor in a two-year cycle could give $2.4 million to candidates for the House and Senate, plus $194,400 to the three main party committees, and $20,000 to each of 50 state party committees, for another $1 million. Donations would not end there. In 2012, there were 2,757 independent political action committees. Individuals could give millions more to those PACs.

A decision to abolish aggregate limits might not serve politicians well. Few moms who bake apple pies give million-dollar donations. Most big donors are moguls who expect a quo for their quid.

Voters might doubt the independence of any candidate obtains million dollar donations, so long as the information gets disseminated before election day. There would be disclosure of the seven-figure donations, which is important.

Justice Anthony Kennedy, originally from Sacramento, wrote the Citizens United decision, which opened the way for obscene sums of money donated by billionaire and corporations to committees not directly tied to candidates. In the McCutcheon case to be heard on Tuesday, Kennedy has the opportunity to make clear the important distinction between spending on independent campaigns and hard money donations solicited by individual politicians.

Republicans back McCutcheon for a reason. They traditionally have had more donors who give large sums than Democrats.

The nonpartisan Campaign Finance Institute reports that President Barack Obama and Mitt Romneyraised roughly equal sums in 2012, $1.13 billion for Obama to Romney's $1.03 billion. However, Obama collected 28 percent of his money from donors giving $200 or less, compared with Romney who collected 12 percent of his total from small donors. A fourth of Romney's donors gave the maximum allowed by law, compared with 11 percent of Obama's donors.

Such numbers suggest one solution rests with individuals who get involved by giving $5 or $10 to candidates of their choice. Democratization of campaign money would be the greatest reform. The Supreme Court should not tip the balance of power by striking down a reasonable law approved in bipartisan fashion that seeks to curb corruption.


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