Free Speech for Corporations and Unions Says SCOTUS

The Supreme Court ruling in Citizens United V. Federal Election Commission (FEC) is a significant development in American electoral politics and campaign finance reform that will have deep impact on the 2010 mid-term election. The 5-4 decision reverses precedent that barred corporations and unions from spending money to advocate the defeat or election of a federal candidate up until Election Day.

In many ways this decision is bad for the Democratic and Republican national party committees. While the ban is lifted on corporate and union expenditures, the political parties are not relieved from the prohibition on corporate (or “soft”) money. The danger exists that the major political parties’ voices will be displaced by corporate and union expenditures that will not have to exist under the limits imposed on contributions to federal candidates and committees. Corporations and unions will have the ability to easily allocate and spend money on political campaign messaging while the political parties labor under the expensive burden of raising limited contributions from individual donors and political action committees.

This decision is a boon to the political consultant class. The pool of resources and potential clients now available to the campaign professionals just exploded. Corporations and unions will need these professionals to plan and execute their political expenditures and the political consultant will grow richer and more influential thanks to this Supreme Court decision.

It is worth the effort to read the opinion of the Supreme Court written by Justice Kennedy as well as the dissent by Justice Stevens. The opinion of the Court speaks to the dangers of chilling free speech by not overturning precedent in this case. Justice Kennedy’s opinion also makes the sensible contention that just because elected officials listen and give access to donors it does not mean those same officials are corrupt. Most importantly, Justice Kennedy’s opinion instructs that the corporation has as much right to free speech as any other member of society and thus any laws muzzling corporate speech is a First Amendment violation. Throughout the opinion the argument is made that the court must guard against the role of the FEC as censor as it dictates who gets and does not get a voice in political campaign dialogue and debate.

Justice Stevens’ dissent is long and detailed but also sensible; rejecting out of hand that corporations are members of society (citing that a corporation cannot hold public office and has no soul). Justice Stevens is adamant that the five justices who voted to reverse the lower court’s decision in this case simply expanded the case from its limited nature, thus changing the case in order to change the law (a trend in the federal executive branch most prominent during the recent Bush Administration). The dissent goes on to observe that the majority of the Supreme Court violates the judicial process of maintaining what has been decided (stare decisis), observing that if it is not necessary to decide more, it is necessary not to decide more.

While Justice Steve’s argument is persuasive, sometimes it best to err on the side of caution. “Whose foot is to be the measure to which ours are all to be cut and stretched,” said Thomas Jefferson. Those words are applicable to what is sure to be a continuing debate about campaign finance reform because of this Supreme Court decision.

Election Moneyline - MA U.S. Senate Special

Today is the opening ceremony of the 2010 mid-term elections with a special election for the U.S. Senate to fill Sen. Edward Kennedy’s (D-MA) seat. Therefore, some odd-making are in order.

It is also worth noting that Republican rank and file, particularly Brown’s major donors and fundraisers are not happy with the national Republican Party’s (e.g. RNC and NRSC) level of support of Republican nominee State Sen. Scott Brown.

Martha Coakley – Democrat
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Arrogance and stupidity on the campaign trail are a lethal mixture and she seems to have perfected the concoction in this special election. This race was hers to lose and she may well have done that with the consequences being severe to President Obama’s healthcare agenda.  A Coakley win derails GOP talking points abouts about the mid-term election trend.

Scott Brown - Republican
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Brown has the momentum going into today’s election and has to be the favorite despite running in a Democratic stronghold to replace a Democratic icon. This longest of shots is like sinking a jump shot at TD Garden from the roof of a moving car on I-93; don’t be surprised if Brown makes it. While Brown’s win will have been done on the back of displeasure over President Obama’s healthcare reform, it is not a bad pickup for the moderate wing of the GOP.

Small Donors With a Big Voice

Last week the Brookings Institute unveiled a study on how to foster citizen participation through small donors and volunteers to political campaigns, entitled Reform in the Age of Networked Campaigns. The authors are all well known and rightly respected thinkers on campaign finance reform (Anthony Corrado, Michael Malbin, Thomas Mann and Norman Ornstein). The conclusion of the study is that campaign finance reform should encourage small donor participation so that the percentage of small donations increases with the intent to curb potential corruption. The ideas within the study are sensible. However, it is worth examining whether the proposed reforms could encourage a new source of political coercion.

Timely to this topic is the release of Jaron Lanier’s new book, You Are Not A Gadget. In his book Mr. Lanier ponders whether the “Web’s structure and ideology are fostering nasty group dynamics and mediocre collaborations” (New York Times, January, 2010). While Mr. Lanier’s book is largely about retooling the Web through software revisions and other innovations to combat piracy, his point about hive thinking and the online mob mentality is applicable to campaign finance reform in the context of socio-political media.

The Web offers numerous places for the ideological to find a home and self-polarize. Conservatives tend to take refuge at places like Red State and Free Republic. Liberals tend to congregate at places like Daily Kos and Fire Dog Lake. These sites offer the opportunity to mix and mingle with those of a similar political persuasion and are also involved in issue advocacy (usually to the benefit of candidates aligned with their stated policy interests). These types of sites also assist in candidate money bombs; when candidates set a date to raise a specific amount of campaign contributions. Ultimately, these political ideology sites encourage the type of hive thinking that leads to a mob mentality which, with critical mass, can be very influential in a political campaign contest and upon the direction of a political party. Due to the large numbers of people engaged in politics via social media, these networks can exhibit a great deal of leverage over a candidate and political party.

The assumption in Reform in the Age of Networked Campaigns is that our current mechanism for funding political campaigns encourages corruption; with a few giving a lot to political candidates. Those few who give so much are therefore in a position to influence legislators after the election has been won. It is undeniable that giving money in the manner and amount done by corporate political action committees is intended to have influence on legislators.

When asked during the presentation of their report if their proposals could give rise to further polarization of the electorate, the authors flatly rejected the possibility. The reason for the rejection is that small donors tend not to try lever their small donation (less than $100) with candidates who become legislators. That may be true in the direct mail fundraising paradigm. However, when socio-political media donors band together to give to a candidate the percentage of small donations given with a goal in mind increases. When that increase reaches a critical mass, the band of small donors will have a clear voice that cannot be ignored by candidates, even though those donors may not be constituents.

The overall impact of social media is positive because it increases citizen participation in elections (e.g. President Obama’s 2008 candidacy). But it also raises the potential danger when combing “hive thinking” with the leverage of aggregate donations by small donors banding together who are activated by the impact they can have on candidates by bundling their contributions via socio-political media. This in turn could result in the increase of corruption, rather than its restraint which is one objective of the report offered by the authors of the Brookings Institute study. Candidates will find it is easier to say no to a handful of lobbyists than it will be to say no to large groups of organized small donors with the ability to both vote in a block and voice their demands in unison. That being said, money is an essential element to every candidacy. Greater citizen participation in campaign fundraising means more prospective donors and there isn’t a campaign professional who would decline a bigger campaign budget.

Sarah Palin's Favorite Founding Father

Mrs. Sarah Palin recently stated that the founding fathers were led by George Washington. This answer speaks volumes about Mrs. Palin’s basic knowledge about the history of the United States. George Washington, while our country’s greatest president, was not necessarily a leader within the Continental Congress. Such shallow knowledge about the founding of the nation from Mrs. Palin, a person of political influence, is disturbing.

The Continental Congress’ leaders are generally thought to have been those who drafted the Declaration of Independence (Thomas Jefferson, John Adams and Benjamin Franklin) as well as John Hancock (president of the Second Continental Congress) who succeeded the first president, Peyton Randolph. There were 56 delegates in the First Continental Congress (there were 253 total attending delegates in both congresses), all of whom were patriots but not all of whom agreed with what the colonies’ disposition should be toward the King of England.

Washington emerged as a leader when selected by the Second Continental Congress in 1775 to be the general of the Continental Army, partly due to his military experience. George Washington is well known to every American citizen and he is cited by most Americans as the greatest American president. Perhaps this is the only founding father that Mrs. Palin has any knowledge of at all.

It is generally accepted that Mrs. Palin has an intellectual handicap. When Mrs. Palin places herself in the public eye it is both acceptable and important to point out her intellectual deficiencies. The point of this exercise is to both be a check on facts and figures espoused on cable television news programs, but also to vigilantly measure her abilities as she pursues greater political influence.

As the topic of founding fathers was discussed by Mrs. Palin it is worth noting arguably the most famous quote from signing of the Declaration of Independence. In response to Mr. Hancock’s urging for the delegates to “hang” together with the announcement of the document, Mr. Franklin said, “We must indeed hang together, or most assuredly we will all hang separately.” Red Elephant fears Mrs. Palin will cause the hanging of the GOP with her shallow intellect and pursuit of money, power and fame.

Primary Rules of Engagement

The latest offensive from the Tea Party movement is to warn Republican Party leaders that if they do not adhere to “constitutional” conservatism then they are going to be “ostracized.” Challenging Republican incumbents in primary elections will be the vehicle to punish the GOPers who do not adhere to the movement’s principles. This strategy is perfectly legitimate until it strays into territory explored by the Tea Party movement in New York’s 23rd congressional district and results in a sore loser variable that diminishes the movement’s legitimacy as an enforcer of “constitutional” conservatism.

In NY’s 23rd CD contest the losing GOP primary candidate, who earlier vowed to support his Republican primary opponent in the event she won reversed himself and mounted a third party challenge in the general election. This was an excessively lose application of the rules of primary election engagement that resulted in the escalation of the conflict between conservatives and moderates in the GOP and ultimately resulted in the GOP losing a seat in the US House of Representatives.

The rules of engagement have traditionally been that a primary election challenge is the best method to influence the direction of a political party. Using the rules of engagement of a primary election determines when, where and how force (in this case electoral) shall be used. When these rules are loosely observed (or flatly rejected), the violator abdicates legitimacy. Doug Hoffman competed for the Republican nomination, lost and subsequently sought and received the Conservative Party nomination in the general election contest and ultimately forced out the Republican nominee. Mr. Hoffman, for all intents and purposes, ran under the mantle of the Tea Party Patriots given the climate of the moment.

If the Tea Party Patriots are intent on changing the direction of the GOP (and in turn the US Congress) by engaging in Republican primary election contests then they must comply with the outcome, regardless if their candidates win or lose. To dismiss losing results by later running as third party candidates in general elections clearly implies that those running the movement and their candidates do not intend to influence the direction of the GOP but rather sabotage the GOP.  If the Tea Party's goal is to have influence on Capitol Hill then they should build their own party and allow the Republican Party and its primary voters to take their desired course without intrusion by sore losers.

If Mr. Hoffman’s performance is indicative of what is to come from the Tea Party’s directive to punish Republican incumbents then the movement is as guilty of gaming the electoral system as those they seek to condemn and punish. Such actions smack of vengeance and such vengeful intentions defile the Tea Party’s stated principles.

Political Moneyline

As the 2010 mid-term elections approach Red Elephant will begin to offer odds on incumbent re-election. In the meantime, it is worth assessing the Republican National Committee’s current leadership and whether it survives beyond January of 2011.

Michael Steele, RNC Chairman
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Mr. Steele has been too freewheeling at the helm and has made GOP leadership on the Hill anxious. While RE appreciates candor, Mr. Steele has been foolish in stating the GOP will not win back the House or Senate, saying “not this year.” Instead, Mr. Steele should be focused on promoting the gains the GOP could make in November, which it is sure to do, thus instilling optimism in donors and the rank and file. By framing expectations as he has Mr. Steele is likely to be blamed for not doing enough and jeopardizing the party’s future, resulting in likely replacement when the RNC meets in January 2011.