A day after receiving the Presidential Medal of Freedom, retired Justice John Paul Stevens on Wednesday night backed President Barack Obama’s suggestion during his 2010 State of the Union address that the Citizens United decision could lead to “foreign entities” bankrolling American elections.

He urged the U.S. Supreme Court to explicitly explain why the president’s words were “not true,” as Justice Samuel Alito famously mouthed on camera, breaking the justices’ usual stoic appearance during the president’s annual speech.

I was at my desk one day last spring and the Colbert staff called—“What is a PAC.  Would you be willing to explain it on the Show?”  And I’ve been doing it ever since…with the forbearance of my law partners at Caplin & Drysdale, although as one of them put it to me,  “For the first time in 30 years, my kids care what I do, because I work with Stephen Colbert’s lawyer!”

Stephen Colbert does have a knack for taking very complicated legal subjects and hours of staff discussions and research and distilling it into 4 ½ minutes of Q&A that captures the essence of the issue, and explains it in layman’s language in a humorous, captivating way.  What every Supreme Court advocate wishes for!

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We have campaign finance practices that both parties—and presidential candidates—say they dislike.  I would like to think that after this election the problems with the status quo will be overwhelmingly clear to both sides, and a consensus on a new way forward will emerge.  Unfortunately, at the moment only the first part of that sentence seems accurate—the problems are clear, but the ability to reach a consensus is not.

There is talk of a constitutional amendment. Not only would such an amendment be hard to draft, putting the interpretation right back into the hands of the Courts, but I think talk of an amendment encourages avoidance of the hard work that should be done to solve these problems. For there are legislative solutions that would be both effective, and constitutional—they just take legislative willpower. Such a reform agenda could include:

• Defining independent expenditures so that they are truly independent-of the candidates, their agents, previous staff, close family members, current vendors

• Requiring disclosure of the sources of funding of all election ads, no matter who runs them

• Reform of the FEC, so that it becomes an effective, independent, enforcement agency

• Restrictions on contributions, and fundraising, by lobbyists

• Lobbying regulation reform, as proposed by the ABA, to ensure that people who lobby or run lobbying campaigns, become registered lobbyists

• An effective public funding system, so that candidates for President and the Congress have the resources needed to campaign for office, and to run for re-election, without spending every moment of their working day thinking about fundraising rather than doing the work they were elected to do

These are not easy solutions, and I do not claim they are the only ones, or even necessarily the right ones. But the time has come that we—all of us—need to dedicate ourselves to acknowledging the problems with our campaign finance practices—and what they are doing to our governmental system—and resolve to correct them.

Right now, more than 80 percent of the money raised by superPACs has gone to pro-GOP groups. And, according to the Center for Responsive Politics, 80 percent of all the money raised by these groups has come from just 100 individuals — the wealthiest people in America. People like Texas billionaire Harold Simmons.

My bet: when it comes to protecting corporate power, the conservatives on the court will suddenly forget about states’ rights.

This is certainly an important case to watch.

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.

Twenty-two states and the District of Columbia are backing Montana in its fight to prevent the U.S. Supreme Court’s 2010 Citizens United decision from being used to strike down state laws restricting corporate campaign spending.

The states led by New York are asking the high court to preserve Montana’s state-level regulations on corporate political expenditures, according to a copy of a brief written by New York’s attorney general’s office and obtained by The Associated Press ahead of Monday’s filing.

The Supreme Court is being asked to reverse a state court’s decision to uphold the Montana law. Virginia-based American Tradition Partnership is asking the nation’s high court to rule without a hearing because the group says the state law conflicts directly with the Citizens United decision that removed the federal ban on corporate campaign spending.

The Supreme Court has blocked the Montana law until it can look at the case.

The Montana case has prompted critics to hope the court will reverse itself on the controversial Citizens United ruling. The 22 states and D.C. say the Montana law is sharply different from the federal issues in the Citizens United case, so the ruling shouldn’t apply to Montana’s or other state laws regulating corporate campaign spending.

But the states also said they would support a Supreme Court decision to reconsider portions of the Citizens United ruling either in a future case or in the Montana case, if the justices decide to take it on.

politicalprof:

So now comes the news that the owner of the Chicago Cubs has been pitched the idea of creating an anti-Obama ad campaign focusing on Jeremiah Wright — the minister at Obama’s former church who became controversial in the 2008 presidential campaign for exclaiming, “God Bless America? God Damn America!” You can read a report about it here. The notion is to spend $10 million during the Democratic convention to link Obama to Wright, concluding that Wright implanted terrible ideas about America in Obama’s brain, and thus that Obama can’t be trusted to be President as a result.

I don’t want to talk about the inherent inanity of this idea: the idea that Obama is a dangerous radical might have worked before he had been President of the United States for four years, after all, but it is unlikely to change any minds AFTER he’s been president for four years. Likewise, I don’t really want to talk about the racism embedded in this attack: others will, and the “black other” who must be controlled by whites is an old theme in American political life dating back into the slavery era (a point I have discussed before). And I don’t even want to talk about the way this issue demonstrates the outsized influence of SuperPACs in this election: really? One guy can just dump $10 million into an election and we’re okay with that? Really?

No: I want to talk about transparency. See, as disgusting as I think this plan is, I am thrilled to death that I KNOW ABOUT IT AT ALL. Just by knowing whose money it is, and what goals are behind, I can assess whether I find the message credible. I can put the ad in a context from which I can make a judgment. And that’s just wonderful.

One of the worst things about Citizens United, and about American campaign finance law more generally, is that it makes it pretty easy to hide who you are and what you want from the public at large. I can know what a person or donor wants — or at least I can guess. But what does “Americans for a great America” want? What does the “Better America” foundation want?

Alas, Citizens United and current Federal Election Commission inaction make it all too easy to hide interests behind happy labels. Who can be against a group (I just made up) called “Puppies are great!”? (Or “GET ALL THESE DAMN CAT PHOTOS OFF THE INTERNET” for that matter!?)

As a consequence, I don’t know what the people behind these groups want. I can’t make an informed judgment about them — or the candidates and causes they support.

So I’d like make a modest proposal. Eliminate all campaign contribution limits. They’re essentially a joke anyway. Instead, go for 100% transparency. If you create or give money to a SuperPAC or associated organization, you have to declare who you are. That’s all. You have to cite, by name, every donor and list the amount they gave.

That sounds like a pretty good deal to me: you get to give as much as you want. I get to know who you are.

And if you’re afraid to tell me who you are because you are giving to a cause or a candidate you are embarrassed by, well then let me offer you a piece of advice: don’t give the contribution.

Sunshine, they say, is the best disinfectant.

The Supreme Court is currently considering whether to hear a case that will enable it to correct its error in Citizens United and overrule its indefensible decision to allow unlimited corporate and other wealthy donor money to influence elections. Neither the corporate lobby nor the Senate’s top Republican are eager to see this occur, however. Both of them filed briefs in the Supreme Court yesterday urging the justices to not only reaffirm Citizens United, but to do so without even hearing argument in the case.

Neither one of these briefs are surprising. The Chamber is one of the nation’s biggest spenders on elections, and Senate Minority Leader Mitch McConnell (R-KY) has long been an opponent of campaign finance regulation. Before President Bush appointed Justice Alito, who became the fifth vote to tear down much of America’s checks on big money in politics, the seminal case upholding America’s ability to defend against such money was McConnell v. FEC. In that case, Sen. McConnell was the lead plaintiff who sued — mostly unsuccessfully — to toss out the McCain/Feingold campaign finance law.

Yet while the briefs are unsurprising, they demonstrate both the corporate lobby and the Republican Party’s commitment to keeping wealthy interest groups’ ability to buy and sell elections intact.

Members of the Congressional Progressive Caucus (CPC) voted unanimously Wednesday to endorse a declaration in support of a constitutional amendment to reverse the Supreme Court’s recent Citizens United v. FEC decision.

(Photo: movetoamend.org) The CPC, which includes 78 members, is the first Congressional caucus to officially declare support for a constitutional amendment. President Obama, two state legislatures, 1,000 elected officials, more than 150 cities and towns have already expressed support for repealing Citizens United.

The resolution approved by the Vermont Senate asks Congress to consider the request of those town votes and propose a constitutional amendment to clarify that “money is not speech and corporations are not persons under the U.S. Constitution.”

“The Vermont Senate has now added its strong voice to a grassroots movement that is growing all across the United States,” said Bernie, who has introduced the Saving American Democracy Amendment.

Next week, join Bernie in Washington, D.C. for an April 18 summit to help build momentum to reverse Citizens United.

On Friday evening, the U.S. District Court for the District of Columbia issued a ruling that could begin the process of revealing the identities of secret donors to groups connected to Karl Rove and the Koch brothers.

The court ruled in Van Hollen v. Federal Election Commission that the FEC rules that restricted campaign donor disclosure are not valid and must be changed to provide for disclosure.

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Those rules state that donors to groups spending money on “electioneering communications,” or advertisements that do not specifically call to elect or defeat a candidate, must only be disclosed if they specifically earmarked their donation to that particular expenditure. Since few, if any, donors to these groups ever earmark their donation for a specific election expense there was no disclosure.

That FEC rule came in the wake of the 2007 Supreme Court ruling in Wisconsin Right to Life v. FEC. That ruling overturned a ban, instituted by the McCain-Feingold campaign finance reform law, regarding direct corporate and union contributions to electioneering communications.

[…]

Advertisements falling under the rubric of “electioneering communications” include those run against President Barack Obama by the American Energy Alliance and Americans for Prosperity, both non-profits linked to the Koch brothers. All ads run by the U.S. Chamber of Commerce are classified as “electioneering communications.” The ruling would require for the first time that contributions to these groups, and many more, be disclosed.

Crossroads GPS, a non-profit linked to Karl Rove, has run millions of electioneering communications against Obama and Democratic senators this election cycle without disclosing any of their donors.

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Judge Amy Berman Jackson stated Friday in her ruling that, “there is no question that the regulation promulgated by the FEC directly contravenes the Congressional goal of increasing transparency and disclosure in electioneering communications.”

“In sum, the Court finds that Congress spoke plainly, that Congress did not delegate authority to the FEC to narrow the disclosure requirement through agency rulemaking, and that a change in the reach of the statute brought about by a Supreme Court ruling did not render plain language, which is broad enough to cover the new circumstances, to be ambiguous,” the ruling continued. “The agency cannot unilaterally decide to take on a quintessentially legislative function; if sound policy suggests that the statute needs tailoring in the wake of WRTL or Citizens United, it is up to Congress to do it.”

Fred Wertheimer, the president of campaign finance watchdog group Democracy 21 and another one of the lawyers representing Van Hollen, said in a statement, “Now it is the FEC’s turn to act. Democracy 21 calls on the FEC to conduct an immediate rulemaking procedure. The FEC must get new rules in place promptly to ensure that outside spenders making electioneering communications disclose the donors funding these campaign related expenditures.”

Sen. Sheldon Whitehouse (D-R.I.) and a number of his Democratic colleagues introduced a bill today that would require independent organizations that spend at least $10,000 during an election cycle to detail their major donors and expenditures.

The bill, the Disclose Act, is another post-Citizens United effort to curb the influence of hidden campaign spending, and a way for Democrats to frame themselves as the defenders of the public interest when it comes to money in politics. It has 34 cosponsors, not one of which is a Republican.

“The Supreme Court’s Citizens United decision has subjected the American people to a flood of political ads funded by anonymous donors,” Whitehouse said. “The American people deserve to know who is really behind these ads.”

Reform groups, who have been lobbying for the House version of the legislation, were quick to announce their support for Whitehouse’s bill.

“It is a cardinal principle of campaign finance laws that citizens have a basic right to know about the expenditures being made to influence their votes and the donors funding these expenditures,” the groups — including the Campaign Legal Center, Common Cause, Public Citizen and the Sunlight Foundation — said in a statement.