You probably missed it because the Supreme Court's much anticipated ruling on Obamacare overshadowed Montana's challenge to Citizens United, just a few weeks prior. On June 25, for the first time, the court permitted unlimited, anonymous spending in state and local races of any size, overriding your states' sovereignty to prevent corruption.
New York's Attorney General knew what was at stake last Spring, organizing dozens of states in protest. Though already understaffed and denied funding by Congress to shore up criminal cases against the biggest banks on Wall Street, Eric Schneiderman knew the disease of money in US politics was about to get much worse - over 50 times worse - as "Son of Citizens United" made its way to the Roberts Court.
Without media coverage, Schneiderman couldn't do much so our campaign finance integrity problem did in fact get exponentially worse.
In dismissing Montana's Supreme Court ruling without even hearing oral arguments, the SCOTUS trashed that state's 1912 anti-corruption law, expanding Citizens United fractally so it now affects every campaign in the land, down to local school board elections.
Montana urged the court to reconsider it's original ruling, compiling evidence to disprove the claim that there was no proof of corruption, or even the appearance of corruption found, when corporations fund campaigns. Montana sought to assert it's right to regulate the state and local races Citizens United never addressed when it struck down federal limits in McCain-Feingold (also known as the Bipartisan Campaign Reform Act).
With the court due to rule on the Montana challenge by the end of June, Schneiderman by late May had notified the states the court was seeking to annul many of their legal precedents, overriding longstanding state laws that prevent outside corporations from coming into a state and outspending it's people during elections.
Leading twenty one state AGs, Schneiderman submitted an amicus brief to the Supreme Court arguing that races on the state and local level are markedly different from high-profile federal elections, with a hundred years of recorded evidence to show how corporate cash has perverted outcomes from coast to coast. This reinforced the argument brought by Montana, whose history is scarred by corruption going back to merciless mineral exploitation, claim jumping and frontier justice meted out by robber barons outside Montana's borders.
Montana's Corruption Shocks America to Core
Montana's elections were so blatantly bought and owned that Mark Twain wrote in 1907 about mining monopolies openly financing the campaigns of "Copper King" William Clark:
"He is said to have bought legislatures and judges as other men buy food and raiment. By his example he has so excused and so sweetened corruption that in Montana it no longer has an offensive smell."
Clark, who also owned a newspaper is said to have offered ten thousand dollars to any state legislator to pick him in Montana's race for senator. It worked, but the US Senate refused to seat Clark because of the audacity of the bribes. Long after Clark famously retorted "I never bought a man who wasn't for sale", his example led to passage of the 17th Amendment to the US Constitution, mandating direct election by the people instead of appointment by state legislature.
Because Clark's power play was technically not illegal, Montana also passed an anti-corruption law that had protected it's election from corporate plunder until now. Now, there is no limit on corporate spending during Montana's elections, meaning out-of-state interests can again exploit state resources.
Schneiderman tried to prevent this, entering into the record a pointed rebuttal of the original January 2010 Citizens United v. FEC ruling which introduced details from the "factual, actual record".
A bipartisan block of Attorneys General from AK, CA, CT, DE, HI, ID, IL, IA, KY, MD, MA, MN, MS, NV, NM, NC, RI, UT, VT, WA, WV joined NY in questioning the majority view that First Amendment "independent expenditures including those made by corporations do not give rise to corruption nor the appearance of corruption".
Kennedy sees corporate spending as protected free speech, claiming there have not been cases that show a direct quid pro quo transaction, linking a specific payment to a singular action. Scheneiderman believes that the justices were being coy - obviously, secret donors would never put anything on the record like "here's fifty grand for that NO vote on Bill 26", but there is an abundance of evidence to prove the appearance of corruption, had Kennedy bothered to listen.
There was a substantial body of evidence showing this at the time of the ruling, with many negative consequences since, prompting former Supremes to speak out. In his dissent of the original January 2010 ruling, Justice John Paul Stevens saw the distinction then that many "corporate independent expenditures...had become essentially interchangeable with direct contributions in their capacity to generate quid pro quo arrangements."
Schneiderman notes Kennedy failed to back his explicit, game-changing claim with concrete evidence in the first place. The numbers show wealthy donors to political campaigns see bountiful "return on investment", crowding out the voice of the average citizen.
The Mere Threat of Spending
Rhose Island Senator Sheldon Whitehouse, himself a former prosecutor in public corruption cases, says the finding of fact used in the original Citizens United decision was fatally flawed - a Supreme Court justice should know that any time you grant someone a power, such as giving a corporation the ability to spend unlimited money in an election, you give them an even more convenient weapon, the capacity to threaten to spend against someone, for example with "tip of the iceberg" language.
This is a massive opportunity for corruption, an unwritten, untraceable, unpoliced power which need not even be used but merely suggested. Senator Whitehouse knows elected officials and candidates would not even need to be told what to do, they would just understand that those with money, if crossed, could now spend against them at any time, chilling their speech and guiding their actions. This not only changes our campaigns, it changes how our leaders govern 24/7, with the richer voices ever in their ear.
Even more concrete and succinct, the evidence of the appearance of corruption is proven simply by listening to the American people. Research from Harvard, Columbia and UPenn confirms that poll after poll recognizes overwhelming public perception that elections are corrupted by money. Lower courts have long used these studies to affirm the perception of corruption. So why would the Supreme Court gloss over this? Read on...
Schneiderman and The Bigger Picture
Each time Schneiderman is asked about the "slow or no" progress in his struggle to prosecute the mortgage fraud that brought the economy into the ditch, he seems to pivot to the wider, endemic electoral crisis in our system. The "legalized" fraud and sweetheart settlements are but a symptom of this bigger fight against "free speech" pay-for-play. For example, Congress refused to fund staff to investigate the economic crimes, and has been de-fanging the provisions in the Dodd-Frank financial reform bill on a daily basis. By this, Schneiderman surely means Congress is bought and we must stop it from getting worse. But nationally, few candidates beyond Elizabeth Warren are running on promises to curb the power of corporate cash.
Such is the allure and fear of the $80 million spent in the Scott Walker recall election, surely just an indication of what's to come. Now that anything goes in local races too, anyone can buy ads, billboards, junk mail, robocalls or even hour-long infomercials from any part of the country.
Schneiderman explains foreigners are permitted from donating "outside" money to campaigns because it's a former American value that any people within a state are supposed to choose their own representatives, not national enterprises. Still, the court struck down your state's right to stave off exploitation and clearly documented harm, even in judicial and law-enforcement races such as sheriffs and DAs. But why?
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