AMERICAN CROSSROADS CORRUPTING CAMPAIGN 2012 IN MISSOURI SENATE RACE

American Crossroads, the radical rightwing, big money, swift boating, scrutiny evading, beyond the veil of official party control, money raising arm of the Republican Party is in the business of buying elections for Republican candidates.  They are not interested in free speech.  They are masters of bought speech.

American Crossroads remind me of the pornographers of the late 1970's and early 1980's.  In response to Chief Justice Warren Burger's opinion in Miller v. California, 43 U.S. 15 (1973).  Attempting to define that which is and that which is not pornography Burger concluded a three part test with the following words.  "The First Amendment protects works which, taken as a whole, have serious literary, artistic, political, or scientific value, regardless of whether the government or a majority of the people approve of the ideas these works represent."

Pornographers began wrapping up the female porn stars in the American flag, inserted patriotic footage in their work, and attempted to diminish Burger's test by demonstrating that as a whole their smutty productions had political content.

American Crosswords has similar verbiage on their website, http://www.americancrossroads.org/mission. They say: "The mission of American Crossroads is to help crystallize the debate over these two diametrically opposed visions for America’s future, to educate voters on how these contrasting visions will shape America’s future, and to empower citizens like you to hold lawmakers and office-seekers accountable for where they stand."

They don't tell you that what they really stand for is overwhelming political campaigns with half truths and distortions, taking political discourse from engaging in serious discussions of the issues and burying Democratic candidates under an avalanche of false impressions.  The work of American Crossroads is the work of dirty politics made possible by the horrendously bad decision of the Supreme Court in Citizens United.

A few miles to the east of the Land of Oz those with long memories will remember the work of American Crossroads.  Missouri's Secretary of State, Robin Carnahan, was running for the U.S. Senate against a Republican the Citizens for Responsibility and Ethics in Washington (CREW) listed as one of the "most corrupt."  That of course in Senator Roy Blunt, who the Wall Street Journal called "Senator Earmark,"  The full CREW report on Blunt is available at http://www.crewsmostcorrupt.org/files/roy_blunt_most_corrupt.pdf. 

American Crosswords spent $2,320,394 opposing Robin Carnahan, according to the Sunlight Foundation. See, http://reporting.sunlightfoundation.com/outside-spending/2010/candidate/robin-carnahan/american-crossroads.

The ads against Carnahan were misleading accounts, according to FactCheck.org, of her positions on Health Care Reform and Medicare Reform.  See, http://www.factcheck.org/2010/10/crossroads-jam-up/.

Now comes the misleading attack on Missouri's senior United States Senator.  They want to blame the first termer for having voted for trillions of dollars in debt, backing plans to raise taxes, and handing President Obama blank checks.

According to POLITICMO  Crossroads GPS has already spent $219,000 and has pledged to spend another $240,000 through August 6th in the smear campaign against Senator McCaskill.  See, http://politicmo.com/2011/07/26/democrats-latest-crossroads-gps-ad-misleading/.  According to the Saint Louis Post-Dispatch American Crossroads, and their subsidiary Crossroads GPS, plan to spend more than $2.4 million.  See, http://www.stltoday.com/news/local/govt-and-politics/article_423c61b5-37b8-566a-a00f-ce9a1d96fcf6.html.

If American Crossroads and their Crosswords GPS were concerned about politicians who voted for trillions of dollars in debt and blank checks, and raising taxes, then how could they have ever supported the likes of Roy Blunt.  

Blunt, a/k/a Senator Earmark, was described by the Wall Street Journal as: "Mr. Blunt, who is 60, took no detours. His résumé includes his 10-year stint as a powerbroker during the party's previous House majority. He was right-hand man to former Majority Leader Tom DeLay and in his own right a powerful dispenser of patronage and influence. Mr. Blunt engineered tough votes for the 2003 prescription drug benefit and, in the last months of the Bush term, the financial bailout. He was an effective whip. To others, he epitomizes the transactional K Street politician who uses the prerogatives of office to protect incumbents—hence the nickname "Mr. Earmark."  See, http://online.wsj.com/article/SB10001424052748704353504575596591626268782.html.  Time Magazine reports that the 2003 prescription drug benefit adds $1trillion to the deficit.  Blunt forgot to get it paid and just put it on the nation's credit card.  See, http://www.time.com/time/magazine/article/0,9171,1919169,00.html.  And if TARP wasn't a blank check handed to President George W. Bush, then I don't know what a blank check is.

Of course Blunt never voted to increase taxes did he?  Well, if you followed the drama of H.R 4853 in the 111th Congress, then yes and no.  When that bill, about airports went to the Senate it got changed into renewing the Middle Class Tax Cuts. Those are the Bush-era tax cuts on the first $250,000 dollars of income on everyone.  Blunt voted no on that, voting to raise taxes on everyone.  Of course the bill went back to the Senate and the full Bush-era tax cuts were extended.  That was what Blunt voted for, adding another $4 trillion to $11 trillion+ to the deficit, depending on who you listen to and how you do the math.  That was roll call number 604 of the 111th Congress on December 12, 2010.

Of course the real reason American Crossroads d/b/a Crossroads GPS likes Blunt is because he is an avid advocate of the tax subsidies to Big Oil.  And taking the long view, American Crossroads knows that when enough Representatives and Senators owe the vitality of their political careers to them they will control the levers of patronage, graft, and extract unthinkable favors from thoughtless salons like Roy Blunt.

Imagine what the Missouri Senatorial campaign will look like when the Republicans find a candidate for 2012.

H.R. 359, REPUBLICANS WANT TO END PUBLIC FINANCING OF PRESIDENTIAL ELECTIONS AND NOT RETURN THE MONEY

H.R. 359 is a prime example of where the Republican controlled 112th Congress wants to cut spending. This is a bill with a long title, it is called the "To reduce Federal spending and the deficit by terminating taxpayer financing of presidential election campaigns and party conventions" bill.

By golly that's right, let's cut federal spending, especially when that spending comes from the taxpayers, and is earmarked by the taxpayers to be used for the specific purpose of financing Presidential Elections.  In the wake of the Supreme Court's terrible decision in Citizens United and the tsunami of dark money in last year's election, why allow the bulwark protecting Presidential Elections to stand?  Republicans know they can get tons of cash from persons who don't have to identify themselves to flood the 2012 Presidential Election.

Public financing of Presidential Elections doesn't come from the general fund. This money comes from ordinary taxpayers who mark a box at the end of their IRS tax form saying they want to contribute a dollar to this fund. It's called the taxpayer checkoff.

You can read the brochure the Federal Elections Commission has printed to explain how Public Funding of Presidential Elections works at: http://www.fec.gov/pages/brochures/pubfund.shtml#anchor688095. The brochure explains:

To qualify for public funding, Presidential candidates and party convention committees must first meet various eligibility requirements, such as agreeing to limit campaign spending to a specified amount. Once the Federal Election Commission determines that eligibility requirements have been met, it certifies the amount of public funds to which the candidate or convention committee is entitled. The U.S. Treasury then makes the actual payments from the Presidential Election Campaign Fund. This fund consists of dollars voluntarily checked off by taxpayers on their federal income tax returns. (In 1993, the taxpayer checkoff was increased from $1 to $3. Public Law 103-66) The checkoff neither increases the amount of taxes owed nor decreases any refund due for the tax year in which the checkoff is made. [Emphasis Added.]

H.R. 359 is the first bill emerging from the House Rules Committee that deals with the 112th Congress' Republican pledge to cut spending. But don't they have it backwards? Didn't the people vote to have this Congress cut Congressional spending instead of cutting off the voluntary dollars of American citizens being spent at the express direction of the American people?

H.R. 359 amounts to larceny. The bill, introduced by Oklahoma Republican Tom Cole, with 18 cosponsors, wants to pillage the hard earned dollars Americans put into this fund. Rather than do the accounting necessary to return the unspent money to the American people, this band of thieves wants to steal the money and put it into the general fund. The bill directs that "The Secretary shall transfer all amounts in the fund after the date of the enactment of this section to the general fund of the Treasury." So everyone who voluntarily gave a dollar to keep the Presidential Election free from the undue influence of special interest money gets taxed by these Republicans.

The Republicans are shadow boxing with the issue of cutting governmental spending. They can't do it. Congress and the Administration will have to work together to make the hard choices on reducing the government's budget. Knee jerk solutions like H.R. 359 will not get the job done.

It's time to end the shadow boxing and knee jerking. It's time for the 112th Congress to put up or shut up.

THE NOTION THAT "INDEPENDENT EXPENDITURE" GROUPS DON'T HAVE TO DISCLOSE THEIR DONORS IS PURE FICTION

The Sunlight Foundation's REPORTING GROUP is reporting that "Dark Money" groups spent $110,000,000 in 168 races during the 2010 election. http://reporting.sunlightfoundation.com/2010/dark-money-donors/.

 "Dark Money" is the new term of art for funds spent by independent expenditure groups following the Supreme Court's decision in Citizens United v. Federal Elections Commission and Court of Appeals decision relying on Citizens United, Keating v. Federal Elections Commission. The Keating case is known as the Speech Now case, even though SpeechNow.Org was not a party to the en banc proceedings before the Federal Court of Appeals for the D.C. Circuit.

That case went to the Supreme Court for a Writ of Certiorari. The Supreme Court denied the petition letting the judgment of the Court of Appeals stand.

The yet-to-be-certified victor in Illinois is Republican Mark Kirk. Kirk got the benefit of $4.4 million in dark money directed at his Democratic opponent Alexander Giannoulias.

In the State of Washington incumbent Democratic Senator stood up against an onslaught of Karl Rove' Crossroads GPS independent expenditures of $3.5 million.

The California Senate race between Democratic incumbent Barbara Boxer and Republican challenger Carly Fiorina saw an influx of $5.61 million in dark money. The U.S. Chamber of Commerce, through various dark money groups, spent $4.6 million in the California race, according to REPORTING GROUP.

Consensus says that most of these groups don't have to report. I am not certain where that whacky notion originated, but it is clearly wrong.

The question presented to the Supreme Court in  Speech Now was:

 "[w]hether, under the Free Speech Clause of the First Amendment, the federal government may require an unincorporated association that makes only independent expenditures to register and report as a political committee despite the fact that a more narrowly tailored means of disclosing its independent expenditures exists in 2 U.S.C. § 434(c)."

See, Brief for Petitioners at http://www.fec.gov/law/litigation/sn_sc_sn_writ_certiorari.pdf.

Respondent's brief in opposition similarly phrased the question as:

"[w]hether the en banc court of appeals correctly held that the reporting, organizational, and administrative requirements of the Federal Election Campaign Act of 1971, 2 U.S.C. 431 et seq., are constitutional as applied to the treasurer of a group whose major purpose is the making of independent expenditures to elect or defeat clearly identified federal candidates."

See Brief for Respondent in Opposition at http://www.fec.gov/law/litigation/sn_sc_fec_brief_in_opposition.pdf.

It looks like the independent expenditure groups assumed they would get relief from the Supreme Court and ran amuck with dark money. There may be consequences.

The Federal Elections Commission did a poor job of rulemaking to clarify what needed to be done for the independent expenditure groups. Clear lines were not drawn to keep independent expenditure groups from running afoul of FECA, the Federal Election Campaign Act. Independent expenditure groups still had adequate notice to report, in one of two forms, who gave all that dark money.

Instead the FEC issued a couple of advisory opinions rather than go into full rulemaking mode. The FEC dropped the ball and dark money has run through Campaign 2010 like raw sewage flowing into the nation's waterways.

FEC Advisory Opinion 2010-09 dealt with a request by the Club for Growth, which asked for opinions on three separate issues. The drafts of their opinions are at line at the FEC web portal. You have to read the footnotes. In answering one of the Club for Growth's questions they hit the nail on the head. 

Footnote One reads "The Commission notes that this advisory opinion implicates issues that will be the subject of forthcoming rulemakings in light of the Citizens United, EMILY's List, and SpeechNow decisions. The results of that rulemaking may require the Commission to update its registration and reporting forms to facilitate public disclosure. In the meantime, the Committee may include a letter with its Form 1 Statement of Organization clarifying that it intends to accept unlimited contributions for the purpose of making independent expenditures. See Attachment A. Electronic filers may include such a letter as a Form 99. 2 currently, the President of the Club serves as Treasurer of Club PAC. Statement of Organization, Club for Growth PAC (Apr. 14,2009), available at: http://www.fec.gov/ (last visited luI. 16,2010) ."

Footnote One says the FEC will most likely have to engage in full rulemaking. Believe me, they need to get in gear on this rulemaking.

Footnote Ten reads "The court also upheld the Act's "organizational and reporting requirements" as applied to SpeechNow.org. Upon meeting the applicable thresholds, the group would be required to register with the Commission as a political committee and abide by the disclosure and reporting requirements applicable to political committees. SpeechNow, 599 F.3d at 696-98."

But hold on for the wrinkle in Footnote Eleven, which reads "On May 27, 2010, in compliance with the D.C. Circuit's opinion, the United States District Court of the District of Columbia issued an order that the Act's contribution limits (2 U.S.C. 441 a(a)(1 )(C) and 441 a(a)(3)) and implementing regulations could not be constitutionally applied against SpeechNow.org or those who contribute to it. On June 11,2010, the Commission filed a Motion to Alter or Amend the Judgment to reflect that the organizational, administrative, and reporting provisions of the Act are constitutional as applied to the plaintiffs. The Commission's motion remains pending. These, as well as other documents related to the SpeechNow litigation, are available at www.fec.gov/law/litigation/speechnow.shtml. The Solicitor General is not petitioning the Supreme Court to review the court's decision, but SpeechNow.org has requested and received an extension of time to file a Petition for a Writ of Certiorari on the questions addressing registration, disclosure, and reporting." (Emphasis Added).

Footnote Ten says hold on the District Court's Order only spoke to the issues the Court of Appeals said didn't pass Constitutional muster. There's more, the Court of Appeals said the reporting requirements did not violate the Constitution. On March 26th the District Court amended its order and said " there is no constitutional infirmity in the application of the organizational, administrative and reporting requirements set forth in certified questions 4 and 5."

So what did the United States Court of Appeals for the District of Columbia say? Here it is.

SpeechNow, as we have said, intends to comply with the disclosure requirements applicable to those who make independent expenditures but are not organized as political committees. Those disclosure requirements include, for example, reporting much of the same data on contributors that is required of political committees, 2 U.S.C. § 434(c); information about each independent expenditure, such as which candidate the expenditure supports or opposes, id.; reporting within 24 hours expenditures of $1000 or more made in the twenty days before an election, § 434(g)(1); and reporting within 48 hours any expenditures or contracts for expenditures of $10,000 or more made at any other time, § 434(g)(2). 19 Because SpeechNow intends only to make independent expenditures, the additional reporting requirements that the FEC would impose on SpeechNow if it were a political committee are minimal. Indeed, at oral argument, plaintiffs conceded that “the reporting is not really going to impose an additional burden” on SpeechNow. Oral Arg. Tr. at 14 (“Judge Sentelle: So, just calling you a [PAC] and not making you do anything except the reporting is not really going to impose an additional burden on you right? . . . Mr. Simpson: I think that’s true. Yes.”). Nor do the organizational requirements that SpeechNow protests, such as designating a treasurer and retaining records, impose much of an additional burden upon SpeechNow, especially given the relative simplicity with which SpeechNow intends to operate. Neither can SpeechNow claim to be burdened by the requirement to organize as a political committee as soon as it receives $1000, as required by the definition of “political committee,” 2 U.S.C. § 431(4), 431(8), rather than waiting until it expends $1000. Plaintiffs argue that such a requirement forces SpeechNow to comply with the burdens of political committees without knowing if it is going to have enough money to make its independent expenditures. This is a specious interpretation of the facts before us. As the district court found, SpeechNow already has $121,700 in planned contributions from plaintiffs alone, with dozens more individuals claiming to want to donate. SpeechNow can hardly compare itself to “ad hoc groups that want to create themselves on the spur of the moment,” as plaintiffs attempted at oral argument. Oral Arg. Tr. at 17. In addition, plaintiffs concede that in practice the burden is substantially the same to any group whether the FEC imposes reporting requirements at the point of the money’s receipt or at the point of its expenditure. Oral Arg. Tr. at 15-16. A group raising money for political speech will, we presume, always hope to raise enough to make it worthwhile to spend it. Therefore, groups would need to collect and keep the necessary data on contributions even before an expenditure is made; it makes little difference to the burden of compliance when the group must comply as long as it anticipates complying at some point. We cannot hold that the organizational and reporting requirements are unconstitutional. If SpeechNow were not a political committee, it would not have to report contributions made exclusively for administrative expenses. See 2 U.S.C. § 434(c)(2)(C) (requiring only the reporting of contributions “made for the purpose of furthering an independent expenditure”). But the public has an interest in knowing who is speaking about a candidate and who is funding that speech, no matter whether the contributions were made towards administrative expenses or independent expenditures. Further, requiring disclosure of such information deters and helps expose violations of other campaign finance restrictions, such as those barring contributions from foreign corporations or individuals. These are sufficiently important governmental interests to justify requiring SpeechNow to organize and report to the FEC as a political committee.

We therefore answer the last two certified questions in the negative. The FEC may constitutionally require SpeechNow to comply with 2 U.S.C. §§ 432, 433, and 434(a), and it may require SpeechNow to start complying with those requirements as soon as it becomes a political committee under the current definition of § 31(4).

Conclusion

We conclude that the contribution limits set forth in certified questions 1, 2, and 3 cannot be constitutionally applied against SpeechNow and the individual plaintiffs. We further conclude that there is no constitutional infirmity in the application of the organizational, administrative, and reporting requirements set forth in certified questions 4 and 5. We further conclude that because of our decision today, as guided by Citizens United, which intervened since the entry of the district court’s denial of plaintiffs’ petition for injunctive relief, the district court’s order denying injunctive relief is vacated and remanded for further proceedings consistent with our decision.

So ordered.

The matter returned to the United States District Court for the District of Columbia which entered an order enforcing the judgment of the Court of Appeals.

The notion that independent expenditure groups are not or were not subject to the reporting requirements of 2 U.S.C. §§ 432, 433, and 434 is pure fiction. 2 U.S.C. § 434 (c) (2) (c) pertains to individuals making independent expenditures and says the identity of each person making a contribution of $200 or more must be disclosed. 2 U.S.C. § 434 (b) (3) (A) makes a similar disclosure requirement. 2 U.S.C. § 434 (f) (2) (E) require identification of all persons contributing $1,000 or more to segregated accounts used for electioneering. 2 U.S.C. § 434 (f) (2) (E) makes similar requirements for funds which were not segregated.

The U.S. Chamber of Commerce is among groups who infused the dark money into Campaign 2010. The Chamber is a 26 U.S.C. §501 C (6) business league organization. That means it is tax exempt. 26 U.S.C. §527 (f) (3) requires the Chamber to have segregated its membership dues from any political activities. Reporting during Campaign 2010 indicated that was not the case. The Chamber may face penalties, perhaps a revocation of their tax exempt status?

The FEC, the IRS, and the FBI must immediately begin investigations and audits of those who polluted the campaign process with this dark money.  Above all else, the FEC needs to go into full rulemaking mode to prevent anymore toxic dark money from polluting the waters of American politics.

THE PROGENY OF CITIZENS UNITED: SPEECHNOW.ORG v. FEDERAL ELECTIONS COMMISSION, SUPER PACs, and FECA

The 2010 midterm elections brings unprecedented amounts of special interest money into the political arena. American voters are being persuaded by a barrage of advertisements, often stating incorrect or misleading facts, paid for by groups that are now known as SUPER PACs.

The Center for Responsive Politics' OpenSecrets.Org reports these SUPER PACs are both liberal and conservative. The top two groups are the conservative American Crossroads, having shelled out $17,467,291 and the liberal America's Families First Action Fund, doling out $4,843,604. That's more than a $12 million gap between first and second! The full list of SUPER PACs can be found at: http://www.opensecrets.org/pacs/superpacs.php?cycle=2010.

These SUPER PACs came into being after SpeechNow.Org v. FEC. The SpeechNow decision is first case to be decided under the precedent of Citizens United.

The plaintiffs, SpeechNow, sought relief from the Federal District Court in the District of Columbia. They want to engage in express advocacy, supporting candidates for federal office who share their views on First Amendment rights of free speech and freedom to assemble. The Federal Elections Commission (FEC) issued a draft opinion requiring SpeechNow to register as a Political Action Committee (PAC). This registration is required under the Federal Elections Campaign Act (FECA) according to the FEC.

SpeechNow sued under 2 U.S.C. §437(h) of FECA, allowing them to challenge the constitutionality of any FECA provision. The District Court properly certified the constitutional questions directly to the Federal Court of Appeals for the D.C. Circuit. The appellate court took the matter for en banc consideration, that is all of the judges on the Federal Court of Appeals for the D.C. Circuit heard the case.

During the pendency of the case before the appellate court the United States Supreme Court issued its ruling in the matter of Citizens United v, FEC. That case resolved the issues for the appellate court in SpeechNow.

The Federal Court of Appeals for the D.C. Circuit held that the contribution limits of 2 U.S.C. § 441a(a)(1)(C) and 441a(a)(3) are unconstitutional as applied to individuals’ contributions to SpeechNow.

2 U.S.C. § 441a(a)(1)(C) and 441a(a)(3) are provisions of FECA. 2 U.S.C. § 441a(a)(1)(C) was the statute applicable for dollar limits on contributions "to any other political committee (other than a committee described in subparagraph (D)) in any calendar year which, in the aggregate, exceed $5,000," so it was the $5,000 limit.

2 U.S.C. § 441a(a)(3) was the statute applicable for dollar limits on contributions "During the period which begins on January 1 of an odd-numbered year and ends on December 31 of the next even-numbered year, no individual may make contributions aggregating more than— (A) $37,500, in the case of contributions to candidates and the authorized committees of candidates; (B) $57,500, in the case of any other contributions, of which not more than $37,500 may be attributable to contributions to political committees which are not political committees of national political parties."

Thus the lid is lifted for America's most wealthy to throw their monetary weight around. Is it no wonder Republicans oppose ending the Bush-era tax cuts for the top 2 per cent of Americans?

The Federal Court of Appeals for the D.C, Circuit went on to rule that the reporting requirements of 2 U.S.C. §§ 432, 433, and 434(a) and the organizational requirements of 2 U.S.C. § 431(4) and 431(8) can constitutionally be applied to SpeechNow.

Section 432 pertains to the organization of political committees. This section requires each PAC to have a treasurer, to keep an accounting of the funds raised and to segregate those monies from the individual account of any person, and to engage in certain recordkeeping and reporting requirements. SUPERPACS must still have a treasurer, keep money in segregated accounts, and following recordkeeping and reporting requirements.

Section 433 pertains to disclosure in the registration of political committees. This section details the steps the political committee must take to register, show the segregation of monies, lists the requirements of the statements, and details how the political committee can terminate.

Section 434 pertains to reporting requirements. This section says that reports of contributions and disbursements must be made at certain times. When, under this section, a political committee's contributions reach $100,000 then these reports must be made on a monthly basis. The reporting requirements under this section may succinctly be described as being rigorous.

Section 431(4) defines a political committee as a) a committee that either receives or disburses more than $1,000 a year; b) the segregated accounts established by this section; or c) any local committee of a political party raising or spending more than $5,000.

Section 431(8) defines contributions. This section is representative of what Americans think about loopholes. You should read it for yourself. It says, in detail, what is and what is not a contribution. For instance consider this subsection of the statute:

any loan of money by a State bank, a federally chartered depository institution, or a depository institution the deposits or accounts of which are insured by the Federal Deposit Insurance Corporation, Federal Savings and Loan Insurance Corporation, or the National Credit Union Administration, other than any overdraft made with respect to a checking or savings account, made in accordance with applicable law and in the ordinary course of business, but such loan—

(I) shall be considered a loan by each endorser or guarantor, in that proportion of the unpaid balance that each endorser or guarantor bears to the total number of endorsers or guarantors;

(II) shall be made on a basis which assures repayment, evidenced by a written instrument, and subject to a due date or amortization schedule; and

(III) shall bear the usual and customary interest rate of the lending institution;

Do you think a loan, as described above, with the money going to a candidate, is a contribution or not? It is not.

Back to the Center for Responsive Politics who list the SUPERPACS. Go to their site: http://www.opensecrets.org/pacs/superpacs.php?cycle=2010. Click on American Crossroads. When that page comes up click on "Donors" and the page will tell you that this SUPERPAC that no individual donors gave more than $200 during this campaign cycle. Then click the tab for "Recipients" and the page will tell you that did not make any contributions in excess of $200 for this campaign cycle. The data for American Crossroads does not appear to be unique in its deficiency. The America's Families First Action Fund yielded even less data than did American Crossroads.

To be fair the American Crossroads data disclosed independent expenditures within the past two weeks.

The law to which SUPERPACs are subject requires reporting the identity of persons giving more than $200. 

The appellate court in SpeechNow made these observations:

SpeechNow would be required to, among other things: appoint a treasurer, § 432(a); maintain a separately designated bank account, § 432(b), 432(h); keep records for three years that include the name and address of any person who makes a contribution in excess of $50, § 432(c)(1)-(2), 432(d); keep records for three years that include the date, amount, and purpose of any disbursement and the name and address of the recipient, § 432(c)(5), 432(d); register with the FEC within ten days of becoming a political committee, § 433(a); file with the FEC quarterly or monthly reports during the calendar year of a general election detailing cash on hand, total contributions, the identification of each person who contributes an annual aggregate amount of more than $200, independent expenditures, donations to other political committees, any other disbursements, and any outstanding debts or obligations, § 434(a)(4), 434(b); file a pre-election report and a post-election report detailing the same, id.; file semiannual or monthly reports with the same information during years without a general election, id.; and file a written statement in order to terminate the committee, § 433(d).(emphasis added)

The bottom line is that it appears that SUPERPACS are not making reports of contributors as required by FECA.

SpeechNow.Org petitioned the United States Supreme Court for a Writ of Certiorari.  The question presented to the court is The question presented is "whether, under the Free Speech Clause of the First Amendment, the federal government may require an unincorporated association that makes only independent expenditures to register and report as a political committee despite the fact that a more narrowly tailored means of disclosing its independent expenditures exists in 2 U.S.C. § 434(c)."

2 U.S.C. § 434(c)says:

(C) Notification of disposal of excess contributions.— In the next regularly scheduled report after the date of the election for which a candidate seeks nomination for election to, or election to, Federal office, the candidate or the candidate’s authorized committee shall submit to the Commission a report indicating the source and amount of any excess contributions (as determined under paragraph (1) of section 441a (i) of this title) and the manner in which the candidate or the candidate’s authorized committee used such funds.

What the SUPER PACs are doing is ignoring the decision of the Federal Court of Appeals for the District of D.C. and pretending that they have already won their appeal in the Supreme Court.  What they want is the capacity to raise large amounts of money for the purpose of influencing American elections without disclosing the source of those funds.  No application for a Stay of the orders below pursuant to S.Ct. Rule 23 appear in the Court's file: http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/10-145.htm


The briefs have been distributed for Conference beginning in five days.  Thereafter we will know if the Court will grant the petition for certirorari.

THE CASE AGAINST LYNN JENKINS CHAPTER 44 - SHE VOTES AGAINST DUTIES AGAINST ARTIFICIALLY INFLATED CHINESE PRODUCTS COSTING AMERICAN JOBS

This is Lynn Jenkins, she does not represent us

China has been propping up its currency. Lynn Jenkins apparently thinks that is okay. What are the effects of China's currency policies? First a little detail about Chinese money. The Chinese yuan is like the British pound, it is the unit of accounting. The Chinese renminbi is like the British sterling, it is the unit of currency.

According to the International Monetary Fund, China's exchange rate policy contributes to large trade deficits in the United States. The overvalued Chinese currency has a negative impact on economic growth and job creation. The Chinese are placing a drag on international trade policies, making it more difficult for countries to import and export goods. The overvalued Chinese yuan depresses interest rates and may be a contributing, if not exacerbating, factor in the recent global economic crisis. The Chinese policy distorts investment patterns as China looks for overseas investments of accumulated American dollars to keep the renminbi undervalued.

One economist, Peter Morici, formerly the chief economist of the International Trade Commission, said the U.S. trade deficit with China will reduce American Gross Domestic Product (GDP) by more than $400 billion.

The 2008 Nobel Prize winner in Economics, Paul Krugman, estimates that China's exchange rate policy reduces American GDP by 1.4 to 1.5 percentage points each year and equals 1.4 to 1.5 million fewer American jobs each year.

The budgetary implications of H.R. 2378 estimate that this bill will produce $125 million in revenue, from increased customs duties, for the period of fiscal years 2011 - 2020, while costing $41 million for salaries, expenses, & benefits for additional staff. The bill does not trigger the Unfunded Mandates Reform Act. The pay-go considerations show the bill increases revenues and does not involve direct spending .

Although discussions have been held on this topic with China, they refuse to budge from their position.

So what part of Chinese monetary policy does Lynn Jenkins favor? Does she like the cheap lead laden toys dumped on our kids? Does she like America being a debtor nation to China? Does she favor Chinese people working rather than American people working?

To summarize China's monetary policy gives the United States large trade deficits which means it is costing us more money than it is worth to do business with China; economic growth and job creation are stunted; international trade is negatively impacted restricting the flow of goods between nations; Chinese monetary policy made the global economic crisis worse; China is investing American dollars to keep the Chinese renminbi artificially cheap.

So what to do? The House of Representatives has answered with H.R. 2378, the Currency Reform for Fair Trade Act, which contains sections amending Title VII of the Tariff Act of 1930 to clarify that countervailing duties may be imposed to address subsidies relating to a fundamentally undervalued currency.

What could keep a fiscally responsible incumbent Republican Representative to Congress from voting for H.R. 2378? Maybe it is the Chamber of Congress' China Connection.

The U.S. Chamber of Congress endorsed Lynn Jenkins' candidacy on June 29th.

The problem with the Chamber's endorsement is that the Chamber lobbied for TARP and the American Recovery and Reinvestment Act, as that legislation was necessary to keep Chamber members on life support until the most critical part of the economic crisis passed. Lynn Jenkins is opposed to the Stimulus, and the TARP predates her tenure in the House.

The other huge problem with the Chamber's endorsement is that MSNBC and other sources were reporting last night that Chamber membership is now open to foreign corporations. Those corporations are sending their checks directly into the same Chamber of Commerce checking account the Chamber uses to pay for attack ads against Democratic candidates.

Remember when Associate Justice Sam Alito retorted to President Obama's remark that the decision in Citizen's United would not permit foreign corporations from influencing American elections? Well here it is. The Chamber of Commerce needs to be investigated by the Department of Justice for being a front for Chinese, Indian, and other foreign corporations attempting to buy influence in American politics.

The Republicans are voting to keep tax credits that encourage shipping American jobs offshore. The Republicans are voting to keep the import duties down on Chinese products, costing America direct revenues from customs and duties, costing America at least $400 billion in GDP, and costing America close to a 1,500,000 American jobs each year.

Ironically, Lynn Jenkins claims she should be reelected because she has been fighting for jobs. Well, she voted against American jobs when she voted against H.R. 2378, roll call 554. She voted against keeping American jobs in America when she voted closing tax loopholes that let American jobs get shipped overseas, that was H.R. 1586 the FAA Air Transportation Modernization and Safety Improvement Act of 2010. Some record!

THE CASE AGAINST LYNN JENKINS CHAPTER 18 - SHE VOTES TO MAINTAIN CORPORATE MONEY'S CORRUPTING INFLUENCE IN ELECTIONS.

Twice before this blog has written about H.R. 5175 the DISCLOSE ACT. First on May 26th in a blog about the case of Citizens United v. Federal Elections Commission. Next, on June 4th in a blog about Judicial Review and this bill.

H.R. 5175, known as the DISCLOSE Act, (Democracy Is Strengthened by Casting Light on Elections Act). The issue here is simple. Does Lynn Jenkins stand for the people or Corporate wealth? She stands for those fat cats she's been voting to protect since she got to Congress. Lynn Jenkins voted against real people and for the fiction of the Corporation as a person on roll call 391.

H.R. 5175 - THE DISCLOSE ACT & JUDICIAL REVIEW

Representative Chris Van Hollen

The House is moving toward consideration of H.R. 5175, the Democracy is Strengthened by Casting Light on Spending in Elections Act (DISCLOSE),  I expect the Rule Committee will resume its work to bring the bill to the floor after the break. The bill was placed on the Union Calendar, a separate calendar in the House for bills dealing with money issues, on May 25th.

H.R. 5175 was introduced by Representative Chris Van Hollen, [D] Md. Senator Charles Schumer [D] NY has introduced related legislation in the Senate, S.3295.

For a synopsis of the bill refer back to this blog's posting on May 26th, H.R. 5175, CONGRESS ANSWERS THE SUPREME COURT'S DECISION IN "CITIZENS UNITED."

Today I want to focus on Section 401 of the proposed DISCLOSE Act. This is the section where the Congress confers tells us where and how we can sue if we don't like the legislation. Remember the posting about Hui v. Casteneda? Okay, that was yesterday's post! In that case the Supreme Court ruled that Hui had immunity from prosecution by Casteneda on the alleged charges in the civil case, as those questions were presented to the Court. Hui won because the Congress limited jurisdiction to sue. H.R. 5175 has a similar clause but limiting venue, where a case may be brought.

Section 401(a) (1) contains special rules for lawsuits brought on Constitutional grounds. First, original jurisdiction is conferred on the Federal District Court for the District of Columbia Circuit. By implication, then, appellate jurisdiction will lay with the Court of Appeals for the District of Columbia.

Thinking back to the Hui case, you will remember that the Supreme Court granted certiorari to resolve a dispute between the Ninth Circuit Court of Appeals and the Second Circuit Court of Appeals. Section 401 forecloses the possibility that the Supreme Court will take a Constitutional challenge because of a dispute between different districts of the Courts of Appeal.

A copy of any complaint filed under Section 401 (a) (1) must under Section (a) (2) be delivered to the Clerk of the House of Representatives and the Secretary of the Senate. This is delivery, not service. The distinction being that the law will require the House and the Senate to be given notice of the suit, Service is made upon litigants to the dispute. This section anticipates that the House or the Senate may want to intervene in either the trial proceedings in the Federal District Court or the appellate proceedings in a proceeding in the Federal Court of Appeals.

Section 401 (a) (3) provides for expedited proceedings. Under this section the courts must act with dispatch. The section says: "It shall be the duty of the United States District Court for the District of Columbia, the Court of Appeals for the District of Columbia Circuit, and the Supreme Court of the United States to advance on the docket and to expedite to the greatest possible extent the disposition of the action and appeal."

The possibility of delay could mean either that those who have a right to voice their opinions through massive monetary infusions in the electoral process will be denied. The opposite is also true. Delay could mean that money will continue to gush, thanks to Citizens United, and pollute the American electoral process. The Congress recognizes that these disputes need to be quickly resolved.

Section 401 (b) speaks to the issue of the Congress intervening in a case involving a Constitutional challenge to this statute. Each and every Member of Congress, including Delegates and Resident Commissioners, as well as each and every Senator will have standing to sue by intervention. It does not matter if a Representative or Senator wants to sue in support of or in opposition of the party who filed the suit. The individual Representatives or Senators can take adverse sides in the suit.

For judicial economy the courts may make rules providing those with similar positions to file joint papers or be represented by a single attorney at oral argument. The sheer number of both houses of the Congress make this a sensible provision.

Any Member of Congress, House or Senate, may bring suit to challenge the constitutionality of the DISCLOSE Act. Those lawsuits must also comply with the special rules set forth in Section 101 (a). There will be no special treatment or exceptions for Representatives and Senators.

H.R. 5175, CONGRESS ANSWERS THE SUPREME COURT'S DECISION IN "CITIZENS UNITED"

This past January the Supreme Court overruled Austin v. Michigan Chamber of Commerce, and partially overruled McConnell v, Federal Election Commission with its decision in Citizens United v. Federal Elections Commission.

That decision opened the flood gates for corporate money to pollute the American political process. H.R. 5175 - the Democracy is Strengthened by Casting Light on Spending in Elections (DISCLOSE) Act, is poised at the Rules Committee on its way to a floor vote. H.R. 5175 was sponsored by Maryland Democrat Chris Van Hollen, with 114 cosponsers.

Justice Kennedy

Much of what Justice Kennedy said in his majority opinion in Citizen's United makes sense to me. I love the First Amendment. I am a strong advocate for free speech. I accept the proposition that in elections, more speech is always better than less speech. The problem I have with Citizen's United is the legal fiction of a corporation being a "person" and entitled to speak on electoral matters.

Corporations don't have a soul to save or a butt to kick, all you can do is hit them in the pocketbook. Corporations seem to be a lot like Missouri's Mules. In order to get their attention you have to whack them in the head, or that other end.

The catastrophe continuing to unfold in the Gulf of Mexico is a perfect example of why Citizen's United doesn't make sense. The cozy relationship between bureaucrats and the Oil Industry ended up with an unsafe well being drilled. Now shall we let British Petroleum, Halliburton, and other energy conglomerates buy a Congress, or a Congress and a White House? The cost of purchasing politicians is less expensive than drilling safely, or really paying all the extended costs of this crisis.

H.R. 5175 tries to salvage the Federal Campaign Act of 1971. It makes a determined effort. Under the bill government contractors will be prohibited from making campaign contributions in federal elections. Foreign corporations are also banned from making contributions. Campaign finance disclosures are tightened by H.R. 5175. The bill clarifies, using the "reasonable person" standard, of a clearly identifiable candidate.

Rachel Maddow

In a Rachel Maddow like "Moment of Geek", the bill requires that persons required to file a report after making a campaign contribution are then required to "electronically file" reports after making subsequent contributions. The bill presumes that the "internets" are working. Or maybe the Congress is privy to some new technology, perhaps an "FEC REPORT AP" for your smart phone? Well the reports have to be "searchable, sortable, and downloadable." I can just feel the famous Maddow glee!

The bill is technical. It is a primer for the FEC to study and employ in the wake of Citizen's United, It just isn't enough for me. It will still be challenged because of the dopey rule that corporations are persons. That's hogwash!

My idea is to amend the Constitution saying that only registered voters can make campaign donations, of any nature, to candidates for federal office. Only corporations whose primary business is the "news business" may make endorsements for candidates in federal elections.

The only people who should have a voice in campaigns and elections will be registered voters with skin in the game. No Unions, no Chambers of Commerce, No associations of lawyers, doctors or Indian Chiefs, no hospitals or insurance companies, no churches, temples or synagogues, neither bowling leagues, taverns, or civic organizations. And, Mr. Justice Kennedy, no PACs.

Justice Kennedy displayed a rare disconnect with reality and the magnitude of influence created by corporate cash in his obiter dictum in Citizen's United. Kennedy noted that out of the millions of corporations only about 2000 had trekked the arduous path to set up a PAC. Mr. Justice Kennedy! Get real! Only the wealthiest corporations set up PACs. Kennedy has blindly compared Fortune 500 corporations to your janitor's closely held family corporation. Kennedy clearly mixed his applesauce in with his chicken manure, yuck!

The Senate version of this bill is S. 3295.