Thursday, January 21, 2016

Six Years Later, What We're Getting Wrong About Citizens United

As it happened, I was planning to write about campaign finance reform, prompted in part by Bernie Sanders' repeated criticisms of a "corrupt political system," when I realized that today was the sixth anniversary of the Citizens United v. FEC decision which ended the ban on corporate independent expenditures. So, I figured today was as good of a day as any to write it.

I have a number of problems with Citizens United, not the least of which is the way it was decided. The Court had, in McConnell v. FEC several years earlier, decided the precise question that it later overruled in Citizens United, after scheduling the case for reargument. The only thing that had changed between 2003 and 2010 which had any effect on the result was that Sandra Day O'Connor was no longer a Supreme Court Justice, and Samuel Alito was. 

After the D.C. Circuit struck down contribution limits to independent expenditure committees in SpeechNOW.org v. FEC, the FEC issued an advisory opinion which essentially created what we now know as "Super PACs." So, while it's true to say that Citizens United led to Super PACs, there were a couple of steps in between.

Citizens United is based on the assumption that 1) quid pro quo corruption is the only form of corruption that the government has a compelling interest in regulating or preventing; and 2) independent expenditures do not lead to corruption or the appearance of corruption. As any one who has been around politics and witnessed the lack of any meaningful enforcement of anti-coordination rules can tell you, this is a ludicrous assumption. 

The other thing Citizens United did, which unfortunately has been largely ignored by the lower courts when it comes to state law, was generally uphold the federal disclosure scheme. Sadly, given the relatively toothless nature of FEC enforcement, the prohibition on coordination is really not a prohibition at all, and the IRS' loose enforcement of the political campaign activity restriction for 501(c)(4) organizations means that some groups are evading federal disclosure rules altogether. (You'll generally hear these groups referred to as "dark money" groups).

All of this combines to give us a campaign finance system that is arguably worse than what existed before McCain-Feingold. About the only things that have survived are the ban on soft money for political parties, (though not entirely), the increased contribution limits indexed to inflation, and the disclaimer which must air on every broadcast radio or television ad. (You know the one: I'm [candidate] and I approve this message.) 

And so, it's hardly a surprise that some liberals have taken up overruling Citizens United (often said as "repeal," which would be a legislative act) as their chief cause. In the Presidential campaign, the cause has found a champion in Bernie Sanders (though Hillary Clinton has also supported overruling Citizens United). He rails against a corrupt political system and vows to end the corrupt influence of money by appointing judges who would overrule Citizens United and Buckley, and pushing for a constitutional amendment to allow for strict campaign finance regulation. He's right to be concerned about money in politics. He's wrong about the solution.

I don't mean to pick on Bernie here. His position is no different than many other Democrats. But he's a good example of what I'm afraid too many Democrats and liberals are getting wrong about Citizens United in particular and campaign finance reform more broadly. 

1. Citizens United is not the source of our campaign finance problems. It did make things considerably more difficult, but the primary effect was to cut out the middleman when it comes to corporate independent expenditures. The effect is not all that different than the soft money which McCain-Feingold tried to ban, except now the spending is in the hands of nominally independent committees, instead of the political parties. 

The worst impact of Citizens United has not been on the federal level, but on the state level, where state regulatory schemes have been gutted by federal courts which went even further and struck down mandatory disclosure laws, and by the Supreme Court in striking down a public financing scheme that included spending limits in Arizona (which in turn gutted the campaign finance limits in Nebraska, essentially leaving Nebraska with no caps on contributions or spending whatsoever). 

Which brings us to our next point: Even if Citizens United is overruled, likely through a challenge of a state law, Super PACs will not go away on their own. For one thing, Citizens United itself didn't create Super PACs, and federal campaign finance law probably won't be at issue if and when Citizens United is overruled. The FEC is probably unlikely to enforce a law that was struck down by the Supreme Court, even if the decision had been subsequently overruled. What it means is that Congress would have to actively ban Super PACs. Now, anyone want to place bets on how likely that is?

2. A common refrain from proponents of campaign finance reform is this: "money isn't speech." The problem lies in the hypocrisy of that statement. Think about how many times you have been asked by a campaign over the last year to give money. What's their pitch? Help us. Come be a part of the campaign. Bernie Sanders touts the number of small donors who give to his campaign, and calls his supporters part of a movement. Are we really going to argue that there isn't a First Amendment implication on contributions to a political campaign at all?

3. The FEC is a joke. If you follow me on Twitter, you'll know that I throw this phrase around, usually in reference to some campaign brazenly skirting rules against coordinating with Super PACs. While disclosure usually runs smoothly, enforcement is rather toothless, and the structure of the commission is a major reason why. No more than three members of the six-member body may be from the same political party. This is obviously meant to prevent partisan abuse, but in reality means that the commission is hopelessly and perpetually deadlocked on any controversial issue. The process of appointment and the hot-button nature of campaign finance reform also means that new members are rarely appointed and confirmed by the Senate. Five of the six current members of the FEC are serving expired terms. Four members were appointed by George W. Bush. Remember, we are in year eight of the Barack Obama administration.

4. We need to be very, very careful about unintended consequences. Setting aside the feasibility of a campaign finance reform amendment, I think every proponent of free speech should consider what the potential consequences of such an amendment might be. You're amending the Constitution to give the government the ability to ban speech. You can dress that argument up however you'd like, but in reality, that would be exactly what you are doing.

I know that some of this can come across as defeatist. I don't believe getting money out of politics is all that realistic. And I think Sanders' campaign structure is a pretty good example of why it might not be such a good idea to open the door wide to restrictions. He's raising a ton of money from small-dollar donors, and making a strong case for his agenda. Meanwhile, a guy who has raised comparatively little money is dominating the race for his own party's nomination because he has so much of his own that he doesn't even care about raising from other people. I'm not sure creating an environment in which the latter is incentivized would be such a good idea, either.

Sunday, January 17, 2016

I Was Wrong, and I'm Sorry: Why Donald Trump is Going to be the Republican Nominee

Late Friday night, Robert Costa of the Washington Post reported that high-dollar donors, the elites of the Republican Party who mainstream political observers had long assumed would unite against Donald Trump in an effort to save the party from itself, had instead decided upon unconditional surrender.


 The writing was on the wall after Thursday's debate. For the first time, Ted Cruz went after Donald Trump, and held his own against the Republican frontrunner, but gave Trump a massive opening to hammer him on 9/11 by renewing his line of attack on "New York Values." Cruz also didn't get a clean win on the issue of his citizenship, in large part because even acknowledging the issue elevates Trump's status even more. But it wasn't the Trump-Cruz feud that gave the signal that the debate was a "nightmare" for the establishment, or that the Republicans had "surrendered" to Donald Trump. 

It was Marco Rubio, who outside of a couple of obviously prepared moments, was an afterthought to the two top Republicans in the race. It was Chris Christie, who took every opportunity available to hammer Marco Rubio. It was Jeb! Bush, who not only failed to land any criticism of Donald Trump, let alone any other candidate on the stage, but also managed to undermine the entire Republican case against Trump as a candidate by telling the viewing audience not to take any criticism they hear in the next few weeks all that seriously.

For the longest time, people like me made some assumptions about how the Republican primary would play out, based on how it has always played out in the past. Establishment Republicans and high-dollar donors would exert considerable influence and money to destroy Donald Trump's chances to win the Republican nomination. Even during the summer when Trump's poll numbers started to rise, there was always an assumption in the back of our minds that eventually, an alternative would emerge and consolidate the anti-Trump faction of the Republican Party, who would of course be a majority. 

But one by one, every single potential alternative to Donald Trump has fallen off. Jeb!, despite a massive campaign warchest, proved to be a terrible candidate, severely outmatched against Trump in debates and possessing the weakest of field organizations among the serious candidates for the nomination. Marco Rubio has stayed exactly where he has been for most of the race: polling in the low single digits, unable to break into the top tier because the other, more conventional candidates are splitting the vote. 

In the last month, the race has crystalized as a two-man race, with Marco Rubio just outside hoping to break through as the establishment alternative. But what six months of Donald Trump's unchallenged supremacy of the Republican primary has done is numb most of the party faithful to the possibility of his nomination. As the candidates on the stage signaled multiple times Thursday night, they believe that even Donald Trump would be an acceptable nominee for the Republican Party. And without even that most basic criticism to level against Trump, what remains? Ted Cruz is betting on personal attacks. Having abandoned his bear hug strategy, and finally gone after the man dominating all polls for the Republican nomination, Cruz is banking on winning a battle of personal attacks with Donald Trump. 

Our assumptions were wrong. We were blinded by our personal bias against the candidate to recognize that, structurally, he has been the frontrunner since July. I'm not simply speaking of his polling numbers. It wouldn't matter if he lead the race for six months or one day prior to actual votes being cast. I'm speaking of the way in which he has impacted the race and driven the debate since day one. Any candidate who hopes to win the nomination has to get through Donald Trump. And so far, Donald Trump has shown himself to be impervious to the type of criticism his opponents have leveled against him. He has completely changed the discussion on immigration. One-time champion of immigration reform Marco Rubio now spends his time attacking Ted Cruz for being soft on immigration. 

Which is why this report of establishment donors attempting to cozy up to Trump is so important, and why it was the final straw which broke my belief that Donald Trump would not be the Republican Party's nominee for President. Because the final assumption was that they would unite to destroy Donald Trump, around whatever candidate could defeat him. They would recognize the existential threat a Trump nomination would pose to the Republican Party, and do whatever they could to prevent it from happening. But here, with the Iowa caucus just over two weeks away, Republican donors have signaled their intent to surrender, instead. 

All of our assumptions were wrong. Republicans believe Donald Trump is going to be the nominee, and many have decided it isn't worth fighting anymore. The only person who could conceivably stop him, at this point, is Ted Cruz, and the Republican establishment has evidently made the calculation that Trump would be better. 

I predicted many months ago that Donald Trump would not win the Republican nomination. I was wrong. I'm sorry. I badly miscalculated the Republican Party's desire to nominate the worst possible candidate.

Saturday, January 16, 2016

Why I Support Hillary Clinton For President

In 2008, I was an early supporter of Barack Obama's campaign. I knew from the moment he stepped off the stage at the 2004 convention that he would be President someday, and I was enthusiastic to help make that happen in any small way I could. I gave whatever meager contribution I could as a poor college student, canvassed and knocked doors, and caucused for him in Nebraska at a middle school where turnout was so high they had to move the whole thing outdoors.

I'm damn proud to have voted for Barack Obama, to have supported him, and even despite some of the things he was not able to accomplish, to defend his record to anyone. Barack Obama is my President. And but for the 22nd Amendment, I would gladly cast my vote for him for a third term in office.

Folks will remember that 2008 primary campaign was heated. The Clinton campaign stoked some very ugly fires and played to some terrible tendencies in order to claw back into the race after losing Iowa. They were not helped by a chief strategist who did not know the rules of the game, and felt that insulting the voters of any state where Hillary did not do well (again, largely because her campaign didn't know the rules) was the best way to win.

I knew early on in the 2008 campaign that I would not support Hillary Clinton. The biggest reason why I could not support her for the Democratic nomination was her vote on the Iraq War resolution. Though George W. Bush was not going to be on the ballot in 2008, the Iraq War was going to be his legacy, and anyone who voted for it was going to have a hard time explaining that to voters.

Obama not only had outspoken opposition to the war on his side, but a compelling and urgent message that brought a coalition of young and minority voters together. A lot has been written about how the Democrats have struggled during Obama's time in office, but I think that sells him short quite a bit. The man revitalized the Democratic Party. Barack Obama was the right man for the moment. 

And now, Hillary Clinton is the right woman to succeed him. There is no candidate who possesses the political skill and policy knowledge necessary to being a good President more than Hillary Clinton.

Amidst a lot of rhetoric about a corrupt political system and the need for a revolution, it's easy to forget that we have a Democrat in the White House, and a pretty good one at that. I don't have any particularly strong objection to Bernie Sanders, but it often seems as if he doesn't believe that Barack Obama has done a good job. He's the embodiment of every disillusioned liberal fed up with the practical realities of the American democratic system who thinks the President can simply do whatever he wants. If he were to win the nomination, he might get elected, although I wouldn't be quite so confident, but he would enter the Oval Office woefully unprepared for the work of governing. If a pragmatic idealist like Obama found a Republican Congress difficult to work with, can you imagine what the job is going to be like for a self-professed socialist? 

I could give you a laundry list of policy positions or criticisms of Sanders, but that really is beside the point. 

The single most important issue in the 2016 election is the preservation of Barack Obama's legacy.

Every single thing that Obama has accomplished during his time in office is in jeopardy of disappearing if a Republican President is sworn in on January 20, 2017. The Affordable Care Act? Gone. The CFPB? Gone. Deferred action and any real hope at immigration reform? Gone. Marriage equality? If you think a Republican is going to let a pesky Supreme Court decision keep that around, you haven't been listening. If you need a reminder of how little that matters, consider that Citizens United struck down the very same law the Supreme Court had upheld only seven years earlier. The only thing that had changed in the intervening years was the makeup of the Court. And once they set about dismantling every other thing that Obama has managed to make progress on in his two terms, they'll start working on everything dating back to the New Deal. Medicaid? Food Stamps? Gone. Medicare? Cut. Social Security? Privatized. Civil Rights Era reforms will be in jeopardy. What little remains of the Voting Rights Act will be gutted by a Supreme Court which could see as many as four new appointments in the coming years. In short, what the Democratic Party needs most of all right now is someone who can and will defend Barack Obama's legacy.

In that respect, if you had fallen asleep after the 2008 election and woken up just now, you might find the choice of Hillary Clinton as the person to pick up that mantle to be a bit odd. Given the acrimony and distrust during the 2008 primary campaign, how could we ever expect Hillary Clinton to carry on Barack Obama's legacy? Because when it mattered, Barack Obama trusted her. And in a time where the leading Republican candidate for President is Donald Trump, I trust that she not only has what it takes to beat him, but that she will provide the calm, steady leadership which is the antithesis of everything that he represents.

The moment is different. This is not a time for iconoclasts and demagogues. It is not a time to tear down what we've built and start over. It's a time to take the foundation we have and make it better. And yes, it's time for a woman to get the job. 

I'm with her.

I'm back!

Hello again! So, around ten years ago I started writing a lot about Nebraska politics while a student at UNO (Go Mavs!). I didn't really keep it up once I graduated college and started working for candidates and elected officials full time, and law school has taken over my life the last few years. But throughout that time I've still shared many, many random political thoughts (and not so political ones) on Twitter (@davesund), and with the election upcoming I wanted another outlet to share some more in-depth thoughts. So, I restarted my blog. 

Anyway, I can't promise that I'm going to post too frequently, just whenever the opportunity arises and I can spare a moment to write. Most of what I post here is going to be the sort of too-long-for-Facebook stuff I end up posting there. I'll be sharing some thoughts from here in "Obamaha" from a recovering political hack.