In 2002, while working a polling site in Selma, Alabama, during a state senate race, I remember vividly how proud I felt to be participating in our democratic process. Being in the very city where the value of voting and the right to vote was literally beaten into the consciousness of the American people, had a profound and lasting impact on me.
The right of citizens to vote is not to be taken lightly; it is an essential right and is the highest form of exercising civic responsibility. It is what we are supposed to do as citizens of this country, and being in Selma reinforced that view for me. In spite of or because of the many people that engaged in invaluable efforts – and sometimes paid with their lives – to ensure that all Americans could vote, it is our responsibility to participate in this process.
For much of the first decade of the 21st century, however, those lessons were lost as state governments and even the federal government actively sought to suppress the vote and disenfranchise millions of Americans. In late January, the situation for our democracy got even worse.
On Jan. 21, the U.S. Supreme Court ruled that corporations can spend unlimited amounts of money on political campaigns as long as they don't formally "coordinate" with candidates or political parties. American politics is already dominated by money. The amount of money that will now be available will be astronomical and could easily drown out the voice of the average American voter. The potential to unbalance the scales and infringe on the right of all Americans to have their voices heard through the principle of "one person, one vote" presents a clear and present danger to our democracy.
Corporations and their allies may even outspend political parties in seeking to influence policy and the whole of the political discourse. The most recent example: according to the Center for Responsive Politics, the U.S. Chamber of Commerce and its national subsidiaries spent $144.5 million in 2009, far more than the Republican National Committee and more than double the expenditures of the Democratic National Committee.
In 1971, Marvin Gaye wrote and released one of the most powerful albums ever made – What’s Going On. It was a simple question about the events of the time, and his expression about those events transcended time. Thus, I use it now. What's going on?
The Citizens United decision, written by Justice Anthony Kennedy, removes limits on so-called "independent expenditures" that are not coordinated with candidates' campaigns. It leaves in place a ban on direct contributions to candidates from corporations and unions, but it allows for unlimited donations to flow to some nonprofit corporations – 501(c)(4)s, 527s, and PACs – to use to influence elections in a partisan manner. Justice Anthony Kennedy, using what some call "aggressive intervention" or "judicial activism," said that political speech is "indispensable to decision making in a democracy, and this is no less true because the speech comes from a corporation rather than an individual." So now corporations are to be treated the same as individual American citizens? What's going on?
The five-justice majority also struck down part of the landmark McCain-Feingold campaign finance bill that served to regulate union- and corporate-paid issue ads in the closing days of election campaigns. Advocates of responsible government, campaign finance reform, and those organizations that promote civic engagement are rightfully concerned and dismayed that the ruling against the limits will be tantamount to selling our elections to the highest bidder. What's going on?
This Supreme Court ruling has the potential to drown out the voice of "We the People." A strong response to the Court's ruling is necessary and puts 501(c)(3) nonprofit organizations in a critical position to ensure that their constituents’ needs and concerns aren't lost in a deluge of corporate dollars. Otherwise, I fear all we are left with is the question, "What's going on?"
(Lee Mason 02/04/10; 0 comments)
Over the past several decades, a pernicious use of the justice system has developed that poses a serious threat to First Amendment rights. Strategic Lawsuits Against Public Participation, or SLAPPs, are meritless lawsuits that individuals and businesses bring against others who speak out on public issues or communicate with their government. For example, a citizen who speaks out about the threat of contamination from a local factory, or an organization that petitions Congress to strengthen consumer protections laws may be sued for their efforts. Witnesses that the Congress invites to share information about weaknesses in the financial markets, problems in the health care system, or threats to national security, are also vulnerable to a meritless lawsuit, and that vulnerability creates a chill on First Amendment expression.
The Citizen Participation Act H.R. 4364 was introduced last week by Tenn Rep. Steve Cohen, and referred to the House Judiciary Committee for consideration. The CPA would be the first anti-SLAPP law that applies to federal cases, though 28 states have similar statutes. The act would provide immunity for defendants who engage in protected First Amendment activity, and includes a fee-shifting mechanism to discourage frivolous lawsuits.
SLAPPs require significant resources to defend against, particularly when the discovery process is used as an abusive tool to harass and exhaust the resources of a defendant. SLAPPs frequently result in settlements contingent upon the defendant’s retraction or silence, accomplishing by private litigation a ban on speech as effective as any government gag. Judge Nicholas Colabella of New York said of SLAPPs, “short of a gun to the head, a greater threat to First Amendment expression can scarcely be imagined.”
The Citizen Participation Act draws from the best of anti-SLAPP protections that twenty-eight states afford their citizens, to provide uniform, comprehensive protection against SLAPPs. The law allows a defendant to bring a special motion to dismiss a lawsuit arising from protected speech and petition, stays the discovery process while the motion is pending, and allows a successful defendant to recover fees and costs after the court finds the suit to be groundless. By providing a uniform level of protection for all SLAPP defendants, the law will help end SLAPP forum shopping and ensure full First Amendment protection in all jurisdictions.
OMB Watch is part of a coalition that has worked with Representative Cohen’s office to introduce this bill, the text and a summary is available here. A wealth of information about the bill, the project, and the coalition is available at www.anti-slapp.org.
(Lee Mason 12/23/09; 0 comments)
To try to measure if President Barack Obama's order to restrict federally registered lobbyists from working in his administration was having the unintended consequence of lobbyists deciding to deregister under the Lobbying Disclosure Act (LDA), OMB Watch looked to the Office of the Clerk of the House. It appears that gathering such information is more difficult than it should be.
On June 5, 2009 the Clerk of the House and the Secretary of the Senate issued guidance intended to address some of the questions that have come up as many registered federal lobbyists have filed terminations in the wake of the strict restrictions on lobbyists' activities and job prospects imposed by the administration. On June 16th the Clerk of the House and the Secretary of the Senate issued further clarification on the Revised Guidance Regarding Conditions for Lobbyist Termination. The Office of the Clerk of the House has a website to monitor registrations and deregistrations. This site, although useful, is cumbersome to navigate for accurate information, and there are accepted processes that conflict with the guidance issued by the Clerk of the House and the Secretary of the Senate.
The website's search engine combines six search fields and six criteria fields that offer endless combinations to gather the data you seek, but there is only one way to reveal lobbyist terminations in a particular quarter. Good luck finding it. Nowhere will you see the word "deregistration." You will, however, see a large number of registrants who are “inactive” and, if very resourceful, you will find the “termination” records, which are also included in the “inactive” data listing.
The June 16 clarification from the Clerk of the House and the Secretary of the Senate, Regarding Conditions for Lobbyist Termination, states that to properly terminate a lobbyist, the registrant must complete line 23 of the LD 2, the lobbying report used by lobbyists to report their lobbying activities for the quarter. However, the two-page report, once downloaded, stops at line 19. When the Office of the Clerk was contacted, they indicated that you must use the “add another page” button, which added page 3 with line 23. Asked why many of those listed as terminated had not signed line 23, even those reporting through the third quarter of 2009, they indicated, “Checking the termination box on line 10 of the first page of the report was in fact terminating the client so there was no need to sign line 23". OMB Watch found that this was not true for many of the reports reviewed. So it appears that the guidance and clarification notices are not hard-and fast-rules, and there are other factors for termination equally as proper as signing line 23 of the report.
Is LDA deregistration issue a non-issue? This is what research turned up in the termination reports from 2008 and up to the third quarter of 2009, which ends Sept. 30.
It is not clear that there is a problem with lobbyists deregistering because of the administration's stance on employing lobbyists; what is clear is that the systems being used to monitor lobbyist terminations can be very confusing. The Clerk of the House and the Secretary of the Senate have indicated they plan to update the LDA Guidance on a semiannual basis. Not at all sure that further guidance will make getting the information out of the system any easier.
(Lee Mason 09/02/09; 0 comments)On April 22nd Representative Paul Hodes (D-NH) introduced the Clean Law for Earmark Accountability Reform Act or the “Clear Act”, HR 2038. The measure has four co-sponsors as of this writing but is expected to gather greater support. The bill amends the Federal Election Campaign Act of 1971 to prohibit an authorized committee of a candidate who is a Member of Congress from accepting contributions from any entity for which the candidate sought a Congressional earmark during the election cycle.
That would include any senior executive of such an entity or person who is registered as a lobbyist under the Lobbying Disclosure Act of 1995 (2 U.S.C. 1601 et seq). Additionally, if the Member sought a Congressional earmark for a corporation during the election cycle, from a separate segregated fund established and administered by the corporation or labor organization.
There are areas of this bill that warrant consideration before enacted as written. First, trying to restrict a candidate from receiving contributions from an entity that the candidate formerly sought an earmark for has the potential of creating the classic shell game. The lack of disclosure would instead contribute to multiple avenues of approach to receiving campaign funding.
For instance, groups may encourage members to get earmarks through surrogates in Congress. Group “A” lobbies Congressman “A” for an earmark, and Congressman " A" approaches Congressman “B” to actually request (and disclose) the earmark. Group "A" then gets what they want and can continue to give money to Congressman “A”. I could easily envision another group (Group “B”) running the plan in reverse.
Finally, clarity is needed regarding whether the support or the approval of an earmark triggers the restriction on the candidate. This bill as is, tries to address a critical issue in helping to change “business as usual”, so let’s not create a shell game instead.
(Lee Mason 04/28/09; 1 comment)