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Under the U.S. Supreme Court: Son of Bush vs. Gore

By MICHAEL KIRKLAND   |   Feb. 12, 2012 at 3:30 AM
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WASHINGTON, Feb. 12 (UPI) -- Stories exploded in the national media last week as news outlets finally awakened to the fact that for the second time in about a decade, a U.S. Supreme Court decision is going to have a major impact on a presidential election.

The first decision, of course, was 2000's Bush vs. Gore, which ended the Florida recount and ensured George W. Bush would be the next president of the United States.

The second decision, which caused almost as much consternation among Democrats, was 2010's Citizens United vs. FCC, which effectively ended the restrictions on political contributions from the general funds of corporations and unions.

The Citizens United ruling, or more particularly how the lower courts have interpreted it, has given birth to the super PAC in the 2012 presidential campaign. The Center for Responsive Politics describes the super PACs as "a new kind of political action committee created in July 2010 following the outcome of a federal court case known as SpeechNow.org vs. Federal Election Commission." In that case, a Washington appeals court applied the principles of Citizens United, which focused on corporate donations, to remove the cuffs from personal contributions.

"Technically known as independent expenditure-only committees," the center said, "super PACs may raise unlimited sums of money from corporations, unions, associations and individuals, then spend unlimited sums to overtly advocate for or against political candidates."

However, super PACs must report the identities of donors to the Federal Election Commission on a monthly or quarterly basis, based on the Super PAC's choice, "as a traditional PAC would. Unlike traditional PACs, Super PACs are prohibited from donating money directly to political candidates."

As of Feb. 9, the center said, "318 groups organized as Super PACs have reported total receipts of $98,650,993 and total independent expenditures of $46,331,187 in the 2012 cycle."

Dominating that list is the Restore Our Future super PAC, which favors but doesn't coordinate with Mitt Romney, the former Massachusetts governor and on-again off-again front-runner for the Republican presidential nomination.

The $30 million raised by Restore Our Future, and the more than $18 million expended, more than dwarfs the super PACs of Romney's rivals. Former House Speaker Newt Gingrich's super PAC, Winning Our Future, for example, has raised more than $2 million but spent nearly $9 million.

The super PACs fund most of the slashing attack ads by each campaign.

But much more ominous than the super PACs are the non-profit groups, also the progeny of Citizens United and Speechnow.org.

"More than a third of the advertising tied to the presidential race has been funded by non-profit groups that will never have to reveal their donors, suggesting that a significant portion of the 2012 elections will be wrapped in a vast cloak of secrecy," The Washington Post reported Feb. 6.

The Post said the bulk of the secret money has come from conservative groups trying to elect a Republican president. But millions from both conservative and liberal non-profits has been spent on congressional races.

Unlike super PACs, "politically minded non-profit groups are under no obligation to disclose the corporations, unions or wealthy tycoons bankrolling their advertising, ...," the Post said. "The end result is a presidential race heavily influenced by organizations and their funders who will remain largely in the shadows."

The rise of the secret government -- or at least the secret funding of political candidates -- has been a long time in coming.

"Is the American political process drowning in corporate money, dammed-up funds in long confinement finally set loose by a U.S. Supreme Court decision so controversial even its supporters defend it with a wink and a smirk?" United Press International reported last August. "As you read this, tens of millions of dollars, much of it from secret corporate sources, is winding its byzantine way into the campaign chests of politicians and the major parties."

Like Bush vs. Gore, the January 2010 decision in Citizens United was handed down by a 5-4 majority.

Writing for that majority, Justice Anthony Kennedy pointed to Supreme Court precedents that said the political speech of corporations was protected by the First Amendment. That applied, he wrote, even if the funds corporate executives were spending in political races belonged to stockholders.

Before Citizens United, the 2002 Bipartisan Campaign Reform Act -- better known as McCain-Feingold -- prohibited corporations and unions from using their general treasury funds to make independent expenditures for an "electioneering communication" or for speech that expressly advocates the election or defeat of a candidate.

Corporations could still set up a political action committee, but PACs are subject to even more restrictions and disclosures. And normal PAC money, of course, had to come from the pockets of corporate executives, not from the corporate treasury, and they could only donate $2,500 in every election cycle.

Kennedy said that situation violated the First Amendment, in language eerily echoed this year by Romney's campaign trail declaration that "corporations are people too.".

"A PAC is a separate association from the corporation," Kennedy wrote in the majority opinion. So even with the PAC exemption from the law's expenditure ban, the law "does not allow corporations to speak. Even if a PAC could somehow allow a corporation to speak -- and it does not -- the option to form PACs does not alleviate the First Amendment problems with [the core provision of the McCain-Feingold Act]. PACs are burdensome alternatives; they are expensive to administer and subject to extensive regulations. For example, every PAC must appoint a treasurer, forward donations to the treasurer promptly, keep detailed records of the identities of the persons making donations, preserve receipts for three years and file an organization statement and report changes to this information within 10 days.

"And that is just the beginning," Kennedy said. "PACs must file detailed monthly reports with the FEC, which are due at different times depending on the type of election that is about to occur."

Kennedy said: "When government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves."

Justice John Paul Stevens, now retired, led the four dissenters to the judgment. "The court's ruling threatens to undermine the integrity of elected institutions across the nation," Stevens wrote. "The path it has taken to reach its outcome will, I fear, do damage to this institution."

Justice Clarence Thomas was part of the five-justice majority, but issued a partial dissent to allowing donors to be identified, saying he knew of people threatened for their political beliefs.

"I cannot endorse a view of the First Amendment that subjects citizens of this nation to death threats, ruined careers, damaged or defaced property, or pre-emptive and threatening warning letters as the price for engaging in"core political speech, the 'primary object of First Amendment protection,'" Thomas said, standing up for secrecy.

Just days after the decision, President Barack Obama condemned it in his State of the Union address. "Last week, the Supreme Court reversed a century of law to open the floodgates for special interests -- including foreign corporations -- to spend without limit in our elections," Obama said. "Well I don't think American elections should be bankrolled by America's most powerful interests, or worse, by foreign entities."

Several of Supreme Court justices sitting only feet from the president sat on their hands and glared.

But what a difference a political year makes.

Last week, the White House said Obama had reversed himself and was endorsing a super PAC working on his behalf, and would allow campaign officials and Cabinet members to attend fundraisers for Priorities USA Action.

"Liberals and political reform advocates on Tuesday denounced his decision ... ," the Los Angeles Times reported. "It remains to be seen whether Democratic contributors will make the mammoth donations that have fueled the GOP-allied super PACs, such as the $8.6 million Dallas billionaire Harold Simmons and his company gave last year to groups such as American Crossroads."

Obama will have to scramble to compete with conservatives in the super PAC arena, but outside of that arena he "has assembled a robust network of fundraisers that has helped bring in $220 million so far for his re-election campaign and the Democratic Party," the Times said.

Meanwhile, the Securities and Exchange Commission is still considering a request from a group of professors of corporate law for a new regulation. The proposed regulation, which has been simmering since August, would force corporations to tell shareholders the details of political contributions made with corporate money. The regulation, if approved, would go a long way toward shattering the secrecy of the current system.

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