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Over at Greg Sargent's blog, Adam Serwer (who also blogs at the American Prospect) has a good post up on the GOP reaction to President Obama's executive order requiring contractors who do business with the federal government to disclose their political donations. 

I predicted the GOP would react this way in an earlier post, but I didn't expect the additional layer of irony that is John Yoo arguing for "a right to political privacy" in the Wall Street Journal. John Yoo, you'll recall, is the guy who said the President could order a village massacred. He's the guy who wrote the torture memos and argued that the fourth amendment doesn't apply to the War on Terror. That exemption was the basis for the warrantless wiretapping program exposed by the New York Times in 2005. And the final sign that Yoo is way out on a limb here is simply that Justice Antonin Scalia disagrees with him:

[R]unning a democracy takes a certain amount of civic courage. And the First Amendment does not protect you from criticism or even nasty phone calls when you exercise your political rights…

So, to recap, according to John Yoo, the American people don't have any right to privacy. The government can seize your phone records, lock you away forever, have you tortured, and whatever else seems like it might stop the terrorists. But should Uncle Sam ask contractors that stand to benefit financially from their campaign donations to disclose who they're giving to–well, that would be government overreach.

Since this issue is complicated, let me boil it down to a few key facts:

  1. The Supreme Court has explicity rejected the argument that disclosure "chills speech." When you speak using your voice, people know that it's you speaking. The same should be true when you speak using your money. 
  2. In Citizens United v. FEC, the Supreme Court specifically called for disclosure: "[w]ith the advent of the Internet, prompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions and supporters… citizens can see whether elected officials are ‘in the pocket’ of so-called moneyed interests."
  3. The Republican Party has blocked off all other avenues for protecting disclosure. The DISCLOSE Act "failed" in the Senate, as a 59-39 majority in favor of it was insuffient to overcome a Republican filibuster. And our General Counsel has written extensively about the way in which the 3-3 Republican-Democrat split in the FEC has rendered the body impotent. The executive order was hardly the preferred option.

Those three facts and the choice of John Yoo as messenger should tell you everything you need to know about the sincerity, coherence and good intentions that underlie the GOP's position on disclosure. 

Read the editorial, it's a masterwork of mendacity, a cavalcade of calumnies, a fraudulent fantasy penned by a man who shouldn't have an iota of credibility on matters of speech, privacy or democracy. On a personal note, I find the sickest thing about Yoo's editorial to be its view that the assault, imprisonment and murder of Civil Rights supporters and disclosure laws are equally injurious to our democracy. Taking a beating in the press is in no way the same as actually taking a beating

Recently a couple of stories broke about attempts to bring disclosure back into the political fundraising process. The first was about a draft executive order that will make it harder for federal contractors to use campaign finance vehicles like American Crossroads GPS to support candidates without disclosing that fact. The second article covers DCCC chairman Rep. Chris Van Hollen's (D-MD) suit against the FEC as part of an attempt to get that very same group (Crossroads GPS) to disclose its donors. 

Neither article mentions the larger context:

In 2010, a Republican filibuster doomed the DISCLOSE act in the Senate. The DISCLOSE act was a response to the Supreme Court's decision in Citizens United v FEC, and would've enacted the disclosure requirements explicitly called for by Justice Anthony Kennedy in his majority opinion. Republicans killed the bill because they knew disclosure would limit the amount of money they could raise through vehicles like Crossroads GPS. There are plenty of corporations out there that support Republicans, but not all of them are looking to be Target

With the Senate deadlocked, the FEC seemed like another route for protecting disclosure. Unfortunately, it's also paralyzed. By law, the FEC is composed of 3 Democratic and 3 Republican comissioners. As in the Senate, the Republican members of the FEC are hostile to anything that might increase disclosure and bring transparency into the system. So the FEC remains deadlocked (for more on exactly how/why this is happening, see the link above).

That context is important because, when the legislative and regulatory routes are closed down by Republican obstruction, only the courts and executive branch remain. Any right-wing vitriol directed against these measures that doesn't acknowledge the GOP's role in closing off all other routes is an attempt to deceive the audience.  

The issue of disclosure is of critical importance to our democracy. Think of it this way: speech, as most of us understand it, is associated with identifiable voices. Accordingly, if money is speech, we need to know who is speaking. When that link breaks down, it's hard for voters–and the reporters they depend on–to tell what interests are moving through our political process. The advertisements run by Mom 'n Pop Apple Pie Shop could be a underwritten by money from Big Pie, and there'd be no way for anyone to know. Ultimately, there's no way to make an informed decision about who to vote for if you don't and can't know who's backing them.

One option is to take money out of politics, but I'm not sure there's an effective way to use politics to keep money out of politics. If you accept the proposition that interest groups can affect political outcomes, then it seems only natural that they'd work to ensure their main avenue for exerting that influence isn't cut off by an act of Congress. Even if you're willing to assume a perfect piece of campaign finance legislation, you still run into the problem that the law is constantly evolving. A decision down the road that couldn't possibly have been forseen can punch a hole through even the most well-crafted campaign finance law. In fact, we just saw that very thing happen with the Citizens United decision that undermined years of precedent and opened huge gaps in McCain-Feingold. 

That reality is why ActBlue is so important. We're taking the most settled aspect of campaign finance law (the right of individuals to give to candidates) and using it as a way to demonstrate that small donors can have a powerful voice in our politics. By disclosing those donations, we're working to remove the stigma of political giving and make it an easy and regular part of American life. In the end, we're working to restore the very confidence in our political system that Republicans are actively undermining in search of an ever larger, ever less accountable grip on our political system.

The first quarter of the 2011-12 election cycle is on the books, and it’s a doozy. We saw a massive uptick in contributions relative to previous cycles, driven by the backlash against Gov. Walker’s union-busting in Wisconsin. That drove a precipitous drop in the average contribution size relative to 2009, which was made starker by a higher-than-usual contribution size in 2009 thanks to inaugural events. All in all, the trends are exactly what we want to see: more money, coming from more people and going to more Democrats.

Number of contributions 180,547
Total raised $8,715,611.77
Average Contribution size $48.27
Committees receiving money 881
Fundraising pages receiving money 974
Pages created 1,029

 

And here’s how those numbers stack up to the last few cycles. Remember that we offer 2007 as a benchmark for a pre-presidential off-year and 2009 to illustrate cycle over cycle growth:

Q1 2007 Q1 2009 Q1 2011 Change
Contributions 31,441 24,361 180,547 641%
Volume ($) $3,141,038.27 $5,343,772.70 $8,715,611.77 63%
Mean Donation $99.90 $219.36 $48.27 -78%
Committees 235 651 881 35%
Pages Created 346 1,026 1,029 .3%
Pages w/ Money 203 684 974 13%

 

 
And here are the five top committees, ranked by number of donors, for Q1 2011.

Name Race Donors Dollars
PCCC Organization 61,542 $691,584
Democracy for America Organization 44,767 $503,841
Democratic Party of Wisconsin Organization 43,595 $1,099,087
Wisconsin State Senate Democratic Committee Organization 30,726 $768,067
PCCC Recall Committee Organization 25,481 $267,919

 

Here, as everywhere else this quarter, we see organizations dominating the field as political campaigns have yet to ramp up. Those organizations, in turn, are laying the groundwork that will make them valuable allies when the horse race gets underway in earnest.

Five conservative justices on the Supreme Court appear poised once again to strike down a law favored by the campaign finance reform community. Late last month, the Court heard oral arguments in the case McComish v. Bennett, which involves the matching funds provision of Arizona’s public financing program, a measure intended to protect participating candidates from the threat of being outspent by privately funded opponents. The provision is in many ways similar to the federal Millionaire’s Amendment, which operated to increase contribution limits for publicly funded candidates facing an opponent who is self-financed, until it was struck down by the Court in 2008. And this case comes on the heels of the most notorious campaign finance case decided by the Supreme Court in recent memory, Citizens United v. FEC, in which the conservative majority struck down laws limiting corporate spending in elections, permitting them to spend unlimited amounts of money in support of candidates.

Campaign finance reform has been getting a substantial black eye at the hand of the Court lately, and the McComish case will most likely cause this trend to continue. The effect of these cases on public opinion hasn’t yet been definitively measured, but these cases have forced states such as Connecticut to rethink their approach to public financing. And if the Arizona law is struck down in McComish, a number of states around the country will be forced to take legislative action to replace or abandon similar provisions in their public financing schemes. With each change, political leaders are forced to resubmit their argument to the electorate for why public financing of campaigns is a worthy cause in an environment of increasingly high-profile criticism compounding severe budgetary concerns.

The particular variety of public financing at issue in McComish provides a grant of government funds to a candidate in exchange for a ban on private contributions to that candidate, effectively creating a spending limit as the candidate is not permitted any other source of campaign funds. For over thirty years, virtually all of our presidential campaigns have been funded this way. But President Obama opted out of the public financing system in the 2008 election, and is likely to opt out once again in 2012, because the amount of the grant has not kept pace with the cost of campaigning. The Arizona matching funds provision is one response to this problem: Rather than providing a larger grant, the government provides additional 1-to-1 matches for every dollar spent by an opponent over the amount of the initial grant. Like the Millionaire’s Amendment, this approach attempts to deal with the competitive limitations of public financing only in the event that an opponent takes advantage of this limitation. It is the reactive nature of these provisions which has led to all of the trouble public financing has had with the Constitution.

The prospect of being outspent by an opponent is a real threat to the attractiveness of a public financing program. And if participation is viewed as a disadvantage, that could mean the end public financing since it is a voluntary program (the Supreme Court has long held that spending limits are only constitutional if voluntary). But attempts at addressing this shortcoming on a candidate-by-candidate basis, rather than rethinking the system itself, have proven counterproductive. In the case of both the Millionaire’s Amendment and Arizona’s matching funds, the result has been unstable public financing regimes which ultimately cause embarrassment in the highest court in the land. It is becoming clear that selectively using government grants to compensate for the spending disadvantage inherent in such a public financing program will not pass constitutional muster. The answer lies in rethinking public financing systems entirely to bake competitiveness right in.

Mechanisms for financing campaigns which rely on public grants alone suffer from an additional infirmity: They do not promote participation in the political process among the citizenry. It is convenient, then, that there is (at least) one common solution to both problems. Permitting candidates to receive a mixture of both public and private funding prevents corruption and gives non-traditional candidates the boost they need in public grants — either in the form of a lump sum payment or as matching funds for small-dollar private contributions — while also avoiding the potential competitive disadvantage. Public matching funds for small-dollar contributions to a publicly funded candidate (as opposed to matching the spending of a privately funded opponent) gives all publicly funded candidates the means to be competitive, and leaves it to the candidate to decide whether to increasing her spending in the event of a well-funded challenger. The sponsors of the Fair Elections Now Act, which would provide for public financing of congressional campaigns, have embraced just such a solution, as have many states and municipalities around the country. And the Supreme Court has already given the constitutional stamp of approval to just such a matching funds provision in the presidential public financing program, so there is little likelihood that this approach is vulnerable to a court challenge.

Public funds used to match private small-dollar contributions increases the impact of private funding by ordinary citizens without any risk of corruption. This encourages more participation by those citizens and solves the competitiveness problem. More profoundly, this hybrid approach does not foreclose one of the most meaningful avenues citizens may employ to express their opinions on matters of public concern, such as collective bargaining rights in Wisconsin, defending the legitimacy of our first African-American president, and marriage equality. Incorporating private campaign contributions into a system of public financing — or rather, not walling publicly funded candidates off entirely from non-corrupting forms of private financing is the best way to ensure that campaign finance reform will no longer be kicked around by the Supreme Court. Fortunately, it will also make public financing a more perfect system, incorporating the best of both worlds.

As I mentioned last month, Wisconsin is the story of 2011 so far. In late February, Republican Gov. Scott Walker attempted to undermine a core Democratic constituency by revoking the right of public workers to bargain collectively, ostensibly for budgetary reasons. When Democratic state senators fled the state to deny him the legislative quorum required to pass a budgetary measure, Wisconsin Republicans declared that it didn’t impact the budget and passed the law without warning in a five minute session. Recently, a Wisconsin judge blocked the law’s implementation. Talking Points Memo has a useful timeline of events.

The immediate result of Gov. Walker’s overreach was a huge surge in Democratic fundraising and the initiation of recall proceedings against vulnerable Wisconsin Republicans. As Greg Sargent noted, the first completed recall petition tied the record for the fastest recall petition in Wisconsin history. The momentum on the ground is more than matched by the fundraising numbers. In March alone, ActBlue processed $3.7 million worth of donations to Wisconsin Democrats and allied groups. Add in the numbers from February and the total climbs north of $4 million. That’s a lot of cheddar, and its impact is reflected in our March fundraising numbers:

Number of contributions 143,034
Total raised 5,854,848.89
Average Contribution size $40.93
Committees receiving money 673
Fundraising pages receiving money 731
Pages created 490

 

As you’ll see below, the donations in Wisconsin were primarily by grassroots donors, who drove huge growth in the number of contributions and lowered our average donation size.

Mar 2007 Mar 2009 Mar 2011 Change
Contributions 21,912 11,438 143,034 1150%
Volume ($) $1,998,288.74 $2,765,316.89 $5,854,848.89 113%
Mean Donation $91.20 $241.77 $40.93 -83%
Committees 189 440 673 53%
Pages Created 158 452 490 8%
Pages w/ Money 164 412 731 77%

 

 
And here are the five top committees, by number of donors, for March 2011.

Name Race Donors Dollars
PCCC Organization 54,371 $576,408
Democratic Party of Wisconsin Organization 43,598 $1,099,121
Democracy for America Organization 41,323 $462,030
PCCC Recall Committee (Wisconsin) Organization 25,483 $267,944
MoveOn.org Political Action Organization 24,191 $364,237

 

The fact that March fundraising was driven primarily by organizations is a reflection of how big the stakes are in Wisconsin. Gov. Walker’s attack on collective bargaining isn’t just about undermining a core Democratic constituency (though it’s about that too); it’s about redistributing wealth (and thus political power) upward, away from workers and public servants and thereby diminishing their voice in the political process. Organizing and funding resistance to that overriding Republican goal is too big a job for any one candidate, so state and national organizations stepped in to help shoulder the load.

At ActBlue, our mission is to give grassroots donors a powerful voice in our democracy, so we were happy to put our tools at their disposal. We’re about democratizing power, and this is how we do it.

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