Clarke’s forceful public criticism is of Chisholm and the so-called “John Doe” investigation that Chisholm has pursued since 2010 against Walker, his staff and virtually every conservative advocacy group in the state.

Clarke, who has been sheriff since 2002 and is running for re-election on Tuesday as the Democratic nominee, has been elected and re-elected with heavy support both from fellow African-Americans and from conservatives.

Clarke said that he agreed with a petition seeking appointment of a special prosecutor to investigate Chisholm. The petition was filed on Sept. 26 by a major Chisholm target, conservative fundraiser Eric O’Keefe.

While Clarke and Chisholm are both Democrats, the iconoclastic sheriff has often clashed with the more liberal Democrats who dominate Milwaukee politics, including Chisholm.

“This will go down as one of the ugliest chapters in Wisconsin political history” Clarke told this reporter. “This is a witch-hunt by a hyper-partisan prosecutor’s office … to go after political adversaries they disagree with.”

Clarke said Chisholm has been evasive responding to whistleblower Michael Lutz’s allegations that Chisholm had exuded improper personal and political bias against Walker in a private conversation in March 2011. Chisholm “didn’t answer the questions,” Clarke said, referring to an Oct. 8 letter in which Chisholm urged Milwaukee Chief Judge Jeffrey Kremers to reject O’Keefe’s petition, which had relied heavily on the questions raised by Lutz’s allegations.

He said he had regarded Chisholm as a “standup guy” years ago when, as a police captain, Clarke worked with then-Assistant District Attorney Chisholm on gun cases.

But as he learned about the nature of the Chisholm’s investigation of the Wisconsin Democratic Party’s political rivals, Clarke said, “I was appalled by some of the stuff that had gone on in the John Doe investigation, and that image I had of Chisholm as a person of unquestioned integrity started unraveling.”

The investigation started in 2010 based on a report by then-Milwaukee County Executive Walker’s staff that reported a minor theft from a charity fund.

Soon, Clarke said, “It became, ‘Let’s see what we can find,’ without any allegation. When you get prosecutors abusing their power, they can take out anyone. I’m a Democrat, but what if he says, ‘Let’s go get Clarke?’ They can ruin your life.”

Clarke stressed what he said had been politically motivated leaks by Chisholm’s office of confidential information about the John Doe investigation to embarrass Republicans including Walker.

“John said his office didn’t originate the leaks,” Clarke said.” Who else would have leaked it? They’re the only ones who had the information. I’m surprised as well that John Chisholm never displayed any concern or disgust that there were leaks coming out of… his own staff.”

Indeed, Clarke added, “You would think he’d shut the investigation down,” it’s so tainted.

Chisholm and his lawyer, Samuel Leib, have not responded to an emailed request for comment.

More generally, Clarke complained, while Chisholm was a good, tough prosecutor before becoming district attorney, he has since “turned more liberal” and soft on crime. “I don’t recognize him,” Clarke said. “He became ‘part of that revolving-door justice system that’s had terrible effects on minority communities.’”

Clarke described himself as a “conservative Democrat, strong on national defense, strong on safe streets. I believe the Constitution protects individuals not groups. I believe in limited government and I believe in the powers of the states.”

His calls for citizens to have guns for self-defense have made him something of a hero to many on the Republican right.

After four years of investigation, Chisholm and his fellow prosecutors have ordered predawn raids by armed officers on the homes of conservative activists; seized their documents, computers and cell phones while their children were getting dressed for school; subpoenaed hundreds of thousands of documents from dozens of conservative groups; routinely obtained gag orders barring targets and witnesses from revealing what has been done to them; won a few minor convictions but failed to find evidence sufficient to charge Walker, indeed any prominent conservative, with any crime.

The issue currently at the heart of the investigation is whether the collaboration of conservative issue-ad groups with Walker’s campaign in a 2012 recall election violated Wisconsin’s campaign finance laws against “illegal coordination,” as Chisholm has suggested.

Chisholm’s conservative targets say that their conduct complied with Wisconsin law, was protected by the First Amendment and was indistinguishable from the conduct routinely engaged in by Democratic candidates, groups and unions.

Both a state and a federal judge have ruled that none of the conduct under investigation appears to have been illegal. Those decisions are on appeal.

Chisholm, who launched the probe of Walker in 2010 and has staffed it with own his assistants, has conducted it since last year in conjunction with Special Prosecutor Francis Schmitz, now the titular head of the investigation, and the state’s Government Accountability Board.

Chisholm’s Oct. 8 letter stressed that Schmitz is not a Democrat and the GAB is required by law to be nonpartisan.

Clarke’s view that Chisholm was a good prosecutor who became “hyper-partisan” is strikingly similar to that of the whistleblower Lutz, the former Chisholm subordinate and decorated former police officer who has accused Chisholm of privately exuding strong personal and political bias against Walker.

“I admired him greatly,” as a friend and a mentor, Lutz has told this reporter, explaining that he was very friendly with both John and Colleen Chisholm because her brother had been Lutz’s police partner and best friend.

But during the bitter partisan battle in the winter of 2011 over Walker’s successful push to break the power of the state’s public-sector unions, Lutz said, “it was surprising how almost hyper-partisan he became.”

During a private meeting in Walker’s office in March 2011, according to Lutz, when he was serving as an unpaid “public interest special prosecutor,” Chisholm ordered him to reject a request by Republican Wisconsin Supreme Court Justice David Prosser that Lutz tape a pre-election video praising a Prosser decision that Lutz admired as good for police.

Chisholm’s reasons, as recalled by Lutz, were blatantly political: “He didn’t want Prosser to decide on” the inevitable legal challenge to Walker’s union-curbing legislation and he “wanted to stay as far away from these Republicans as he can.”

Chisholm also said, according to Lutz, that his wife Colleen, a teachers union shop steward, had been so angry and upset by Walker’s union-curbing as to be repeatedly moved to tears; that she had joined union demonstrations against Walker; and – most important – that Chisholm  “felt it was his personal duty to stop Walker from treating people like this.”

At the same time, Lutz added, many of Chisholm’s unionized staff acted “like an anti-Walker cabal,” with some posting blue fists as anti-Walker symbols on office walls.

Lutz’s reward “for telling the truth,” he has said, was that the Milwaukee Journal Sentinel hunted him down; exposed him as this reporter’s source despite his fear of retaliation and despite his prior role as a source for Journal Sentinel reporters; and dishonestly smeared him as a dangerous drunk with a troubled past.

In particular, the newspaper has repeatedly accused Lutz of making a drunken “death threat” in 2013 against Chisholm and his family.

This despite the facts that Chisholm himself has never claimed publicly that Lutz threatened him; that Lutz has dismissed the “death threat” allegation as a gross distortion of an angry but well-intentioned phone message intended to prevent a suicide; and that the much-decorated former cop, who earned a law degree after being disabled by a gunshot wound, has many admirers in the police department.

Clarke, under whom Lutz worked years ago when Clarke was a Milwaukee police captain, described him on Tuesday as “respected by peers as an active officer” who was “committed to public safety.”

Clarke added that “the Milwaukee Journal Sentinel, having a dog in this fight, went in typical fashion to smear Lutz’s reputation.” He called the newspaper “a wholly-owned subsidiary and a propaganda machine for the Democratic Party in Milwaukee.”

Partisan bias, Clarke implied, may also explain why the Journal Sentinel appears determined to obscure that Chisholm has never specifically denied any of Lutz’s allegations about their March 2011 meeting.

Chisholm’s most recent non-denials came in his nine-page Oct. 8 letter to Judge Jeffrey Kremers, which was made public on Oct. 25.  It rejected in detail various allegations by O’Keefe and his lawyers of criminal abuses of prosecutorial power – without mentioning Lutz or his allegations.

Rather, in apparent allusions to O’Keefe’s heavy reliance on those allegations, Chisholm wrote:

“Supposed ‘new’ information is now offered in the form of statements by persons who have no personal knowledge of which they speak…

“Plain and simple, words like ‘Act 10’ or ‘union’ and phrases like ‘stop Walker’ have never been uttered by me or anyone else in the course of any investigation.

“Those who know my wife know she is not inclined to tears or emotional distress. She is a strong woman with political views of her own, views that play no role in any decision I make as prosecutor.”

While many readers might infer that Chisholm’s letter contradicted Lutz’s allegations, in fact, as Clarke noted, it was carefully drafted to avoid denying a single one of them.

Chisholm’s statement that his wife “is not inclined to tears” did not deny that he told Lutz that she was repeatedly moved to tears by Walker’s Act 10. Nor did Chisholm deny, or even mention, his wife’s alleged “hate for the gov.,” her alleged role in union demonstrations against Walker, or even her role as a teachers union shop steward.

Still more striking is Chisholm’s use of the phrase “in the course of any investigation” to qualify his assertion that he had never said anything like “stop Walker.”

Because Chisholm’s alleged private comments to Lutz were clearly not made “in the course of any investigation,” Chisholm’s letter did not deny them.

This omission is consistent with the DA’s previous non-denials.

When this reporter sought comment in a Sept. 5 email about Lutz’s allegations, the only response came from Samuel Leib, Chisholm’s personal lawyer. He called them a “baseless character assault” that “is inaccurate in a number of critical ways,” adding that “John Chisholm’s integrity is beyond reproach.”

Leib provided no specifics. He also ignored this reporter’s follow-up email the same day requesting that he “identify specifically each of the ‘number of ways’ in which you contend the passage that I sent you is inaccurate.”

Chisholm and Leib have also ignored an Oct. 3 email from this reporter containing 37 questions about Lutz’s allegations.

The closest that Chisholm appears to have come to denying Lutz’s specific allegations may have been on Sept. 10, when Jason Stein of the Milwaukee Sentinel reported that “in a brief interview, Chisholm denied making those comments.”

But the article did not disclose what Chisholm had been asked, by whom, what had been his response, and which (if any) “comments” he specifically denied making.

So far as the public record discloses, the newspaper has never pressed Chisholm for a more specific response to Lutz’s allegations.

Nor is there any public-record evidence that the Journal Sentinel has ever pressed Chisholm for access to the recording of the 2013 phone message in which – the newspaper has repeatedly claimed, based on a vague allegation by Leib – Lutz made a “death threat” against Chisholm and his family.

Neither Chisholm nor the Journal Sentinel has ever suggested a motive for Lutz to lie. He says that his motive has been to protect the freedom of speech – including his own First Amendment right to speak out in favor of Justice Prosser – by telling the truth about the political agenda driving Chisholm.

“I don’t like what Chisholm has done,” Lutz told this reporter, “in regard to political speech that he disagrees with.”

Sheriff Clarke doesn’t like it either. And when he heard Lutz detailing his allegations of prosecutorial bias in recent radio interviews, “I asked myself, ‘What’s in it for Mike Lutz to do this? He did it anonymously.’ I don’t see Mike having any agenda here.”

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I refer, of course, to the hugely important 5-4 decision freeing all corporations and, by clear implication, labor unions to spend unlimited sums supporting or opposing federal candidates.

The majority’s sweeping and unprecedented interpretation of corporations’ First Amendment rights, written by Justice Anthony Kennedy and joined by Antonin Scalia and Clarence Thomas, as well as Roberts and Alito, wiped out federal laws dating back 63 years and two major precedents.

And while the Court’s green light for "independent expenditures" of corporate funds on elections left intact the ban on direct corporate contributions to candidates, it nonetheless risked increasing the already worrisome dependence of candidates on various forms of big-business and big-labor support.

Kennedy all too cavalierly bats aside a compelling argument for banning executives from spending shareholder funds on elections.

This is not to join in liberal alarums that the decision in Citizens United v. Federal Election Commission will necessarily swamp federal elections under a deluge of corporate money. Nobody really knows how big a difference it will make. Corporate freedom to spend on elections does not seem to have had much impact in the 26 states that already allow it, perhaps because big businesses are wary of making enemies as well as friends. And union spending for Democrats will offset any Republican advantage in corporate spending.

Nor do I put stock in the four liberal dissenters’ suggestions that they are any more committed to "judicial restraint" or respect for precedent as a neutral principle than are their conservative colleagues.

While the conservatives’ view of free speech rights in this area seems too broad, the liberals’ view — especially by comparison with their capacious protection of, say, pornography and nude dancing as free speech — seems too narrow.

All nine justices passed up an opportunity to carve out a pragmatic, principled exception to Congress’s overbroad 63-year-old ban on corporate spending on federal elections, an exception that could have amply protected Americans’ free speech rights without allowing big business executives to use other people’s money — that of shareholders — to buy politicians.

Specifically, the Court should have upheld the ban on election spending of shareholder funds by business corporations but allowed election spending by nonprofit ideological groups, such as the Sierra Club, the National Rifle Association, and the ACLU, whose members give them money precisely for the purpose of influencing governmental policies.

Kennedy’s majority opinion is utterly unconvincing in arguing that unleashing big business corporations to spend shareholder funds to support and oppose candidates is necessary to protect the rights of those shareholders and executives who wish to aggregate their money for such purposes.

As the dissenters point out, all corporations are free to create political action committees that can spend on elections as much money as they can collect from officers, shareholders, and others who choose to donate for that purpose. Corporations are also free to spend stockholder funds without limit on "issue ads" and on lobbying.

It’s true, as Kennedy writes, that the administrative burdens involved in forming a PAC are considerable. But these burdens are not a serious problem for big, or even not-so-big, businesses. And while they are a problem for the vast majority of corporations owned by one or a few people, such people can easily spend as much as they choose on elections individually.

Kennedy also stresses that the main arguments adopted by the now-overruled precedents for banning corporate spending of shareholder funds on elections — that such spending involves "corruption" or "the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form" — are unconvincing or problematic.

He’s right about that. But Kennedy all too cavalierly bats aside a far more compelling argument for banning corporate executives from spending shareholder funds on elections.

The money does not belong to the executives who decide how to spend it; corporate law allows them to spend it only to serve their companies’ parochial economic interests; and the vast majority of the individual shareholders to whom the money does belong have not chosen to spend it on elections and would in many cases disagree with the executives’ candidate preferences.

Kennedy and Chief Justice Roberts in a concurrence belittle this so-called "shareholder protection rationale" for banning corporate election spending.

But even apart from protecting the interests of shareholders who might object to having their money spent to advance politicians they don’t support, big-business spending on elections distorts the political process by injecting large sums of individuals’ money in support of candidates whom they have not chosen to support — regardless of whether those individuals are motivated to object or even care.

Most people own stock through mutual funds and retirement plans and don’t pay attention to election spending by individual companies of which they own tiny percentages. Why should a corporate executive or anyone else be allowed to pour other people’s money into political campaigns as though the shareholders wanted that done?

In this regard, the dissenters were quite right to suggest that in the majority’s distended view of corporate First Amendment rights, "multinational corporations controlled by foreigners" — who have no right to spend individually on elections — could spend unlimited sums on federal elections. The majority backhandedly acknowledged that this might be troublesome and then moved on.

Advocates of unleashing all corporations point out that the current ban sits somewhat awkwardly alongside the congressionally conferred (and, I think, constitutionally mandated) license enjoyed by huge media corporations — including Disney’s ABC — to spend whatever they please on election advocacy.

This is perhaps the majority’s strongest point. But it overlooks key distinctions: People who buy stock in media corporations are on notice that one of their primary goals is to spend money on federal elections, including editorials for and against candidates. In addition, the First Amendment protects the freedom "of the press" as well as the freedom of speech, and thus suggests that the Framers expected the media to enjoy some protections that others might not enjoy.

Apart from media corporations, the one significant group of corporations that aggregate the money of individuals who want their money spent on elections, but that are in many cases so small that forming PACs would be burdensome, are nonprofit ideological corporations.

And this points to the one serious First Amendment defect in the campaign finance rules that the justices have now struck down. In adopting the 2002 McCain-Feingold law, Congress added to its justifiable ban on "electioneering" broadcast ads by business corporations an utterly unjustified amendment by the late Sen. Paul Wellstone, D-Minn., extending the ban to nonprofit ideological corporations formed by people who want to pool their funds to promote their political views.

(The 1947 Taft-Hartley Act imposed a narrower ban on corporate "express advocacy" for or against candidates.)

Congressional supporters made clear that the purpose of the Wellstone amendment was not to fight corruption but rather to stifle "negative attack ads" criticizing themselves and other incumbents (as well as challengers).

The justices should have struck it down while leaving intact the ban on electioneering by business corporations. But not one of the nine proposed to do that.

While the conservative majority thus gave undue First Amendment protection to business executives to electioneer with shareholder funds, the liberal dissenters would have sacrificed the First Amendment rights of individuals to aggregate their money and spend through nonprofit ideological corporations.

Moreover, the liberals’ suggestions that Congress can and should curb the spending of great wealth amassed in the business marketplace on elections could be extended to justify curbs on wealthy individuals’ spending.

Such a step might be understandable in extreme cases. But it would be limitless in its potential for multiplying wealth-based restrictions on speech. It would also wipe out a cardinal principle of the campaign finance precedents for which the liberals affect such respect: that "government may [not] restrict the speech of some elements of our society in order to enhance the relative voice of others."

The liberals argue that business spending on campaigns, including independent expenditures, creates the kind of appearance of indebtedness and of corrupt dealings that justify banning large (above $2,400) contributions from individuals and all corporate contributions.

But independent election spending by business corporations is no more corrupting than the independent spending of vast sums by super-rich individuals such as George Soros, which the First Amendment properly protects.

In any event, while the liberal justices might like to tack too far away from vigorous First Amendment protection of political speech, the conservatives are on top for the foreseeable future.

I wrote in a September 19 column that "it would look a lot like judicial activism for the more conservative justices to ram through, for no good reason, a 5-4 decision smashing a cornerstone of campaign finance law; overruling precedents that date to 2003 and 1990; and brushing aside congressional concerns about corruption and its appearance — all in a case that does not even involve a business corporation."

Now they’ve done it.

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The Supreme Court’s five conservatives are properly protective of American citizens’ First Amendment rights to spend as much of their money as they wish on political speech, both individually and by funding nonprofit advocacy groups. But this was no justification for the court’s blockbuster, precedent-smashing Jan. 21 decision unleashing corporate executives to pour unlimited amounts of stockholders’ money-without their consent-into ads supporting or attacking federal candidates. Indeed the 5-

The Supreme Court’s five conservatives are properly protective of American citizens’ First Amendment rights to spend as much of their money as they wish on political speech, both individually and by funding nonprofit advocacy groups. But this was no justification for the court’s blockbuster, precedent-smashing Jan. 21 decision unleashing corporate executives to pour unlimited amounts of stockholders’ money-without their consent-into ads supporting or attacking federal candidates. Indeed the 5-4 decision would allow any big company to spend a fortune attacking candidates whom many, or even most, of its stockholders would rather support. And corporations-including multinationals controlled by foreigners-will spend money on elections not to advance the political views of their stockholders, but to seek economic advantage.

So the court’s decision strikes me as a perverse interpretation of the First Amendment, one that will at best increase the already unhealthy political power of big businesses (and big unions, too), and at worst swamp our elections under a new deluge of special-interest cash. More ominously still, Citizens United v. FEC lends credence to liberal claims that all f…

The Supreme Court’s five conservatives are properly protective of American citizens’ First Amendment rights to spend as much of their money as they wish on political speech, both individually and by funding nonprofit advocacy groups. But this was no justification for the court’s blockbuster, precedent-smashing Jan. 21 decision unleashing corporate executives to pour unlimited amounts of stockholders’ money-without their consent-into ads supporting or attacking federal candidates. Indeed the 5-

The Supreme Court’s five conservatives are properly protective of American citizens’ First Amendment rights to spend as much of their money as they wish on political speech, both individually and by funding nonprofit advocacy groups. But this was no justification for the court’s blockbuster, precedent-smashing Jan. 21 decision unleashing corporate executives to pour unlimited amounts of stockholders’ money-without their consent-into ads supporting or attacking federal candidates. Indeed the 5-4 decision would allow any big company to spend a fortune attacking candidates whom many, or even most, of its stockholders would rather support. And corporations-including multinationals controlled by foreigners-will spend money on elections not to advance the political views of their stockholders, but to seek economic advantage.

So the court’s decision strikes me as a perverse interpretation of the First Amendment, one that will at best increase the already unhealthy political power of big businesses (and big unions, too), and at worst swamp our elections under a new deluge of special-interest cash. More ominously still, Citizens United v. FEC lends credence to liberal claims that all five of the more conservative justices are "judicial activists," the same imprecation that conservatives have for so long-and often justifiably-hurled at liberal justices.

Judicial activists-at least as I define them-are judges who are unduly eager to aggrandize their own power and impose their own policy preferences on the electorate. They invoke farfetched interpretations of the Constitution to sweep aside democratically adopted laws and deeply rooted societal traditions. I’d hoped that Bush-appointed Chief Justice John Roberts and Justice Samuel Alito, who came across in their confirmation hearings as believers in judicial modesty, would bring a healthy dose of restraint to a court long populated by activists, and would thereby shun sharp lurches to the ideological right. It appears that I misjudged them.

I don’t accuse the conservative justices of being any more activist than the liberals, who are all too eager to promote their own ideological agendas. But the conservatives have booted away any standing that they may once have had to pose as the guardians of judicial restraint. To wipe out a 63-year-old congressional ban on virtually all corporate and union spending in support of, or opposition to, federal candidates, the conservative justices overruled major Supreme Court precedents from 1990 and 2003. (The decision left intact the ban on direct corporate contributions to candidates.)

Writing the majority opinion, Justice Anthony Kennedy proclaimed this necessary to protect the free-speech rights of "citizens." But corporations are not citizens. And while most corporate officers and stockholders are citizens, those who want to pool their money to support or oppose federal candidates have long been free to do so through political action committees. Conservative justices point out that most corporations are owned by one person or a few people for whom forming a PAC would be burdensome. True. But such people have no need to use their corporations as conduits for their campaign spending.

To be sure, two types of corporations have compelling arguments for exemption from the ban on corporate campaign spending. Congress has long exempted media corporations. The First Amendment explicitly protects freedom "of the press" as well as of speech. Those who buy stock in media companies know of, and implicitly consent to, their roles in supporting and opposing candidates. The other group consists of nonprofit ideological corporations whose members pool their money precisely for the purpose of influencing policy. Examples are the Sierra Club, the NRA, and the ACLU. Since 2002 Congress has banned these corporations from election spending-not to prevent corruption by these groups, but rather to stifle "negative attack ads" criticizing members of Congress and other candidates.

The court could, and should, have exempted nonprofit ideological groups without disturbing the ban on business corporations and union campaign spending. But all nine justices passed up the opportunity to carve out such a pragmatic, principled decision. The liberals thereby demonstrated that they are all too ready to sacrifice the First Amendment rights of real citizens who want to pool their money for election spending. But the conservatives-all too eager to expand the political power of big business in the guise of protecting First Amendment rights-are in the driver’s seat.

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The immediate issue is whether to demolish Congress’s overly broad, 62-year-old ban on corporate spending in federal elections or, instead, carve out a sensible exception.

The broader question is whether Roberts and Justice Samuel Alito will aggravate the Court’s polarization and give plausibility to charges of conservative judicial activism by providing the fourth and fifth votes for demolition of the ban, and of two important precedents as well.

I fear that the two Bush appointees may be poised to do just that. In their comments during the September 9 oral argument in the big campaign finance case, Citizens United v. Federal Election Commission, they seemed to be pushing for an unnecessarily sweeping decision that would enhance the political power of big business corporations (and would almost certainly be extended to unions as well).

Roberts and Alito would thereby be passing up a golden opportunity for principled compromise held out by liberal Justice John Paul Stevens. He credited a National Rifle Association amicus brief, by conservative lawyer Charles Cooper, with suggesting (as its second-favorite outcome) what Stevens called "the wisest narrow solution of the problem before us." That would be excising with a scalpel, not a meat ax, the one serious First Amendment defect in the campaign finance rules now before the Court.

The defect is Congress’s decision in adopting the 2002 McCain-Feingold law to add to its justifiable ban on "electioneering" broadcast ads by business corporations an utterly unjustified amendment by the late Sen. Paul Wellstone, D-Minn., extending the ban to nonprofit ideological corporations. These include the NRA, the Sierra Club, the ACLU, Citizens United, and other large and small groups of like-minded individuals who want to pool their funds to promote their political views. A 1947 law imposed a narrower ban on corporate "express advocacy" for or against candidates.

The Wellstone amendment’s transparent purpose was, as supporters made clear in floor debate, to muffle criticism ("negative attack ads") of themselves and other incumbents. The justices should strike down the Wellstone amendment, as Stevens suggested, while leaving intact the McCain-Feingold ban on "electioneering" and the 1947 law’s ban on "express advocacy" as applied to business corporations.

Solicitor General Elena Kagan urged the justices to uphold the ban on corporate election spending across the board. But she also stressed that a narrow decision striking down the Wellstone amendment would be far better than a broad one unleashing big business corporations.

The justices should strike down the Wellstone amendment, while leaving intact the ban on "electioneering" by business corporations.

Kagan’s main argument was that business spending on campaigns, even when done independently of the candidates, creates the same appearance of indebtedness and quid pro quo corruption that the Court has long held to justify banning direct contributions to candidates from corporations and large (above $2,400) contributions from individuals.

This particular argument has some force but is not entirely persuasive. The reason is that independent election spending by business corporations is not dramatically more corrupting than the independent spending of vast sums by super-rich individuals such as George Soros, which — the Court has properly held — the First Amendment protects.

A better argument against unleashing business corporations is that executives motivated solely by their companies’ economic interests would be pouring into campaign ads money belonging to individual stockholders who had not consented to the executives’ candidate choices and would in many cases disagree with them.

Oil executives, for example, might buy ads praising champions of more offshore drilling. But many of their stockholders no doubt have other political priorities — such as legislation on health care, abortion, civil rights, drug laws, or education — that might well lead them to oppose some of the same candidates.

"When corporations use other people’s money to electioneer," as Kagan explained, "that is a harm not just to the shareholders themselves but a sort of a broader harm to the public," because it distorts the political process to inject large sums of individuals’ money in support of candidates whom they may well oppose.

Roberts sharply challenged this line of argument. "Isn’t it extraordinarily paternalistic," he asked, "for the government to take the position that shareholders are too stupid to keep track of what their corporations are doing and can’t sell their shares or object in the corporate context if they don’t like it? … ‘We the government have to protect you naive shareholders.’ "

Kagan responded that "in a world in which most people own stock through mutual funds [and] through retirement plans … , they have no choice. I think it’s very difficult for individual shareholders to be able to monitor what each company they own assets in is doing."

It would look a lot like judicial activism for the more conservative justices to ram through a 5-4 decision smashing a cornerstone of campaign finance law.

Kagan was right, and Roberts was wrong. Many people own stock through pension funds and index funds as well as other mutual funds that buy dozens or hundreds of stocks. And even people who invest in individual companies rarely have the time or interest to keep track of their political spending, let alone the motivation to sell stock that they bought for economic reasons — and perhaps incur a capital-gains tax — just to express disagreement with the companies’ political ads.

It’s true, as Justice Anthony Kennedy emphasized — and as do many conservatives and some liberal First Amendment mavens — that big companies have expertise on complex policy issues that can add value to the marketplace of ideas. But companies can set up political action committees to support or oppose candidates with money contributed by consenting stockholders. They are also free to spend stockholder funds without limit on "issue ads" and on lobbying.

None of the reasons for banning business-corporation spending on elections apply to nonprofit ideological groups that would spend only individual contributions. (Almost all but the tiniest of such groups find it necessary to incorporate.)

Unlike stockholders, members of nonprofit ideological groups fully expect and desire that their money will go to support political causes and candidates.

And unlike big companies, such groups are often so small that requiring them to set up PACs would impose prohibitively burdensome paperwork and legal costs. Many potential donors to such groups don’t like the idea of being listed in public campaign finance reports.

During the argument, liberal Justice Stephen Breyer argued against unleashing nonprofit ideological groups and corporations, while conservative Antonin Scalia argued in favor of unleashing all corporations by pointing to supposed flaws in the compromise suggested by Stevens. Neither was persuasive.

Breyer warned that nonprofit ideological corporations — many of which accept business contributions — would be used as conduits for business spending on elections. But the law requires groups to put business contributions into segregated accounts in the event that the Wellstone amendment is struck down, so any "conduit" problem would be easy to police.

Scalia stressed that even if nonprofits were exempted, the ban on election spending by business corporations would be "vastly overbroad" because the great majority of them have only one or a few stockholders who would have to consent to any election spending. But, as Kagan pointed out, such stockholders can spend what they wish individually and have no need to do so through their corporations.

In arguing against a broad decision unleashing business corporations, I don’t mean to endorse the alarmist rhetoric of the many liberals who warn that such a decision would swamp our elections under a deluge of corrupting corporate dollars.

After all, no such deluge appears to have materialized in at least 26 states, including California, that already allow businesses to spend money supporting and opposing candidates for state offices — a strategy that many businesses are wary of, lest they make enemies as well as friends.

Advocates of unleashing all corporations also point out that the current ban sits somewhat awkwardly alongside the congressionally conferred (and, I think, constitutionally mandated) license enjoyed by media corporations — including General Electric’s NBC and Disney’s ABC — to spend whatever they please on election advocacy.

Still, unleashing all business corporations might enhance their political power in unhealthy ways. And it would look a lot like judicial activism for the more conservative justices to ram through, for no good reason, a 5-4 decision smashing a cornerstone of campaign finance law; overruling precedents that date to 2003 and 1990; and brushing aside congressional concerns about corruption and its appearance — all in a case that does not even involve a business corporation.

"If Chief Justice Roberts takes that road, his paeans to judicial modesty and unanimity would appear hollow," Jeffrey Rosen, a leading legal journalist who is also a George Washington University law professor, wrote in a September 12 op-ed in The New York Times.

The 54-year-old Roberts seemed to show judicial statesmanship (or so my June 27 column argued) in leading his colleagues to a narrow but near-unanimous decision in June sidestepping an apocalyptic conservative-liberal clash over the constitutionality of a major provision of the Voting Rights Act. He could show statesmanship here, too. Justice Stevens, whose 89-year-old mind seems as nimble as ever, has pointed the way.

This article appeared in the Saturday, September 19, 2009 edition of National Journal.

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That would be the Court’s biggest attack ever on campaign finance laws. It would also be a big mistake. There is no good reason to empower Big Business CEOs to influence elections by spending other people’s money — by which I mean money belonging to ideologically eclectic shareholders, most of whom do not want it invested in election campaigns.

But for all the alarums among liberal election-law experts, I doubt that the Court’s majority is planning to open the floodgates to unlimited campaign spending by Big Business.

I am guessing, and hoping, that the justices will instead use the pending case, Citizens United v. Federal Election Commission, to draw a principled, pragmatic, nonideological line between business corporations and nonprofit advocacy corporations.

Such a decision would uphold the First Amendment rights of citizen groups to spend their individual members’ dues and contributions to support or oppose federal candidates, as long as they don’t serve as conduits for money amassed in the economic marketplace by business corporations.

While many conservatives are all too eager to unleash Big Business to spend on campaigns, most liberals have been all too content to censor nonprofit advocacy corporations. They have also ignored the blatantly self-interested and illegitimate nature of Congress’s decision to draft the campaign finance restrictions so broadly as to hog-tie such advocacy groups, as described below.

The result has been to make it a crime for incorporated citizens groups such as the Sierra Club, the National Rifle Association, organizations supporting and opposing abortion rights, and many more large and small nonprofits to pool the contributions and dues of like-minded members and spend them to support or oppose federal candidates.

Almost all such groups find it necessary to incorporate, for liability limitation and other reasons. But that’s no reason to deny them their First Amendment rights to free speech or "to petition the government for a redress of grievances," which were clearly intended to protect collective as well as individual political activities.

The unfairness of barring campaign spending by these nonprofits is underscored by the fact that some big corporations — such as General Electric (which owns NBC), other broadcast and cable networks, Rupert Murdoch’s News Corp., and The New York Times — are exempted from campaign finance laws because they are, or own, media corporations. George Soros and other wealthy individuals also have First Amendment rights to spend unlimited sums of their own money in campaigns.

The reason that most business corporations (and unions) have properly been barred from making independent expenditures to influence elections is that it would distort the democratic process to open the door for CEOs (or union bosses) to spend vast amounts of shareholders’ (or union members’) money supporting or opposing candidates whom the shareholders (or members) have not meaningfully chosen to support or oppose.

But the same logic simply does not apply to nonprofits that want to spend the money of members who pay dues precisely for the purpose of promoting political causes and in some cases candidates.

"Nonprofit advocacy groups funded by individuals are readily distinguishable from for-profit corporations funded by general treasuries," Stanford University law professor Kathleen Sullivan explained in a friend-of-the-court brief in a somewhat analogous 2007 case. "Speech by nonprofit advocacy groups on behalf of their members does not ‘corrupt’ candidates or ‘distort’ the political marketplace. Instead, it is [campaign finance law] that distorts, leaving wealthy individuals and corporate media conglomerates unfettered in their pre-election broadcast advocacy, and inducing sophisticated corporations to turn to alternatives such as PACs, while thwarting speech by individuals of moderate means who have banded together in grassroots groups to express their views."

Sullivan was arguing for exempting nonprofit advocacy corporations from the 2002 McCain-Feingold campaign finance law’s new restrictions on corporate funding of broadcast, cable, and satellite ads that purport to be "issue ads" but in fact include "electioneering." The justices ignored the business-nonprofit distinction in that case, choosing instead (by 5-4) to adopt an extremely narrow definition of electioneering.

But Sullivan’s logic also argues for exempting nonprofits from the 62-year-old congressional ban on any and all corporate or union campaign spending, even if the sole purpose is to support or oppose federal candidates.

There are two exceptions to this ban — one for specially created political action committees and another for so-called MCFL corporations, named after the Court’s 1986 decision in FEC v. Massachusetts Citizens for Life. But the cost and complexity of setting up a PAC and current law’s exceedingly narrow definition of MCFL corporations make those options impractical for the vast majority of nonprofit grassroots advocacy groups.

Citizens United, a conservative incorporated nonprofit group, made a movie lambasting presidential candidate Hillary Rodham Clinton; the group distributed the film online, on DVD, and in theaters. Citizens United also wanted to show the film on a cable video-on-demand service, but the FEC ruled that the law banned corporate funding of such a direct attack ad on any cable program.

In the initial briefs and during the March 24 oral arguments, the lawyer for Citizens United, Theodore Olson, urged various narrow grounds for overturning the FEC’s ruling, such as holding that video-on-demand programming should not be treated as the kind of "broadcast, cable, or satellite communication" covered by McCain-Feingold.

What grabbed the justices’ attention, however, was a series of admissions by the government’s lawyer, Malcolm Stewart. He said that the government construes the First Amendment so narrowly as to allow Congress, if it chooses, to adopt a hypothetical ban on the financing by any corporation — with the possible exception of media corporations — even of books, articles, signs, or Internet postings (as well as broadcast, cable, and satellite ads) supporting or opposing federal candidates.

That seemed to shock some justices. "If we accept your constitutional argument," Chief Justice John Roberts said, "we’re establishing a precedent that you yourself say would extend to banning [a] book" paid for by a corporation.

These concerns may help explain why on June 29 — in a cryptic order overshadowed by publicity about the 5-4 decision upholding a reverse-discrimination lawsuit by white firefighters — the Court set Citizens United for reargument on September 9.

The order requested new briefs on a big, broad question: whether to overrule "either or both" Austin v. Michigan Chamber of Commerce, a 1990 decision upholding the 1947 ban on independent corporate campaign expenditures, and the part of the 2003 decision in McConnell v. FEC that upheld McCain-Feingold’s ban on corporate funding of electioneering ads.

Does this mean that the five more-conservative justices are preparing to give all corporations the same rights as individuals to spend on elections? Possibly. But I’m betting that they — perhaps joined by one or more of the liberal justices — end up liberating nonprofit advocacy corporations alone.

That would make a great deal of sense, both for the reasons explained by Sullivan and for those evident in the unsavory process by which Congress decided not to exempt nonprofit advocacy corporations from McCain-Feingold’s electioneering provision.

I detailed in an April 28, 2007, column how many senators initially recognized that no justification existed for extending the restrictions on electioneering ads to nonprofit citizen advocacy groups — but then adopted the so-called Wellstone amendment to do just that. By railing against the "attack ads" that had been used mainly by advocacy groups, supporters of that amendment showed that their objective was to censor criticism of themselves, not to prevent corruption or limit Big Business influence.

"This bill… is about slowing political advertising and making sure the flow of negative ads by outside interest groups does not continue to permeate the airwaves," Sen. Maria Cantwell, D-Wash., said on the Senate floor, echoing the views of many.

So it was that Congress slipped a provision carefully designed to muffle ordinary citizens’ criticisms of politicians into what was advertised as a restriction on political spending by Big Business and Big Labor, by making it a federal crime for any corporation (except media corporations) to pay for electioneering ads.

This made a mockery of First Amendment rights that were intended, above all else, to guarantee citizens — acting in groups as well as individually — the freedom to criticize officeholders and candidates.

The justices can and should excise the unconstitutional Wellstone amendment while leaving the restrictions on business corporations and unions intact.

This article appeared in the Saturday, July 11, 2009 edition of National Journal.

The post Campaign Finance And Corporations appeared first on Stuart Taylor, Jr..

The knotty problem was that Congress, in the "issue ad" provision of the 2002 McCain-Feingold campaign finance law, had joined a legitimate goal with an illegitimate one.

The legitimate goal was to prevent business corporations — which have no mandate from their ideologically eclectic stockholders to use their money to meddle in election campaigns — from doing just that.

The illegitimate goal was to censor criticism of elected federal officials (along with other candidates) by nonprofit citizens advocacy groups — ranging from the National Rifle Association to the Sierra Club — whose members pay dues and band together precisely for the purpose of promoting political causes near and dear to them.

Congress quite deliberately, and cynically, accomplished both goals in the same provision (Section 203) by the simple and stealthy expedient of making it a federal crime for any corporation (excepting media corporations) to pay for a broadcast ad that refers to any federal candidate during the run-up to an election.

Because nearly all nonprofit advocacy groups are incorporated, the effect was to extend to such groups a ban ostensibly aimed at companies like General Electric and Dow Chemical. Indeed, it was the nonprofit citizens groups, not Big Business, that had bought many or most of the attack ads that legislators so resent.

Congress thereby made a mockery of the First Amendment’s injunction that "Congress shall make no law … abridging the freedom of speech, or of the press, or the right of the people … to petition the government for a redress of grievances." These provisions were intended above all to guarantee citizens (and groups of citizens) the same right to criticize incumbent officeholders that Section 203 restricts.

The ideal solution would have been for the Supreme Court to uphold the ad ban as applied to business corporations and to carve out an exception for nonprofit advocacy groups.

How many justices proposed doing that? Not one. Instead, in FEC v. Wisconsin Right to Life Inc., the five conservatives in the majority and the four liberal dissenters alike focused on all-or-nothing arguments treating all corporations as fungible.

I discussed the flaws of this approach in my April 28 column. But such is the fog of complexity surrounding this issue that my arguments are worth revisiting now that the justices have once again made a hash of it. It is also worth explaining how Congress sneaked censorship of advocacy groups into a law masquerading as a curb on Big Business and Big Labor.

(The same fog of complexity also prompts me to confess to oversimplification: I will not explain how the majority justices splintered into three separate opinions; why the exemption of political action committees from the issue-ad ban alleviates the burden on citizens groups far less than that on business corporations and unions; or the important difference between campaign contributions and independent campaign spending.)

Some background: Recognizing that business corporations amass vast sums invested by shareholders who (in most cases) do not intend that their money be spent on election campaigns — and that such sums can be used corruptly as quasi-bribes to buy influence — Congress has banned corporate contributions to federal candidates for 100 years. The Court has never questioned this ban. But until McCain-Feingold, corporations were free to spend money on so-called issue ads, meaning ads designed to persuade voters to pressure their representatives to support or oppose legislative measures.

The main reason for this distinction was that issue ads did not have the same potential to buy politicians as campaign contributions (or even independent campaign expenditures). But it is impossible to draw a clear line between issue ads and campaign spending. Especially during the 1990s, companies and citizens groups alike spent many millions on broadcast ads — dubbed "sham issue ads" by critics — that also had the purpose or effect of persuading viewers to vote for or against identified candidates.

The radio ads that Wisconsin Right to Life wanted to run in 2004, for example, urged viewers to "contact Senators Feingold and Kohl [both Wisconsin Democrats] and tell them to oppose the filibuster" of some of President Bush’s judicial nominees. This was an issue ad because the group no doubt wanted the filibuster to stop. But it was also intended to persuade viewers to vote against Feingold, who was up for re-election.

Indeed, in the 1990s issue ads became a way for business corporations as well as some nonprofits to circumvent the restrictions on corporate campaign spending. By the same token, criminalizing such circumvention would inevitably chill genuine issue advertising as well. And that’s what Congress chose to do in Section 203’s ban on pre-election broadcast ads that refer to candidates.

Many members recognized that no justification existed for extending this ban to nonprofit citizens advocacy groups. So the Senate adopted the so-called Snowe-Jeffords amendment to allow such groups to buy issue ads so long as they used only membership dues and contributions and thus avoided serving as conduits for business or union money.

But then the late Sen. Paul Wellstone, D-Minn., proposed an amendment to override Snowe-Jeffords and censor nonprofit advocacy groups too. Supporters of this amendment made it clear, by railing against "negative attack ads," that their goal was not to prevent corruption but to stop citizens groups such as the NRA from criticizing them.

A different bunch of (mostly Republican) senators — who opposed all curbs on issue ads, and perhaps wanted to gain support for their own campaigns in the form of business-funded or union-funded issue ads — cynically put the Wellstone amendment over the top. These senators believed (and McCain-Feingold’s sponsors warned) that it was so obviously unconstitutional that it would provoke the Supreme Court to strike down the entire issue-ad provision.

They guessed wrong. In the first ruling on Section 203, in 2003, all nine justices ignored both the unsavory history of the Wellstone amendment and the large distinction between citizens groups and business corporations. By 5-4, the Court upheld the issue-ad ban across the board.

Then, in the June 25 decision, again by 5-4, the justices went the other way, all but overruling the 2003 decision and rendering Section 203’s issue-ad ban unenforceable across the board. This sharp shift reflected the replacement of Justice Sandra Day O’Connor, who (to the surprise of many) wrote the 2003 decision, by Justice Samuel Alito, who voted with the majority in the new decision.

The two decisions had one thing in common: All nine justices ignored the Wellstone amendment and took an all-or-nothing approach, lumping nonprofit citizens groups together with corporations such as General Electric and Dow Chemical.

You might think that somebody on the Court would have looked for a way to salvage the sensible restrictions on business corporations and unions while striking down Congress’s cynical imposition of the same restrictions on nonprofit advocacy groups. But nobody did. Why not?

One reason was the facts of the case: Wisconsin Right to Life had spent business contributions along with members’ dues on its issue ads and made common cause with business corporations; this enabled its adversaries to portray the group as a conduit. Another reason was that the Court’s precedents have usually (if not always wisely) recognized no distinction between the free-speech rights of business corporations and those of individuals and citizens groups.

But the main reason for the all-or-nothing approach of justices on both sides, in my view, was the same ideological polarization that obstructs pragmatic compromise in Congress.

While the majority justices noted in passing the ad ban’s special burdens on nonprofit advocacy groups, they proceeded to gut Section 203 as it applied to business corporations. They thus fetishized corporate free-speech rights to the point of opening the door wide to business corporations (and unions) that seek to misuse shareholders’ (and workers’) money to buy political influence.

And although the four liberal dissenters stressed the need to curb "the corrosive and distorting effects of immense aggregations of wealth" on campaigns, they also unhesitatingly blessed Section 203’s censorship of citizens groups. They are so determined to uphold any and all curbs on big money in politics that they are willing to throw the free-speech baby out with the bathwater.

Not all liberals are so blinkered. "Here, Congress has passed a law under which, for example, it can be a federal crime for the ACLU to spend money criticizing members of Congress," wrote Walter Dellinger, the former acting solicitor general, in Slate. "How can that possibly not raise a most profound constitutional issue?"

The post Opening Argument – Polarizing Campaign Finance Law appeared first on Stuart Taylor, Jr..

In a nutshell, the problem with the Court’s approach to the 2002 law’s ban on so-called sham issue ads by nonprofit advocacy corporations is that the justices are focusing on the word "corporations" when they should be focusing on "nonprofit."

A typical issue ad might say something like "tell Senator Jones to stop filibustering judicial nominees," or "tell Senator Jones to vote for reproductive choice." Groups paying to air such ads almost always want the targeted lawmaker to vote as urged or to be defeated in the next election—or both. Seeking to determine which purpose predominates—the focus of the current debate—is a mug’s game.

McCain-Feingold’s ban on such issue ads has been touted as necessary to keep big, bad corporations and labor unions from pouring money into election campaigns. Corporations and unions have long been banned from doing this directly, through contributions to candidates, and should not be allowed to do it indirectly either, the argument goes.

So far, so good. It would distort the democratic process to allow Fortune 500 CEOs and union bosses to spend large sums of stockholders’ and members’ money to support candidates whom the stockholders and members might not choose to support. There is no First Amendment right to spend someone else’s money on electioneering ads.

But Congress also swept into its regulatory net nonprofit, grassroots advocacy groups such as the Sierra Club, the National Rifle Association, the American Civil Liberties Union, and groups supporting or opposing abortion rights. Almost all such groups find it necessary to incorporate for liability-limitation and other reasons. And most accept donations from business corporations. But they pose no real risk of pouring Big Business and union money into election campaigns. (They would be in big trouble with the Internal Revenue Service if they did.) When these groups seek to run broadcast ads, their purpose is to pool the resources of like-minded members to participate in local or national political discourse. The First Amendment calls that sort of thing "the freedom of speech, [and] the right of the people … to petition the government for redress of grievances."

So why did Congress trash these groups’ freedoms of speech and association? Why threaten them with criminal prosecution if they dare criticize any federal candidate in a broadcast ad near Election Day?

The reason is that Congress managed to smuggle into a supposed restriction on political spending by Big Business and unions a provision that was carefully designed to insulate lawmakers from criticism by ordinary citizens.

"This bill … is about slowing political advertising and making sure the flow of ads criticizing us by groups of our constituents does not continue to permeate the airwaves," Sen. Maria Cantwell, D-Wash., said on the Senate floor during the McCain-Feingold debate, echoing the views of many colleagues. Actually, that’s not quite the way the senator put it. But it’s pretty close; I edited out only her spin. Cross out the eight words that I italicized, substitute "negative attack ads by outside interest groups," and you’ve got Cantwell’s exact language.

The critical distinction between nonprofit advocacy corporations and Big Business corporations went unmentioned during the April 25 oral argument before the Court. Rather, the focus was on the inescapably elusive distinction between broadcast ads designed to help or hurt political candidates, which all corporations and unions are barred from buying (except through costly and cumbersome political action committees), and ads designed to influence incumbents’ votes on pending issues, which all corporations are theoretically free to buy in unlimited amounts.

Except that no corporation or union is really free to buy issue ads—not if they so much as mention the name of any congressional or presidential candidate during blackout periods that cover large parts of every election year.

The McCain-Feingold law bans any corporation or labor union from buying "electioneering" ads, defined to include any broadcast ads that name any federal candidate and are aired within 60 days of a general election or 30 days of a primary in the candidate’s district or state. In practice, this blackout period spans much of the map of the United States during large portions of the political calendar, because there are so many primary elections in different states on different dates.

In the case now before the Court, Wisconsin Right to Life sought in 2004 to run three television ads criticizing a Senate filibuster against President Bush’s judicial nominees and asking viewers to urge the state’s two Democratic senators to give the nominees up-or-down votes. One of the senators, Russell Feingold, was running for re-election; the other, Herb Kohl, was not. The ads were to run less than 60 days before the November election but did not mention the election or suggest whether Feingold should be re-elected. The Federal Election Commission ruled that these ads would be barred as electioneering communications. The group sued to test the constitutionality of this ban.

During the April 25 argument, Solicitor General Paul Clement and Washington lawyer Seth Waxman (who was President Clinton’s last solicitor general) argued that these ads were clearly designed to get people to vote against Feingold and, thus, were properly banned as "electioneering communications." That’s plausible. On the other side, campaign finance expert James Bopp Jr. of Indiana argued that the ads’ immediate purpose was to get senators to stop filibustering judicial nominees. That’s plausible, too.

Bopp also said that if the law banned these ads as "electioneering," then the law must be unconstitutional. The smart money seems to be betting that the Court will so rule, 5-4. Some of its more conservative justices leaned to the anti-regulation side, with Justice Antonin Scalia declaring: "This is the First Amendment. We don’t make people guess whether their speech is going to be allowed by Big Brother or not." Meanwhile, the four more-liberal justices took the pro-regulation side, with Justice Stephen Breyer declaring, "If you open the gates and say corporations and rich givers or whatever can contribute [to candidates] by writing these ads and paying for them … forget the rule that says corporations can’t contribute."

And so it went, with liberals stressing "electioneering" and conservatives stressing "issue." It was all rather tiresome. Of course the anti-abortion group and its members wanted Feingold to stop filibustering. And of course they wanted viewers to vote against him. Why shouldn’t they? "Is that called democracy?" Justice Anthony Kennedy helpfully asked Bopp at one point.

Instead of this sterile debate over how much electioneering can be slipped between the lines of an issue ad, the justices should resolve this case as suggested by Kathleen Sullivan, a distinguished professor and former dean of Stanford Law School, in a brilliantly logical friend-of-the-court brief on behalf of Wisconsin Right to Life.

"Nonprofit advocacy groups funded by individuals are readily distinguishable from for-profit corporations funded by general treasuries," Sullivan’s brief explains. And "speech by nonprofit advocacy groups on behalf of their members does not ‘corrupt’ candidates or ‘distort’ the political marketplace. Instead, it is Section 203 [of McCain-Feingold] that distorts, leaving wealthy individuals and corporate media conglomerates [which the law exempts] unfettered in their pre-election broadcast advocacy, and inducing sophisticated corporations to turn to alternatives such as PACs, while thwarting speech by individuals of moderate means who have banded together in grassroots groups to express their views."

Exactly right. Sullivan’s brief also shows in compelling detail how McCain-Feingold "effectively forecloses … small, nonprofit, grassroots advocacy groups altogether from running pre-election broadcast issue ads." The safety valves touted by regulators are largely illusory. Although nonprofits that meet certain FEC criteria are exempt from regulation, those criteria are virtually impossible to meet; the "daunting legal, financial, and administrative difficulties of forming a PAC are prohibitive for most small grassroots advocacy groups"; and suing for advance judicial approval is "expensive, protracted, and uncertain."

Sullivan’s brief also quotes a book that seems to support her approach: "Active liberty is particularly at risk when law restricts speech directly related to the shaping of public opinion, for example, speech that takes place in areas related to politics and policy-making by elected officials."

The book is Active Liberty. The author is Stephen Breyer.

The post “Issue Ads” and Common Sense appeared first on Stuart Taylor, Jr..

In a nutshell, the problem with the Court’s approach to the 2002 law’s ban on so-called sham issue ads by nonprofit advocacy corporations is that the justices are focusing on the word "corporations" when they should be focusing on "nonprofit."

A typical issue ad might say something like "tell Senator Jones to stop filibustering judicial nominees," or "tell Senator Jones to vote for reproductive choice." Groups paying to air such ads almost always want the targeted lawmaker to vote as urged or to be defeated in the next election — or both. Seeking to determine which purpose predominates — the focus of the current debate — is a mug’s game.

McCain-Feingold’s ban on such issue ads has been touted as necessary to keep big, bad corporations and labor unions from pouring money into election campaigns. Corporations and unions have long been banned from doing this directly, through contributions to candidates, and should not be allowed to do it indirectly either, the argument goes.

So far, so good. It would distort the democratic process to allow Fortune 500 CEOs and union bosses to spend large sums of stockholders’ and members’ money to support candidates whom the stockholders and members might not choose to support. There is no First Amendment right to spend someone else’s money on electioneering ads.

But Congress also swept into its regulatory net nonprofit, grassroots advocacy groups such as the Sierra Club, the National Rifle Association, the American Civil Liberties Union, and groups supporting or opposing abortion rights. Almost all such groups find it necessary to incorporate for liability-limitation and other reasons. And most accept donations from business corporations. But they pose no real risk of pouring Big Business and union money into election campaigns. (They would be in big trouble with the Internal Revenue Service if they did.) When these groups seek to run broadcast ads, their purpose is to pool the resources of like-minded members to participate in local or national political discourse. The First Amendment calls that sort of thing "the freedom of speech, [and] the right of the people … to petition the government for redress of grievances."

So why did Congress trash these groups’ freedoms of speech and association? Why threaten them with criminal prosecution if they dare criticize any federal candidate in a broadcast ad near Election Day?

The reason is that Congress managed to smuggle into a supposed restriction on political spending by Big Business and unions a provision that was carefully designed to insulate lawmakers from criticism by ordinary citizens.

"This bill … is about slowing political advertising and making sure the flow of ads criticizing us by groups of our constituents does not continue to permeate the airwaves," Sen. Maria Cantwell, D-Wash., said on the Senate floor during the McCain-Feingold debate, echoing the views of many colleagues. Actually, that’s not quite the way the senator put it. But it’s pretty close; I edited out only her spin. Cross out the eight words that I italicized, substitute "negative attack ads by outside interest groups," and you’ve got Cantwell’s exact language.

The critical distinction between nonprofit advocacy corporations and Big Business corporations went unmentioned during the April 25 oral argument before the Court. Rather, the focus was on the inescapably elusive distinction between broadcast ads designed to help or hurt political candidates, which all corporations and unions are barred from buying (except through costly and cumbersome political action committees), and ads designed to influence incumbents’ votes on pending issues, which all corporations are theoretically free to buy in unlimited amounts.

Except that no corporation or union is really free to buy issue ads — not if they so much as mention the name of any congressional or presidential candidate during blackout periods that cover large parts of every election year.

The McCain-Feingold law bans any corporation or labor union from buying "electioneering" ads, defined to include any broadcast ads that name any federal candidate and are aired within 60 days of a general election or 30 days of a primary in the candidate’s district or state. In practice, this blackout period spans much of the map of the United States during large portions of the political calendar, because there are so many primary elections in different states on different dates.

In the case now before the Court, Wisconsin Right to Life sought in 2004 to run three television ads criticizing a Senate filibuster against President Bush’s judicial nominees and asking viewers to urge the state’s two Democratic senators to give the nominees up-or-down votes. One of the senators, Russell Feingold, was running for re-election; the other, Herb Kohl, was not. The ads were to run less than 60 days before the November election but did not mention the election or suggest whether Feingold should be re-elected. The Federal Election Commission ruled that these ads would be barred as electioneering communications. The group sued to test the constitutionality of this ban.

During the April 25 argument, Solicitor General Paul Clement and Washington lawyer Seth Waxman (who was President Clinton’s last solicitor general) argued that these ads were clearly designed to get people to vote against Feingold and, thus, were properly banned as "electioneering communications." That’s plausible. On the other side, campaign finance expert James Bopp Jr. of Indiana argued that the ads’ immediate purpose was to get senators to stop filibustering judicial nominees. That’s plausible, too.

Bopp also said that if the law banned these ads as "electioneering," then the law must be unconstitutional. The smart money seems to be betting that the Court will so rule, 5-4. Some of its more conservative justices leaned to the anti-regulation side, with Justice Antonin Scalia declaring: "This is the First Amendment. We don’t make people guess whether their speech is going to be allowed by Big Brother or not." Meanwhile, the four more-liberal justices took the pro-regulation side, with Justice Stephen Breyer declaring, "If you open the gates and say corporations and rich givers or whatever can contribute [to candidates] by writing these ads and paying for them … forget the rule that says corporations can’t contribute."

And so it went, with liberals stressing "electioneering" and conservatives stressing "issue." It was all rather tiresome. Of course the anti-abortion group and its members wanted Feingold to stop filibustering. And of course they wanted viewers to vote against him. Why shouldn’t they? "Is that called democracy?" Justice Anthony Kennedy helpfully asked Bopp at one point.

Instead of this sterile debate over how much electioneering can be slipped between the lines of an issue ad, the justices should resolve this case as suggested by Kathleen Sullivan, a distinguished professor and former dean of Stanford Law School, in a brilliantly logical friend-of-the-court brief on behalf of Wisconsin Right to Life.

"Nonprofit advocacy groups funded by individuals are readily distinguishable from for-profit corporations funded by general treasuries," Sullivan’s brief explains. And "speech by nonprofit advocacy groups on behalf of their members does not ‘corrupt’ candidates or ‘distort’ the political marketplace. Instead, it is Section 203 [of McCain-Feingold] that distorts, leaving wealthy individuals and corporate media conglomerates [which the law exempts] unfettered in their pre-election broadcast advocacy, and inducing sophisticated corporations to turn to alternatives such as PACs, while thwarting speech by individuals of moderate means who have banded together in grassroots groups to express their views."

Exactly right. Sullivan’s brief also shows in compelling detail how McCain-Feingold "effectively forecloses … small, nonprofit, grassroots advocacy groups altogether from running pre-election broadcast issue ads." The safety valves touted by regulators are largely illusory. Although nonprofits that meet certain FEC criteria are exempt from regulation, those criteria are virtually impossible to meet; the "daunting legal, financial, and administrative difficulties of forming a PAC are prohibitive for most small grassroots advocacy groups"; and suing for advance judicial approval is "expensive, protracted, and uncertain."

Sullivan’s brief also quotes a book that seems to support her approach: "Active liberty is particularly at risk when law restricts speech directly related to the shaping of public opinion, for example, speech that takes place in areas related to politics and policy-making by elected officials."

The book is Active Liberty. The author is Stephen Breyer.

The post Opening Argument – ‘Issue Ads’ and Common Sense appeared first on Stuart Taylor, Jr..

But the December 10 decision, McConnell v. FEC, also upheld some less widely advertised provisions of the law (best known as McCain-Feingold), with more-alarming implications for the core First Amendment right to criticize the government and the moderating role of parties in our political system. Among them:

– Nonpartisan advocacy groups, such as the Sierra Club, NARAL Pro-Choice America, the National Rifle Association (as well as business corporations and unions), and the American Civil Liberties Union, would risk criminal prosecution if they placed broadcast ads close to election time criticizing any federal candidate, including President Bush or a member of Congress.

– Any movement to create a new political party — say, one for moderate centrists — would be doomed by a provision making it a federal crime for any individual to give more than $25,000 a year to a party. Ross Perot’s $8 million gift to build the Reform Party in 1996, for example, could land him in prison if repeated now.

– The major political parties will lose money and clout as high-rollers who can no longer give the parties unlimited soft-money donations open their wallets instead to less broad-based, less accountable, more ideologically extreme groups, such as the Bush-bashing America Coming Together and its emerging conservative counterparts. Liberal billionaire George Soros has already given $10 million to ACT.

– McCain-Feingold probably reduces challengers’ already-slim chances of defeating incumbents, whose natural advantages loom larger as party money becomes scarcer. Some of the fine print even "targets for prohibition certain categories of campaign speech that are particularly harmful to incumbents," as Justice Antonin Scalia detailed in one of the four dissents.

– While gigantic media corporations such as NBC (owned by General Electric), ABC (owned by Disney), Fox (controlled by Rupert Murdoch), and The New York Times (controlled by the Sulzberger family) can spend as much as they please promoting their favored candidates, other corporations or labor unions cannot spend a dime.

Those are among the reasons I fear Scalia may prove correct in seeing this as "a sad day for the freedom of speech." I am less alarmed than he is, and would uphold more of the law than he would. But these 278 pages of opinion fill me with foreboding about how much further the five more liberal justices may be prepared to go down the road to censorship. Now including Sandra Day O’Connor, who co-authored the main opinion for the 5-4 majority, the liberals seem all too comfortable replacing the First Amendment’s categorical command that "Congress shall make no law … abridging the freedom of speech" with hundreds of pages of regulations abridging the freedom of speech.

This is not to advocate an absolutist interpretation of the First Amendment. The Court’s seminal decision in Buckley v. Valeo, in 1976, was reasonable to uphold caps on contributions to federal candidates. It held that large contributions buy access to candidates; that access often blends into influence over official decisions; that this creates at least an appearance of corruption; and that the need to prevent that appearance outweighed donors’ free-speech interest in giving unlimited amounts.

McConnell properly extended Buckley by upholding McCain-Feingold’s ban on gifts of soft money by corporations, unions, and wealthy individuals to national political parties. Such large gifts — sometimes earmarked for the candidates who solicit them — can be at least as corrupting as direct contributions to candidates. Former Sen. Alan Simpson, R-Wyo., explained why in a declaration quoted by the Court:

"Who … can seriously contend that a $100,000 donation does not alter the way one thinks about — and quite possibly votes on — an issue? … When you don’t pay the piper that finances your campaigns, you will never get any more money from that piper. Since money is the mother’s milk of politics, you never want to be in that situation." The court also stressed that "in 1996 and 2000, more than half of the top 50 soft-money donors gave substantial sums to both major national parties, leaving room for no other conclusion but that these donors were seeking influence, or avoiding retaliation."

The dissenters argued that the soft-money ban should not apply to minor parties (because they have so little influence to sell) and that the curbs on soft money for state parties are too broad, interfering unnecessarily in their internal workings. The majority responded that a broad ban was necessary to prevent circumvention. Perhaps. But the majority’s readiness to resolve such close calls in favor of curbing speech is not reassuring.

McCain-Feingold’s ban on the buying of "electioneering" ads by business corporations and unions — even if they act independently of any candidate or political party — raises an even closer question. ("Electioneering communications" are defined to include ads that criticize, praise, or otherwise identify any federal candidate and are aired within 60 days before a general election or 30 days before a primary in the candidate’s district or state.)

This ban on independent spending for ads does not really fit the anti-corruption rationale. Nor can it be justified by the Court’s reference to "the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form." There is nothing inherently corrosive or distorting about corporate or union money.

But there is something distorting about spending large sums of corporate or union money to support candidates whom stockholders or union members would not choose to support. It’s their money. And there is no First Amendment right to spend someone else’s money on electioneering ads, any more than there’s a right to contribute someone else’s money to federal candidates, which Congress barred corporations from doing in 1907 and unions from doing in 1948.

So the ban on electioneering ads by business corporations and unions may be valid. But the justices were quite wrong to brush aside the powerful arguments by the ACLU, the NRA, and others for striking down this ban, as applied to nonprofit advocacy corporations. Unlike business corporations, these nonprofits exist to promote their members’ political views. They help people of ordinary means pool their resources to participate in the political discourse of the nation by (among other things) buying electioneering ads. Forcing such nonprofits to do any election-related spending through cumbersome political action committees hinders this pooling of resources and thus stifles much political speech.

This was not an unintended consequence. It was one of McCain-Feingold’s central purposes. The nonprofit advocacy groups place many of the "negative attack ads" that especially enrage members of Congress. "This bill … is about slowing political advertising and making sure the flow of negative ads by outside interest groups does not continue to permeate the airwaves," as Sen. Maria Cantwell, D-Wash., said on the Senate floor.

Try crossing out the phrase "negative ads" in that quote and substituting "free speech" or "criticism of us." Then read it again. Could a more direct attack on the First Amendment be imagined?

We have not seen the last such attack. McCain-Feingold’s champions have long described it as only a modest first step. Looking down the road, Justice Clarence Thomas wondered in dissent what would stop "a future Congress from determining that the press is ‘too influential,’ and that the ‘appearance of corruption’ is significant when media organizations endorse candidates or run ‘slanted’ or ‘biased’ news stories … ?" That may seem politically unrealistic. But Scalia offered another forecast that seems all too plausible:

"The first instinct of power is the retention of power, and, under a Constitution that requires periodic elections, that is best achieved by the suppression of election-time speech…. The federal election campaign laws, which are already (as today’s opinions show) so voluminous, so detailed, so complex, that no ordinary citizen dare run for office, or even contribute a significant sum, without hiring an expert adviser in the field, can be expected to grow more voluminous, more detailed, and more complex in the years to come — and always, always, with the objective of reducing the excessive amount of speech."

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The four more-liberal justices seem supportive of the law also known as McCain-Feingold. The four more-conservative justices seem hostile to it. So the nation’s most powerful woman, who was inscrutable during the arguments, will probably play her usual role of casting the deciding vote. Here’s what she should do:

The justices should uphold BCRA’s prohibition of unlimited contributions by corporations, unions, and wealthy individuals of unregulated "soft money" — money that has more often been redolent of the shakedown than of the freedom of speech — to political parties. They should also bless the ban on the buying by business corporations and labor unions of what BCRA calls "electioneering" advertisements. But the justices should strike down Congress’s extension of this "electioneering" ban to nonprofit ideological corporations such as the National Rifle Association, the Sierra Club, NARAL, the National Right to Life Committee, and the American Civil Liberties Union.

These outcomes would be faithful to the crucial distinction that has run through the Court’s campaign finance decisions since Buckley v. Valeo, in 1976: Caps on large campaign contributions, and other regulations carefully designed to curb the buying and selling of influence, have a relatively modest impact on First Amendment rights and serve the compelling purpose of avoiding corruption and its appearance. But absent some plausible anti-corruption purpose, curbs on campaign spending — whether to muffle the political voices of the wealthy, or to shield incumbents from criticism — are generally unconstitutional.

It is not the Supreme Court’s job to decide whether the soft-money ban is wise policy, or whether, as I wrote in 2001, "the cure of legislating political purity and purging private money will always be worse than the disease." (I hereby amend that to "can be worse.") The policy question turns on whether the hoped-for anti-corruption benefit will end up justifying the feared cost of weakening our political parties, which have the unique virtue of being broad-based coalitions familiar (and thus accountable) to the voters.

The proliferation of gimmicks to evade BCRA’s soft-money ban is neither surprising nor encouraging. Most of them channel unlimited contributions to new, often obscure organizations that are not technically political parties but provide similar support to candidates. To the extent that the soft-money ban merely substitutes such groups for the parties in the influence-peddling bazaar, while diverting other donors to ideologically driven interest groups, it could make our politics less transparent and more polarized but no less corrupt.

On the other hand, the many soft-money donors who ponied up reluctantly, under pressure from candidates, may now keep their money. And there are signs that the soft-money ban may do less damage to the parties than some of us have feared. The national party committees raised more in hard money alone ($160 million) in the first six months of this year than their $138 million in combined hard and soft money at the same point in 1999, during the last presidential election cycle. No longer able to milk a few huge donors, they have rounded up hard-money contributions ranging from a few dollars up to BCRA’s $25,000-per-donor-per-year cap. Perhaps William Brock, the former senator and Republican National Committee chairman, was right when he wrote, "Far from reinvigorating the parties, soft money has simply strengthened certain candidates and a few donors, while distracting parties from traditional and important grassroots work."

Wise or not, the soft-money ban is consistent with Buckley’s rule that nobody has a right to make unlimited political contributions either to candidates or to parties. Opponents have argued that BCRA’s soft-money provisions unconstitutionally curb campaign spending — and also intrude too deeply into the affairs of state and local political parties (which in some states can still collect soft money for state and local elections) — by barring various ways of soliciting, spending, and transferring soft money between state and federal parties. But these provisions appear to be reasonable measures to prevent circumvention of the basic anticorruption purpose of keeping party soft money out of federal elections.

The constitutionality of BCRA’s new restrictions on "electioneering" ads by business corporations and unions is a closer call. Congress has barred federal campaign contributions by corporations since 1907, and by unions since 1948. The campaign reforms of 1974 sought to go further by barring them from buying independent, election-related ads, while allowing them to set up political action committees that solicit limited individual donations for election-related contributions and spending.

But the Supreme Court held that independent election-related spending had less corruptive potential than large contributions, and that the 1974 provision was so vague that it must be very narrowly construed. In its so-called "express advocacy" rule, the Court quite deliberately made it legal for corporations and unions to buy ads designed to help or hurt federal candidates as long as they avoided words such as "vote for Jones," "defeat Smith," or the like. By the mid-1990s, unions and corporations, mostly of the nonprofit ideological variety, were spending many millions on pre-election ads promoting or attacking federal candidates, sometimes in the natural course of advocating positions on legislative issues, sometimes in the guise of doing so. These are what critics call "sham issue ads."

BCRA sought to avoid the trap of unconstitutional vagueness by outlawing corporate and union "electioneering communications," which it defined to mean any broadcast ad naming a federal candidate that is aired in his or her election district (or state, in the case of senators) within 60 days before a general election or 30 days before a primary.

It is this provision that the Court should uphold as applied to business corporations and unions but strike down as applied to the spending of membership dues and individual contributions by nonprofit ideological corporations.

Why this distinction? Because, for reasons that the justices have never articulated very clearly, Congress had a legitimate reason for restricting the election-related speech of business corporations and unions, but not that of nonprofit ideological corporations. The reason is not that business corporations and unions have such huge amounts of money that they could exercise undue clout by flooding the political marketplace; so do billionaires and other wealthy individuals, who nonetheless have a First Amendment right to spend as much as they please on independent election-related speech.

Rather, what distinguishes wealthy individuals and nonprofit ideological corporations alike from business corporations and unions is that the latter often have incentives to curry the favor of elected officials and candidates for whose support many of their stockholders and union members would not want their money spent. There is no First Amendment right to spend someone else’s money on electioneering.

Nonprofit ideological corporations, on the other hand, exist to promote the political views of their members, and their ads generally reflect those views. Indeed, such corporations give voice to people of ordinary means who can participate in the political discourse of the nation only by pooling their resources. Requiring such corporations to use cumbersome PACs for election-related spending severely limits the amounts of money they can raise and thus inhibits this pooling of resources.

That is exactly what Congress was trying to do. BCRA’s legislative history shows clearly that the ban on "electioneering" ads by nonprofit ideological corporations was designed not to prevent corruption or its appearance, but rather to protect incumbents from the "negative attack ads" that many members so passionately denounced in their floor statements.

Attack ads are, to be sure, often crude and unfair. But in the words of the 1964 decision in New York Times v. Sullivan, the First Amendment reflects "a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." Congress’s effort to squelch unpleasantly sharp attack ads represents an unambiguous assault on the freedom of speech.

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