Issue Advocacy

In the nearly two years since the Citizens United decision, the progressive movement has used every avenue it can find to adapt anti-corruption regulation into a force for intimidating corporations out of engaging in independent expenditures.

One of the outcomes of this tactic has been a rise in activist investing.  Taking advantage of SEC regulation, activist shareholders buy the requisite value of stock needed to introduce shareholder proposals and propose burdensome disclosure rules targeting political expenditures.

Reform groups can hem and haw all day about the merits of various disclosure regimes, but at the end of the day, it would be disingenuous not to acknowledge that these proposals are in the service of cultivating political power and control.

The Montana Supreme Court on December 30 launched a headlong frontal assault on the U.S. Supreme Court’s opinion in Citizens United v. FEC. We predict that the U.S. Supreme Court will make quick work of this frivolous and misguided opinion.

We’ve noted before the continuing attack against Charles and David Koch, wealthy brothers who donate generously to libertarian and limited government causes, by Common Cause and the Center for American Progress (CAP), among others.

Today the ‘Action Fund’ of CAP released the latest, and certainly a contender for lamest, installment in this crusade against the right of private citizens to support causes that are out of favor with the progressive community.

Titled The Koch Brothers: What You Need to Know About the Financiers of the Radical Right, the document (I just can’t call anything this silly a report) purports to “shed light” on donations by the Koch brothers, Koch Industries, Koch PAC, and something called the “Koch Network.” It notes that “Charles and David Koch would prefer to keep their influence behind the scenes” and credits their own efforts in ferreting out the information that “exposes” the Koch’s agenda and efforts to support that agenda.

But after reviewing the report, it’s pretty clear that it’s just a recycling of previous charges against the brothers, based on information readily available to the public.

Last year I wrote about the New Hampshire case of Green Mountain Realty v. Fifth Estate Tower, a case testing whether speech by a business relating to a town election warranted First Amendment rights. As I summarized then:

The case… revolves around two competing proposals in the small New Hampshire town of Wolfeboro for cell phone tower placements. Fifth Estate had one idea about where to build a new tower, [Green Mountain Realty (GMR)] had a different idea, and the matter was to be decided in a vote of the townspeople.

…Both Fifth Estate and GMR engaged in the most basic of political speech possible – mailings, newspaper ads, radio spots, handing out fliers, and speaking out in town meetings… On election day, the voters decided against the GMR proposals (Fifth Estate’s had been previously rejected as well)…

…GMR decided to sue Fifth Estate over the content of some of their statements and mailings against the [GMR] proposal, under the theory that Fifth Estate’s statements on the matter were regulated commercial speech subject to the limitations of the state Consumer Protection Act.

As expected, Dan Schnur announced today that the era of “magic words” in California is over.

At a Fair Political Practices Commission hearing commissioners voted to direct staff to craft a regulation that would interpret the definition of “express advocacy”—ads containing an appeal to vote for or against a candidate—as including the “functional equivalent” of express advocacy.

As CCP has explained, Schnur’s reasoning is “fundamentally flawed.”

The American Civil Liberties Union today sent to the U.S. Senate a letter urging them to vote against the DISCLOSE Act when it comes up for a vote next week (or at least is scheduled to). A few of the key points raised by the letter:

1. The DISCLOSE Act fails to preserve the anonymity of small donors, thereby especially chilling the expression rights of those who support controversial causes.

…Anonymity is important to many supporters of organizations that advocate for both popular and controversial causes. This is the case for even a longstanding and well-known organization such as the ACLU, as it surely is for groups of many other viewpoints, sizes, and histories. The pursuit of anonymity is not merely a matter of preference or convenience for individuals who support controversial movements. The harassment and attacks on members of the civil rights movement, for example, show that anonymity can be a matter personal safety.

Reports are that the House Rules Committee meeting set today to craft the rule for considering the DISCLOSE Act has been postponed — again.

At some point, one must stop bailing water and abandon the ship.  Grab your life jackets.