Is JEB Defecting from the Plutocracy?

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Former Fla. Gov. Jeb Bush speaks at the Hispanic Leadership Network conference, Thursday, April 18, 2013 in Coral Gables, Fla. Bush says he applauds the comprehensive reform bill formally unveiled Thursday in Washington and told conference attendees the bill tries to balance the immigrant experience and respect for the rule of law. (AP Photo/Wilfredo Lee)

Plutocrats bought one good political tactic for their over a hundred million dollar investment in Jeb Bush. Jeb’s operatives who had him opposing the reviled Citizens United decision on the same day of the New Hampshire primary paid off. This made him the only Republican to contest Trump for support from the non-partisan majority of voters who oppose the Court-made corruption of politics. The timing worked. There was insufficient time for critics to analyze and explain how Bush’s plan is even worse than Citizens United.

But let’s try anyway, before he or another candidate uses the same ploy again.

The headline in The Hill read “Bush says he’d ‘eliminate’ Citizens United” Wait a minute, one asked. Is that “JEB,” John Ellis Bush, brother of George W, scion of the Bush-Walker line of Wall Street plutocrats going back to Prescott? Yes it is.

Then he cannot possibly be talking about the notorious Supreme Court decision which has been marketed as the fount of all things plutocratic. Is he instead talking about eliminating the organization Citizens United for supporting an opponent in the primary? Not necessarily. But they sure do not like him now, whatever they thought before. Citizens United’s president since 2000, David M. Bossie, put out a statement that Jeb “has embraced the left’s view of the First Amendment. Jeb Bush now agrees with Hillary Clinton and Bernie Sanders to limit free speech in America.”

That would certainly be a newsworthy conversion experience. Did a Bush really find anti-plutocracy religion on the road to Manchester?

There are two issues that must be understood to analyze this apparent apostasy.

First, Citizens United on close inspection is really not what it has been hyped up to be.

Second, what Bush has really recommended is not so much to “eliminate” the corrupt Citizens United, but rather to legalize the far worse de facto regime that the case has enabled.

1. Hype. Citizens United is really two different decisions. One is narrowly legal. The other is broadly political and therefore inherently illegitimate. The judiciary is supposed to decide cases, which is what the legal part of the Citizens United decision did. But the political part of the decision illegitimately announced a set of broad new political principles to govern future cases, applied most notably in Arizona Free Enterprise Club (2011) and McCutcheon (2014).

The proposition that many liberal Democrat organizations have raised money for, commonly to cover the costs of raising even more money, is that a constitutional amendment is needed to overturn Citizens United. Put aside for now the over-simplistic advocacy of the single most difficult policy tool in American jurisprudence, as if it were prerequisite for reforms already permitted under the current unamended Constitution. Here we are only assessing Citizens United as the object of such albeit counterproductive advocacy, rather than directing political energies at Buckley v Valeo (1976).

It was Buckley which first established, with empty shell-game logic, that money is speech. It is that doctrine the Supreme Court uses to justify its interference with campaign finance law in every case, including Citizens United. Overturn Buckley and all the Court’s corrupting decisions fall. But overturn Citizens United?

Overturning Citizens United” by law or amendment as Bush proposed could have a very narrow effect. It would not overturn Buckley or any other case. In other words, overturning Citizens United would not “embrace the left’s view of the First Amendment,” which sees Buckley‘s equation of money with speech to be a judicial scam. It would not even overturn the political decrees in Citizens United. They would live on. Bush’s proposal could overturn only the legal ruling, the single legal question which the Court could properly address under the Constitution’s case and controversy restriction on judicial power.

The legal ruling in Citizens United extended the decision by Justice Powell in Bellotti (1978). Bellotti held that corporations can spend money in elections to promote political issues. Citizens United extended this ruling to include candidates. The Bellotti ruling had meanwhile been expanded to include “sham issue ads,” those political ads that pretend to be issue advocacy but are actually for or against candidates. The Court allows corporations to spend as much as they want on “sham issue ads.” Such ads are considered to be very effective vehicles for negative campaigning, which is precisely what David Bossie’s organization wanted to do in ways the FEC considered illegal. He responded by filing Citizens United to contest just how sham “sham issue ads” could get on the way toward becoming outright campaign ads.

The “sham” element of issue ads had already been sliced so thin by the Supreme Court in FEC v. Wisconsin Right to Life, Inc. (2007) as to provide only a sliver of difference between them and ordinary campaign ads, which corporations were forbidden to finance. Bossie’s video about Hillary Clinton distributed with corporate money during the 2008 primary was so incredibly sham, that he was inviting the Court to slice the difference so thin as to make it essentially disappear. This case was designed by activist attorney James Bopp to test those limits.

But the Court instead asked for rehearing of the case so that they could cover that last sliver for allowing corporate campaign ads under a different theory. The new theory would release the Roberts 5 from continuous slicing duty. Citizens United left the sham issue ad doctrines in place, but rendered them unnecessary by authorizing corporate-paid campaign ads for or against candidates provided they were undertaken independently of the campaign. Long prior to Citizens United the Court had already completed a series of three cases allowing first individuals in Buckley (1976), then outside political groups in Federal Election Comm’n v. National Conservative Political Action Comm.(1985), and then political parties in Colorado Republican Federal Campaign Committee v. Federal Election Com’n (1996) to make “independent” expenditures not coordinated with a candidate or a candidate’s campaign. Citizens United allowed for-profit corporations to similarly “say” (i.e. “spend” – remember Buckley said money=speech) whatever they want for or against a candidate provided they did so independently.

Unlike slicing that sliver of difference represented by “sham” ads, policing that “independence” was not the Court’s job. The Court left that job to President Obama.

That is what Citizens United, the legal case — not its illegitimate political decrees – actually decided. It is an incredibly narrow, almost insignificant ruling, as a legal ruling. This can be best understood by considering what would be left in place if its decision were overruled. First, corporations would be free to go back to slicing the word “sham” to make issue ads that were the virtual equivalent of the campaign ads legalized by Citizens United. Most observers felt that Citizens United tacitly won that ruling from the Court in its first 2009 hearing of the case. before the Supreme Court decided to broaden its ruling to cover independent corporate electioneering in 2010. In other words, overturning the express ruling on corporate campaign ads that the Court made in Citizens United would not necessarily even overturn the result of Citizens United itself, without going after Buckley.

Second, though corporations could not make unlimited “independent expenditures” that were not also sham issue ads if Citizens United were overruled, the plutocrat owners of those same corporations could, unless Buckley were overruled. In fact, after Citizens United it was primarily plutocrats like Sheldon Adelson, not his corporations, who did make such expenditures.

Overturning Citizens United would not restore anything of “the left’s view of the First Amendment.” But at this point there is an interesting side bar to consider. Here President Obama enters the picture.

Corporations, it was soon discovered, were effective for hiding political investments. This is useful both for reputational purposes and also for covering up bribery. For example, when government contractors illegally kick back money to help politicians who guide lucrative contracts their way by earmarking overpriced no-bid procurement deals for them, it is difficult to prevent or prosecute the bribe if that kickback payment can be made anonymously through a corporate entity created just for that purpose. Hence “dark money” and the rise of SuperPACs, LLCs, 501(c)s and other exotic conduits for investing anonymous corporate cash in politics became the latest fad in dollar politics.

Since President Obama had the authority to make all potential government contractors disclose their newly legalized “independent expenditures” by a stroke of his pen, and his SEC, IRS, and FEC agencies had authority to make all corporations in the political game disclose theirs too, this was not at first seen as an important issue. But Obama, the most legally corrupt president in American history, adamantly refused to exercise his power to require disclosure. In fact he ultimately managed to get a law enacted that revoked those powers so that activists would stop nagging him about his refusal and also to set a precedent for binding any future president who may not be as friendly to plutocracy as Obama.

Corporations therefore increasingly used the dark money loophole, more like a garage door, that Obama left open for them, and even set into law. Yes, Citizens United created this opportunity for “dark money,” but it was Obama who maintained the midnight delivery service and loading dock for influence peddling. The Court may have even been blindsided by Obama’s unexpectedly resolute service to plutocrats in practice, contrary to his professed intentions.

Without Obama, we would be left with a Citizens United decision that granted a sliver more authority to corporations to spend all the money they want on elections, that vanishing sliver of difference between sham issue ads and campaign ads. With Obama we now have a plague of dark money in politics which had been illegal before Citizens United.

Obama widened this sliver even further, almost another whole loading dock for corruption, by failing to appoint FEC commissioners who would enforce the “independent spending” rules. By not enforcing the law, the problem created by Citizens United, but again delivered by Obama, grew much more virulent than it would have been if Obama had done his constitutional duty to take care that the law requiring actual “independence” was enforced. Obama’s delivery service for plutocrats, in effect, allowed unlimited contributions to candidates, including of course his own “unprecedented amounts of large contributions and bundled contributions.”

Take Obama out of the picture and put a Bernie Sanders in, get the laws for dark money disclosure and for monitoring the independence of expenditures enforced, and Citizens United really amounts to very little. It would take away no significant power from plutocrats if they had to go back to relying on sham issue ads, and plutocrats had to use their own, rather than their corporation’s, money to cover that extra sliver of independent campaign ad.

But since Citizens United has been overhyped by the liberal non-profit industrial complex as if were the key money in politics decision, it makes a useful bargaining chip for Bush to play in his effort to outflank Trump and the rest of the Republican field on this issue.

2. Legalizing Obama. The regime of non-enforcement that Obama established allows unlimited money from any source, often anonymously, to flow to candidates through their Super-PACs and other dark money conduits. Its the wild west. Bush himself sent three fundraisers from his presidential campaign to work for his supposedly “independent” but definitely loaded SuperPac in order to avoid any slips in coordination with his campaign. What’s he complaining about? This and similar tricks for implicit coordination is routine for Clinton and the other candidates as well. They are technically illegal, but Obama’s non-enforcement regime has allowed them anyway.

In exchange for giving up the vastly over-hyped but disappearingly small sliver of authority described above, “Bush has called for unlimited campaign contributions” instead. Campaign contributions directly to politicians and parties are now formally limited. The limits are routinely circumvented by nominally independent expenditures.

Bush’s proposal would simply legalize this nominally illegal regime that Citizens United enabled but Obama has delivered by non-enforcement. Bush would eliminate the fake middleman where he has placed his former campaign staff, and route the money directly to the campaigns and parties without the nuisance of maintaining a Chinese Wall in case an overzealous prosecutor should show up who did not get Obama’s memo.

The current de facto Citizens United/Obama regime of unlimited contributions in the form of illegally coordinated “independent” expenditures would thereby be legalized. The remaining distinction without a difference that Bush offers to justify this change is that corporations would again be deprived that sliver of difference by being limited to their sham issue ads, along with their employee PACs and overpaid CEO donors.

3. The ConCon con.

In the fine print of his proposal, Bush also suggests how he would go about overturning Citizens United. He supports the Koch brothers’ Constitutional Convention. He would use the cannon of this never-before used provision of the Constitution for purposes of abolishing that sliver of authority granted by Citizens United to corporations. He mentions that while they are at it the ConCon could also enact ALEC’s balanced budget amendment, and who knows what other damage to the Constitution, There is no room here to go into detail, but this ConCon con has been justly criticized as the fastest way to get rid of the Constitution short of a military coup d’etat. Bush is using his Citizens United soundbite as a stalking horse for his plutocrat donors’ fondest dream, a new fully plutocratic Constitution. It would be closer to current reality, minus all that democracy nonsense which only gives people ideas, while adding the bill of rights for capitalists that the framers overlooked.

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Rob Hager, a Harvard Law graduate, is a public interest litigator [Agent Orange, Bhopal Disaster, Three Mile Island, Silkwood, Joe Harding, Parks Twp., Avirgan v. Hull. (am'd. compl. & mot. to dis. only), etc.] who filed amicus briefs in the Montana sequel to Citizens United and has worked as an international consultant on anti-corruption policy and legislation with the United Nations' and other development agencies. Rob Hager's most recent book, “Strategy for Democracy: Why And How To Get Money Out of Politics,” is currently available as a free ebook.

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