Dan Morain: Shady ad brought to you by the Supreme Court
10/31/2010 12:00 AM
10/01/2014 2:47 PM
It's a sleazy little ad, the one alleging that Sen. Barbara Boxer supposedly voted against the interests of injured war veterans and in favor of giving Viagra to pedophiles.
It's spewed over the airwaves by something called Taxpayer Network, a political advocacy corporation you've never heard of and which undoubtedly will slip back into a hole once this election is over.
Who funds Taxpayer Network, and what motivates its donors? Could they be health insurance companies mad at Boxer's vote in favor of federal health care legislation?
Maybe they're fossil fuel producers upset that she supports capping carbon emissions? Perhaps it is some rich guy who simply thinks Boxer is too liberal and who would rather that Republican Carly Fiorina represent California.
You will never know – except that one of its directors is a high-powered Washington lobbyist who represents moneyed interests that have a financial stake in whether Democrats or Republicans control the U.S. Senate.
Campaign 2010 is noteworthy for many things: the influence of tea partiers; dismay at President Barack Obama and incumbents; fear about our nation's future. But most remarkable has been the impact of the U.S. Supreme Court's decision issued at the start of the year that opened wide the spigots of corporate money flooding into this year's election.
The 5-4 decision in Citizens United v. the Federal Election Commission handed Republican strategists something they long sought, the ability to raise unlimited money from corporations.
Worse, the high court decision permits many of the organizations to forever hide the identities of their funders, while other groups easily can delay identifying their donors until after votes are cast.
"The court majority was somewhat blindsided by the ease by which the disclosure rules would be evaded," noted Professor Richard L. Hasen, a campaign finance law expert at Loyola Law School in Los Angeles.
Citizens United permits unlimited spending by unions, though when a union spends money, the public knows the source – union dues.
Labor surely spends heavily to influence elections. The single largest spender outside the political parties in this season may end up being the American Federation of State, County and Municipal Employees.
As Election Day nears, however, Republicans and their political organizations are capitalizing far more from the Citizens United decision than Democrats.
An analysis by the nonpartisan Center for Responsive Politics shows that excluding Democratic and Republican Party committees, independent groups have spent $280 million-plus during this campaign.
That analysis also shows Republican proxy groups are outspending Democratic-leaning groups by more than 2 to 1 – $182 million to $87 million. Spending by Republican-oriented groups has increased significantly this year from 2008 levels, while Democratic spending has fallen.
Courts long have treated money spent in political campaigns as a First Amendment issue. Indeed, the Citizens United case raised a fundamental free speech issue.
Citizens United is a conservative group that receives some corporate money. During the 2008 presidential campaign, Citizens United sought to use an on-demand cable provider to air a 90-minute video attacking Hillary Clinton. Lower courts ruled that was a violation of the 2002 federal campaign finance law co-authored by Sen. John McCain of Arizona.
First Amendment advocates were alarmed. If the Federal Election Commission could restrict the airing of a documentary, no matter how one-sided, the government could block publication of a critical book in the weeks before an election.
The high court could have resolved the case by issuing a narrow decision. It might have concluded that election law did not apply to on-demand broadcasts. But the court went way beyond that, overturning a century-old prohibition on corporate giving in federal campaigns.
In its written argument urging that result, the U.S. Chamber of Commerce contended that "elected officials who oppose business viewpoints have sought to keep them from being expressed, particularly when their re-elections are at stake."
Chamber lawyers wrote that public officials suppress corporate rights "even when candidates have directly attacked business interests and when corporations have unique and valuable insight into the likely consequences of electing or defeating particular candidates."
In the campaign, the chamber's "unique and valuable insight" has come in the form of 30-second commercials that pummel Democrats across the country.
No Democrat has taken a worse pounding than Boxer. The chamber has spent millions providing the valuable insight that Boxer has spent "28 years of killing jobs."
When they issued the Citizens United decision, the justices seemed to believe that the American electorate would be fully informed about the money behind such attacks.
"With the advent of the Internet," Justice Anthony M. Kennedy wrote in the majority opinion, "prompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions and supporters."
It is a blindered view of how the federal campaign system works. Some newly empowered groups do disclose their funders. But the disclosures are issued in monthly or quarterly reports, and they are not easily accessible on the Internet. Many other groups, including ones that have aired the most over-the-top attacks, have no obligation to issue any disclosure of their donors.
The Chamber of Commerce intends to spend $75 million to elect Republicans and is not legally required to identify its specific donors, though it's widely known that the chamber represents all major corporate interests, from insurance to tobacco to oil.
Others fly by night, like Taxpayer Network.
Taxpayer Network does not have a listed phone number, but it does have a Rocklin address – a UPS mail drop sandwiched between a Starbucks and a salon where you can get a waxing and a pedicure.
Its website says its attorney is Paul E. Sullivan, a former counsel to the FEC and Republican based in Washington, D.C.
Sullivan also represents a political entity called Latinos for Reform, which attracted attention recently for airing television ads in Nevada urging Latinos not to vote.
Taxpayer Network lists one director as David McIntosh, a former congressman from Indiana. McIntosh is a lobbyist at Mayer Brown in Washington, where he represents energy companies worried about climate legislation, health care clients, the U.S. Chamber of Commerce on financial services regulation, and more.
Two Californians, Lisa and Bruce Hughes, also are on the board. They are divorce lawyers in Orange County. Lisa Hughes was Gov. Pete Wilson's chair of the Lottery Commission.
Sacramento political consultant Dave Gilliard, who represents Republicans in state and federal campaigns, produced the ad – and defended it.
A Democratic organization has filed a complaint contending that Taxpayer Network is violating the law. It won't do any good. The Federal Election Commission won't rule on the complaint until long after votes are tallied on Nov. 2, long after the sleazy little ad has had its impact and Taxpayer Network evaporates into the ether.
About This BlogDan Morain has been a columnist at The Bee since 2010 focusing on state government and politics. He previously worked for The Los Angeles Times covering the California Supreme Court when Rose Bird was chief justice, the Legislature when Willie Brown was speaker and the governor's office during Gray Davis' tenure. Dan Morain can be reached at email@example.com or 916-321-1907. Twitter: @DanielMorain.
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