Written by Ben Moran, Intern, Democracy Is For People Campaign.

This is an exciting time here at the Democracy Is For People Campaign! Congress is responding to a groundswell of support for an amendment to rein in corporate influence over our democracy.  U.S. Sen. Tom Udall’s (D-N.M.) constitutional amendment to overturn the Citizens United v Federal Election Commission ruling has continued to gain co-sponsors, while several members of the House of Representatives also have introduced amendments.

Today, U.S. Rep. Ted Deutch (D-Fla.) introduced an amendment that would go even further.  Public Citizen President Rob Weissman commented, “We herald the Deutch amendment and applaud the efforts in Congress to seriously address this issue at the crux of challenges to our democracy. Rep. Deutch’s amendment would clarify that constitutional rights are intended for real, live, breathing human beings. It would end corporate spending on elections. And it would give Congress authority to adopt a sensible campaign finance system. It would make America stronger, more democratic and more just.”

Reports from the Grassroots. We are getting closer to the January 21 National Day of Action, and the house parties held last week to plan for it went very well! This past week we have been receiving more and more encouraging reports from house-party hosts. They have been coming up with plans for the January 21 Day of Action to call out corporations for posing as human beings, and being ‘citizen impersonators’ and ‘imposters’ in our democracy. Democracy is for people, and as house-party host Laura from Pennsylvania remarked, “If corporations are people, they should be able to produce a birth certificate and show us their belly buttons.”

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The Supreme Court’s 2010 decision to open the floodgates to unlimited corporate expenditures in elections has recently been thrust back into the spotlight by the international Occupy movement. And rightly so, given that the Americans creating a “church of dissent” in urban public spaces are echoing popular discontent with a broken political process– one where the voices of “We the People” seem to be drowned out by powerful special interests all too often.

Thus, it’s fitting that, as they’ve cast a spotlight on a ruling that is widely reviled by Americans across the political spectrum, Occupy participants have inadvertently highlighted another sad result of Citizens United v. Federal Election Commission.  As Professor David Kairys observed the day the ruling was handed down (full disclosure: I conducted research on Citizens United under Professor Kairys’ supervision in 2010), corporations’ attempts to influence elections through unlimited spending are now granted a heightened level of constitutional protection compared to, say, everyday citizens:

Political cartoon by Cory M. Grenier, via Flickr.

“Taken as a whole, the conservative court’s First Amendment jurisprudence has enlarged the speech rights available to wealthy people and corporations and restricted the speech rights available to people of ordinary means and to dissenters.”

Indeed, the Supreme Court’s interpretation of the First Amendment in recent decades specifically limits Occupy encampments’ potential recourse against government restrictions. As Christopher Dunn of the New York Civil Liberties Union explained, today’s gatherings are potentially limited by the Court’s 1983 decision in Clark v. Community for Creative Non-Violence (“CCNV”).

CCNV upheld the National Park Service’s decision to prevent advocates for the homeless from sleeping in Lafayette Park (across the street from the White House) and on the National Mall, and limit them to daytime protest. Camping out in the park was meant to be a central part of the activists’ critical message about Reagan administration policies. Nevertheless, the government’s valid interests in public safety and the “aesthetic value” of national parkland for tourists were given broad deference by the Court (too much deference according to the late Justice Thurgood Marshall’s dissent).

CCNV doesn’t give state and local officials carte blanche to evict today’s encampments, of course; as Dahlia Lithwick points out, it is an open legal question “whether the regulations being used to shut down protest are bogus attempts to use neutral-sounding rules to suppress speech.”  And as Dunn notes, he was able to successfully represent advocates in New York who wanted to sleep on the sidewalk in front of Gracie Mansion to protest then Mayor Giuliani’s policies.

Still, when you look at CCNV alongside other court rulings over the past few decades that have limited the scope and form of individual free speech rights, the clear reality is that the First Amendment is far from a surefire defense against government regulation.

In sharp contrast, Citizens United places even modest, bipartisan restrictions on the manner and target of corporate spending in elections into the category of constitutional “strict scrutiny.” They were deemed a “classic example of censorship” to be vigorously guarded against according to Justice Anthony Kennedy.

Kennedy simply brushed aside Justice John Paul Stevens’ dissenting observation that corporations still wield the ability to form political action committees, have their executives and board members make individual contributions, and otherwise lobby and make their preferences clear. As a result, there was no deferential balancing of interests like in CCNV. Laws restricting corporate spending are presumptively unconstitutional, and can’t be upheld unless the government has an extremely compelling reason for them.

And lo and behold! Kennedy and his colleagues determined that Congress’ concern for the corrosive impact of unlimited corporate money is simply too speculative. Without hard and fast evidence of quid pro quo corruption, efforts to halt the undermining of the quintessential public forum at the heart of our democracy– the elections in which individual, and not corporate, citizens cast their ballots– are for naught.

So even though corporate spending to back political candidates was never imagined to be a form of protected speech (let alone subject to such elevated protection) by the Framers, thanks to Citizens United, it has been placed at the heart of the First Amendment.

Meanwhile, citizens who have not incorporated themselves and aren’t flush with cash, but wish to express their displeasure with the ruling and the broader distortion of our democracy, have greater restrictions than large corporations on their right to speak out.

It is precisely this skewed reality that makes me, as a student of American history, a newly-minted lawyer, and a citizen of this great nation, proud to be a part of the Democracy is for People campaign’s effort to pass a constitutional amendment overturning Citizens United.  If you’re equally outraged, and equally impassioned to do something about it, then get involved in this movement today.

Sean Siperstein is a Legal Fellow with the Democracy is For People campaign.

They’re in! The financial industry’s comments have been submitted and collected on one of the biggest rulemakings concerning Wall Street pay—Section 956 of The Dodd-Frank Wall Street Reform and Consumer Protection Act—Incentive-Based Compensation Arrangements.

The comments echo a familiar theme from the financial reform legislative fight of last year: whatever you do, just don’t involve the financial services industry in your new regulations.

The financial industry seems to believe that it should be the exception to the rule.

And since the main purpose of the rule is to curb Wall Street’s excessive pay practices– clearly it needs to cover the bulk of the financial industry. The Dodd-Frank legislation intended this rule to prohibit executives from repeating the inappropriate risks that prevailed before the 2008 financial crisis and led to the crash.

When implemented, the proposed rule will require financial institutions to disclose their incentive-based compensation arrangements to federal agencies and, at larger companies, require a mandatory deferral of at least 50 percent of executives’ incentivized pay for three or more years.

In response to the proposed rule more than 10,000 public commenters flooded the websites of the seven federal agencies responsible for drafting the rule to give their two cents on how federal agencies should curb Wall Street’s excessive pay.

Photo by Darren Hester

Public Citizen sifted through these comments and identified 30 industry organizations attempting to weaken the rule, 24 of which submitted written comments and 6 that met with federal staff.

Upon examination, it is crystal clear that these commenters have the potential for undue influence. The 31 groups spent nearly $243 million lobbying on financial services issues and $46.7 million contributing to campaigns in 2010 election cycles. In part, that money has paid for at least 712 lobbyists, including 454 who have reported contacting at least one of the seven agencies responsible for drafting the rule.

Here’s some of what the 24 commenting companies and industry representatives suggested to federal agencies on Incentive-Based Compensation Arrangements in their comments:

17 out of 24 plead that their company or industry should simply not be included in the rule. Some proposed legal challenges to the rule, while others assumed the inclusion of their company to be “an unintended consequence.” A few others asked for special carve outs for whole classes of job titles or exclusions of certain types of incentive-based pay.

15 out of 24 explain that the rule is too “burdensome,” “prescriptive” or “one-size-fits-all.”

13 out of 24 believe that the rule is essentially necessary because the private sector inherently accounts for good decisions and safeguards in conducting business. (If it did, Section 956 would be neither here nor there.)

11 out of 24 companies called for the total elimination of the mandatory deferral requirement.

8 out of 24 point out that the industry’s inability to attract and retain top talent with competitive compensation plans will create a brain drain that’s “as devastating as excessive risk.”

4 out of 24 commenters demanded that the regulation be downgraded from a clear rule to a “guideline” so that companies have the option of voluntarily abiding.

Representatives of the financial services industry clearly seek to render Section 956 irrelevant by limiting the scope of its coverage and by gutting its enforceability. Their comments serve as a window into the types of messages being funneled to government officials by the commentators’ 712 lobbyists and $243 million in lobbying expenditures.

Without a doubt, Wall Street is flexing its financial muscle to rebut the 10,000 or more public comments supporting and bolstering the pay incentives proposed rule.

However the public’s voices should be deemed more important than industry dollars; and it’s time for federal agencies to acknowledge that Main Street’s two cents should weigh more than Wall Street’s $243 million.

We urge them to make the rule to rein in Wall Street pay as comprehensive as possible.

Money plays too large of a role in elections. To compete in an increasingly money-driven system, candidates spend their days “dialing for dollars” and meeting with interests that can bankroll their campaigns. The recent Supreme Court case Citizens United only makes matters worse, allowing organizations to spend vast sums of money in the dark of night. The public is losing faith in our campaign finance system and rightfully so.

The U.S. Senate Judiciary Committee’s Subcommittee on the Constitution, Civil Rights and Human Rights took a step in the right direction Tuesday morning. Led by Senator Durbin, the subcommittee held a hearing on The Fair Elections Now Act, which would offer a new system for financing campaigns. The Fair Elections Now Act would allow candidates who value grassroots rather than corporate support, to accept matching public funds with small private donations. As a result, there would be increased transparency and accountability for our elected officials, who would respond to voters’ interests instead of deep-pocketed donors’.

Much of the hearing focused on the impact Citizens United has had on elections. Public Citizen’s recent report, “12 Months After” confirms that the damage is clear. Corporate expenditures are at an all-time high, corporate lobbyists wield influence like none other, and transparency is on the decline.

Former Republican Senator Alan Simpson, the Brennan’s Center Monica Youn, and Tea-Party election attorney Cleta Mitchell testified before the subcommittee.

Simpson presented a real-world view of electioneering to the committee. He offered a grim picture of the current system, as our elected representatives spend too much of their time “begging” for money. He said legislators hate this aspect of their job, but they continue to do it because it’s necessary to win. However, as a result, America suffers. Simpson ardently voiced his support for changing the current scheme so our elected officials can do what really matters: meeting with other legislators, debating bills on the floor, and offering solutions to our nation’s problems.

Youn spoke of how our campaign finance system allows for “Godiva Chocolate” organizations to thrive. They are “Godiva Chocolate” because they are rich, dark, and we have no idea what’s inside them. Under the current regime, sophisticated and shadowy organizations commit what amounts to legal money laundering. They direct vast amounts of money for their political causes, with no accountability. What Youn was referring to is becoming clearer with every election cycle. We’ve all seen the commercials, “Paid for by Americans for mom and apple pie,” but we don’t know who “mom and apple pie” really are.

Mitchell didn’t see an issue with any of this. She believes our election system works just fine. She even said that it was part of elected officials’ jobs to fundraise, just like it’s her job as an attorney to seek clients. However, unlike attorneys, our elected officials should not spend their time selling out to the highest bidder.

Senator Franken, who was nonplussed at her testimony, asked her how it’s acceptable that corporations can spend large amounts of money in campaigns, without disclosing it to their shareholders. She dodged the question, saying Franken was “confused.” They tussled for a few minutes when Mitchell, seemingly triumphant said, “We just had a confuse-off.” To which Franken retorted, “Yes, and I won.”

Just as Durbin and Franken challenged the status quo in the hearing today, we must continue to demand that our elected officials are responsive to the people, not other interests. The Fair Elections Now Act is a good start.

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