Guest editorial by Ernest A. Canning
Citizens United rejected a congressional legislative ban on corporate campaign contributions. It says nothing about the ability to tax such contributions…
‘A date which will live in infamy’
Jan. 21, 2010 has become, as we predicted it would be, “a date which will live in infamy.”
That was the day when five GOP-appointed members of the US Supreme Court (four linked to the radical-right Federalist Society) handed down Citizens United vs. Federal Election Commission [PDF]. The decision extended an unfettered First Amendment right to the billionaires at the pinnacle of private totalitarian entities (corporations) to buy politicians and bombard the nation with political propaganda. The right was given even if those controlling the corporations could not themselves be extended the same rights as U.S. “citizens” because they are foreigners — perhaps even foreign governments with controlling ownership interests in the newly-erected notion of “corporate citizens.”
With the corporate-owned media in firm control of the primary means of mass communication and our supposedly “public airwaves,” the corporate-purchased message becomes the only message. Corporate wealth can, and, so far during this election cycle has, easily drowned out the right of ordinary citizens to be heard at any meaningful level.
The all-pervasive corporate message serves to virtually bury access to basic knowledge that is vital to a vibrant democracy. That is a far cry from what the framers of the U.S. Constitution envisioned.
As James Madison astutely observed:
On Dec. 7, 1941 the Empire of Japan delivered a severe blow to our naval forces at Pearl Harbor. The damage wrought by the these five “radicals-in-robes” on Jan. 21, 2010, while less immediately deadly, was, in fact, far more harmful to the nation. They drove a quasi-legal dagger into the heart of our constitutional democracy, paving the road towards a tyrannical corporate security state.
Widespread Revulsion
Widespread revulsion is reflected by a recent Washington Post/ABC News poll reflecting that nearly seven in ten Americans “strongly” believe that super PACS should be banned — another 15% who “somewhat” believe that — and by the growing number of cities who have signed onto a proposed constitutional amendment that would not only reverse Citizens United but end corporate personhood. That revulsion is also reflected by Western Tradition Partnership, Inc. vs. Attorney General of Montana [PDF], a Montana Supreme Court decision which upheld that state’s anti-corruption laws banning corporate campaign contributions — a case in which even the dissenting opinion by Justice James C. Nelson referred to the very concept of corporate personhood as “an affront to the inviolable dignity of our species.”
Solutions
While it is indeed possible, but not probable, that Justice Anthony Kennedy, author of the infamous Citizens United decision, could seize upon the Montana decision as an opportunity for a “do-over,” the future of our constitutional democracy should not rest on so slender a reed as one Justice’s conscience. Move to Amend, whose slogan is “We the People, Not We the Corporations,” should press forward with its efforts to seek a constitutional amendment.
In the interim, MoveOn member Peter J. Nelson, has come up with a brilliant temporary fix — “Tax the Super-PACS.”
My additions to the Nelson proposal would be to set that tax at the same level as the top tax bracket during the Eisenhower administration — 91%. Also, as the principal beneficiaries of Super-PAC monies are the corporate media outlets who ultimately receive them — media outlets that long ago abandoned the role envisioned by the First Amendment as a Fourth Estate that insures that the electorate is fully informed — the appropriate point to impose such a tax would be to attach it to the purchase of ads. That way, where Nelson’s petition is directed only to the U.S. House and Senate, state legislatures could increase much needed revenue by taxing Super-PAC monies that seek to purchase ads in local and state elections.
We would also need to remove the IRS 501(c)(4) designation for groups like Karl Rove’s American Crossroads, which has pledged to raise and spend $300 million for the 2012 campaign. Pro Publica reports that “non-profit” designation makes it possible for corporations to seek tax credits for the political “dark money” they donate to Super-PACS.
A petition to tax the Super-PACS can be signed here.
UPDATE: The CA state assembly passed AJR 22, a resolution calling upon the U.S. Congress to pass a constitutional amendment to overturn Citizens United and to send it to the states for ratification. A CREDO Action petition calling upon the CA state senate to pass AJR 22 can be signed, here.
Also, Sen. Jeff Merkley (D-OR) is circulating a petition to the IRS to prevent groups like Rove’s Crossroads and the Koch Brothers’ Americans for Prosperity from evading donor disclosure requirements by masquerading as “social welfare” organizations. That petition can be signed, here.
Ernest A. Canning has been an active member of the California state bar since 1977. Mr. Canning has received both undergraduate and graduate degrees in political science as well as a juris doctor. He is also a Vietnam vet (4th Infantry, Central Highlands 1968). Follow him on Twitter: @Cann4ing.
At the same time that taxing these election monstrosities sounds good, I am afraid that taxing a non-profit organization like this would send a bad precedent that the Republicans can use against other groups that they don’t care for.
Alex: I think the answer to your concern lies in tightly drafted tax legislation that denies non-profit status to groups like Rove’s American Crossroads that are simply conduits for corporate campaign cash while carefully segregating for 501(c)(4) status for legitimate charities.
Alex & Ernie:
Some important if (purposely) confusing distinctions. Rove’s Crossroads GPS is the 501(c)(4). His American Crossroads is the SuperPAC. They are, of course, pretty much one in the same, but for the legal fictions that distinguish them to allow them to be dark money laundering operations.
(We’re picking on Rove’s operations here, but this is how the dark money scheme works in general, so there are many others doing the same dirty business.)
Following Citizens United, folks believe they are able to give unlimited, undisclosed money, “anonymously” to the c4 operations like Crossroads GPS.
Once it’s laundered there (since we can’t find out who gave it), the c4 itself, in this case, Crossroads GPS, is able to go on the record as donating to American Crossroads.
So all we know is that American Crossroads (not a non-profit, or at least not a c4 — it might be a 527, or is PAC its own distinction now?) receives huge funding from Crossroads GPS (a non-profit who is funded by who-knows-who?)
The money from the corporate donors is, essentially, given to American Crossroads to spend as they like, after it has been laundered through Crossroads GPS.
So in taxing the American Crossroads PAC, as Ernie is suggesting, you are not taxing a non-profit — or at least not a c3 or c4.
At least if I understand the arcane idiocy now allowed under Citizens United correctly.
Although I fully support the CA resolution for a constitutional amendment. Don’t forget that it’s ONLY a resolution.
Granted that the only stronger action aimed directly at completely overturning Citizen’s United would be to call for a Constitutional Convention – something I fear because there is NO precedent and hence no way to limit it to just a single issue!
Publicly established preferences of 65-68% in our representative DEMOCRACY are routinely ignored by legislatures.
See, for example, the desire for a “public option” in the health insurance bill. And that issue, I suspect, was better known than Citizens United, among the general populace, by a factor of ten.
Brad wrote:
My suggestion, Brad, is what amounts to a 91% sales tax at the point of ad purchase. Thus, even if the ad monies are laundered through a 501(c)(4), they are subject to taxation. It would mean that the corporations behind those ads would have to shell out more than ten dollars for every dollar that flows to the corporate media for paid-for political propaganda.
To continue with my devil’s advocacy…
So what would prevent a Republican controlled Congress/Administration from crafting a carefully designed bill to tax monies to Planned Parenthood, or Sierra Club?
If it’s money laundering then there should be laws to enforce the illegality of such practices (unless we have them and they are not being enforced).
Alex said @ 7:
As I understand Ernie’s suggestion, in any case, they wouldn’t be taxed unless or until they purchased media ads. Since I don’t believe PP or SC spend the kind of money on ad buys that the political PACs do, I suspect it wouldn’t have the same impact on them. Though I appreciate the appropriate skepticism you have here. Don’t know if there is a way to carve out exceptions to apply to PACs only (versus direct ad buys from actual non-profits) or not.
That’s sorta the problem here. It’s become LEGALIZED money laundering. And that’s why it’s become such a popular way to buy elections since 2010. The laws that HAD been in place to prevent this sort of thing (eg. McCain/Feingold) were gutted by the SCOTUS in their Citizens United ruling.
Currently it seems the Republicans write legislation without concern for any blowback. The Dems seem to not to get much done because they are too concerned about blowback. Can we have some moderation with blowback?
I believe that many people do not agree with Republican side of the issues but they respect their initiative, and do not care for the wonky minutia that governs dem’s presentation of issues. I don’t think issues belong on bumperstickers, but there would be more appreciation of dems if they were more forceful. There are some but not many.