Author Archives: Janos Marton

The Evolution of Political Parties: Studying the Founders, Part V

This is the fifth, penultimate entry in a series analyzing historian Richard Hofstadter’s 1969 book, The Idea of a Party System. During a period when progressives’ frustration with the Democratic Party seeks constructive resolution, it is worth looking at the historical evolution of parties under the leadership of the Founders, whose very fears about political parties quickly became reality.

Click here for Part I, Part II, Part III and Part IV.

Part V: The Young Republic Weathers War

Before his presidency and during his popular first term, Thomas Jefferson had written extensively on the eventual triumph of Republican values.  That’s why his second-term tack towards heavy handed government intervention through the embargo and subsequent military mobilization for war caught Federalists flat-footed politically.  By absorbing so many of their key policies both domestically (a strong national bank) and in foreign policy, Jefferson had, however wittingly, sucked the air out of the minority party.

The consequence, of course, was sacrificing his own core Republican ideals of small government and military non-intervention.  Politics versus policy, the age old story. The Federalists would never control 40% of either legislative body again, but their influence would live on within the ranks of the Republican Party.

Jefferson’s posturing recalls the now well-understood maxim that in American politics, change is most easily advanced by the unexpected party- that is how Bill Clinton pushed through “welfare reform” and Nixon was able to open relations with China.   The public is more trusting of a politician’s intentions when he bucks the orthodoxy of his party.

While Jefferson had the political muscle to govern without opposition, the lack of opposition led to poor results.   In preparing for an embargo against Britain, Jefferson completely miscalculated the economic impact it would have on the United States, and how little it would affect Britain.  Additionally, his plan for small gunboats to enforce the embargo proved militarily disastrous.   The Republicans’ military posturing only led them further to the brink of war, but their frugality prevented them from building a commensurate military until it was too late.  Most of the Founders had come to understand the need for a strong oppositional party to hold the government accountable, and without one, those fears were legitimated.

Even as the embargo left Jefferson as the second president to exit amidst tumbling approval ratings (a trait many of his successors would share), James Madison easily won the election of 1808.   His Republican Party had all but abandoned its original principles of small agrarian government, as unfettered trade, expansion and nationalism became the mantra of a party that increasingly needed taxes and guns to advance its interests.

The collapse of a substantial opposition party worried many who feared that the small ‘r’ republican experiment had been a failure.   Jefferson didn’t see it that way, writing in 1817, “The best effect of the war has been the complete suppression of party.”  Until the 1828 election of Andrew Jackson, who ironically became an American hero during the war with his dramatic victory at the Battle of New Orleans, the Republican Party governed alone.   One person most pleased with the destruction of the Federalist Party was a major beneficiary of its demise, President James Monroe.

A hard-line Republican partisan, Monroe had advocated Federalist “annihilation” for years, and had rebuffed efforts to split the party and run against James Madison.   Monroe’s passages on the importance of party discipline are too extensive to quote here, but suffice to say, he felt that dissent belonged behind closed doors, and that elections delivered explicit mandates that ought to be followed. His rhetoric was more Tom Delay than Founding Father.

Monroe believed that party and faction were not rooted in human nature, a notion most of the Founders had come to accept, but rather, “The cause of these divisions is to be found in certain defects of those governments… and that we have happily avoided those defects in our system.”  In his inauguration address he lambasted “discord’, calling America “one great family with a common interest.”  Such an opinion would seem laughable even in 1817, let alone today.  Yet an unrelenting theory of American exceptionalism and unity drove Monroe’s political calculations throughout his presidency.  In 1820, he ran for re-election unopposed.

In 1824, parties came back from the dead and took modern form.  The reasons for this include the vast expansion of direct voting for the presidency, the slavery issue, and new campaign methods that eerily mirror the tactics used to this day.  In the sixth and final installment of this series, we shall evaluate how Andrew Jackson’s political operation created a template for the modern campaign, and why strong , permanent political parties were necessary in this political landscape.
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Thanks for reading.  This series will conclude, hopefully tomorrow, with Part VI: The Jacksonian Political Machine.  Part VI will feature the rise of our favorites, the Democratic Party.

The Evolution of Political Parties: Studying the Founders, Part IV

This is the fourth in a series analyzing historian Richard Hofstadter’s 1969 book, The Idea of a Party System. During a period when progressives’ frustration with the Democratic Party seeks constructive resolution, it is worth looking at the historical evolution of parties under the leadership of the Founders, whose very fears about political parties quickly became reality.

Click here for Part I, Part II and Part III.

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Part IV: Jefferson Takes Power

The election of Thomas Jefferson introduced two questions for the new republic:  How would the Republicans handle their newfound majority?  How would the Federalists react as the new minority party?

For Federalists, the election of 1800 had deeply complicated their relationship to Jefferson.  Because Jefferson and Aaron Burr, both Republicans, had tied in the Electoral College, the fate of the presidency would be determined by the House of Representatives.  Hamilton made a famous push for his Federalist colleagues to vote for Jefferson, “an atheist French radical“, rather than Burr, “an embryo Caesar…the most unfit man in the United States for the office of president “.   This was a bitter pill for Federalists to swallow, after a brutal election season of demonizing Jefferson.  But in the end they heeded Hamilton, and Jefferson was sworn in as the third president.

Jefferson’s famous inauguration line, “We are all Federalists, we are all Republicans”, rings similarly to Washington’s “non-partisan” farewell address.   His goal was to create a super-party, a large tent that would bring all the people under his banner, save the most fringe Federalists, in order to exterminate the opposition party.   In furtherance of this plan, Jefferson adopted some of the Federalist domestic agenda, such as keeping the national bank to continue operating, and allowing most Federalist civil service appointees to keep their posts until they retired or resigned.  He spoke openly of courting the banking interests to the Republican Party to sap Federalists of their campaign funding.  Hamilton had correctly assessed Jefferson’s personality, noting that while he may have been an enemy to executive power while in the minority,  upon winning the presidency Jefferson would be “solicitous to the possession of a good estate” (p.137).

One topic that was never discussed among serious statesmen within the Federalist Party was secession or revolution- just as such fringe ideas had been squashed by Jefferson when the Republicans were in the minority.  There are a myriad of reasons for this, but one interesting reflection from James Madison in 1830 was that the United States had a weak, disorganized military, with no major figurehead after the death of Washington.  Thus, neither side could really discuss using the military to bring about a non-democratic change of power.

Hofstadter addresses the noticeable departure from Jefferson’s “radical” rhetoric upon taking office:

The modern liberal mind has been bemused by his remarks about the value of a little rebellion now and then, or watering the tree of liberty with the blood of tyrants, or having a complete constitutional revision every twenty or thirty years.   But Jefferson’s more provocative utterances, it has been too little noticed, were in his private correspondences.  His public statements and actions were colored by a relative caution and timidity that reveal a circumspect and calculating mind- or, as so many of his contemporaries believed, a guileful one.

Like Barack Obama, both Jefferson’s supporters and detractors were surprised at his political caution. We can only speculate about our current president, but Jefferson knew that the republic was young and fragile, and he needed to continue preaching the same patience as when the Republicans were steadily making Congressional gains in the 1790s.   Jefferson believed the Federalists were on a course for extinction, and there was no need to inflame their passions.

Where Jefferson and Obama miscalculated is that no amount of accommodation or caution can quiet the vitriol of a recently deposed opposition party.   In fairness to Jefferson, Obama had 200 years of precedent to see it coming.   Jefferson fumed over the rancorous opposition to his every move, writing,

“A respectable minority is useful as censors, but the present minority is not respectable, being the bitterest cup of the remains of Federalism, rendered desperate and furious with despair”(p.165).

I can scarcely imagine a better depiction of the Tea Party.  The Rick Perry wing of the Federalist Party finally got their botched secession attempt after the election of 1804.  The more rationale Federalists, seeing their power dwindling, retreated into the judiciary, launching the first major battle over that third branch of government.

Federalists on the bench has shown their partisan colors during trials over the Sedition Act, and the Republicans were eager to enact revenge, impeaching two Justices and reducing the size of the Circuit Courts, for “cost-saving” reasons (Hofstadter argues that this argument for frugality does have some legitimacy).   However, Jefferson once again neglected to go for the kill, even though he had the votes to either pack the court or amend the constitution to make the Supreme Court a fixed tenure position.  With the Federalists on the run, he saw no need to overplay his hand.

In 1804, Jefferson was re-elected in a landslide, building a 4-1 advantage in the Senate and 5-1 advantage in the House.  Even in New England, the Federalist Party could count few victories. At his inauguration speech, Jefferson congratulated the United States on “a union of sentiments now manifested so generally”(p.166).  As we’ve seen over the years, however, there’s never a good time to declare a mandate.   Hostilities on the high seas were approaching, and the subsequent showdown with England would test the unity of the Republican Party, briefly revive the Federalists, and cripple Jefferson’s impressive approval ratings.  After all, no one wins in war.

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Thanks for reading! Coming soon:  Part V: The Young Republic At War

The Evolutions of Political Parties: Studying the Founders, Part III

This is the third in a series analyzing historian Richard Hofstadter’s 1969 book, The Idea of a Party System. During a period when progressives’ frustration with the Democratic Party seeks constructive resolution, it is worth looking at the historical evolution of parties under the leadership of the Founders, whose very fears about political parties quickly became reality.

You can read Part I here, and Part II here.

Part III: The Adams Administration

In Parts I and II we looked at the Founders’ disdain for political parties and factions, why Madison and others believed their influence could be mitigated, and how the French Revolution created the first partisan crisis of the young republic.  Now we turn our attention to John Adams, who could not claim President Washington’s pretense of non-partisan governance, though that hue by the end of his second term.

The behavior of the Federalist Party in the late 1790s eerily foreshadowed the Bush-era Republicans.  As tensions mounted with France, and the Anglophiles that ran the Federalist Party ratcheted up hysteria over France’s many diplomatic blunders, hoping to turn the American public sharply against the French, and, in turn, against the Republican Party.   The notorious Alien and Sedition Acts, which passed Congress narrowly (44-41) in 1798:

“{W}as vague enough to make a man criminally liable for almost any criticism of the government or its leading officers or anyeffort to combine for such a purpose…It drew no definable distinction between criticism and defamation, opposition and subversion”(p.107).

Hofstadter has praised the innovation of the Founding Fathers for creating the first legitimate political opposition under a republican framework, but he acknowledges that the Sedition Act was a major threat to its development.   Federalists hoped to cow Republican dissent by criminalizing their pro-French rhetoric.  It is a testament to President Adams that he was able to buck the “High Federalists”, who agitated feverishly for war, and ultimately decide against it, believing that the United States was too fragile a country to launch a costly war with its populace so bitterly divided.

Meanwhile, morale was down in the Republican camp, even as they continued to make gains in Congressional elections throughout the 1790s.  Jefferson encouraged his party to look past the election of Adams to the presidency, and bear with this Constitutional experiment, even as some of his peers speculated on secession:

“{I}n every free and deliberating society, there must, from the nature of man, be opposite parties, and violent dissensions and discords; and one of these, for the most part, must prevail over the other for a longer or shorter period of time.  Perhaps this party division is necessary to induce each to watch and relate to the people the proceedings of the other”(p.115).

For those of us reeling from the 2010 midterms, or indeed, for Republicans who were stunned by their repudiation in 2008, Jefferson’s passage should remind us all that in a democracy the side one supports will inherently lose the trust of the people in time, for any other result would be an indictment of the democracy’s vibrancy.   It is the responsibility of the party to bring the inadequacies of its opponents to light, and sell the people on why governing in an alternative manner would be preferable to their interests.

Jefferson continued:

“A little patience and we shall see the reign of witches pass over, their spells dissolved, and the people recovering their true sight, restoring their government to its true principles…If the game runs against us sometimes at home, we must have patience until the luck turns, and then we shall have an opportunity of winning back the PRINCIPLES we have lost.  For this is a game where the principles are the stake”(p.117).

Folks, even in these times, the reign of witches will pass over, and their spells will dissolve.

For progressives who share my optimism about emerging demographic trends, including the socially liberal inclinations of the internet generation, the growing number of Hispanic voters and the passage of fundamentalism’s high-water mark, Jefferson had similar, and ultimately correct, assumptions about demographics in his own time.   He admonished Republicans to put away thoughts of secession or violence, and to stick with the democratic experiment.

Meanwhile, President Adams was finding out the lesson George W. Bush never had to- that a public’s appetite for war is easily lost by an accompanying tax increase.   The Republicans seized on this issue, and Adams, even as he had avoided war, was hammered over his party’s proposal for a burdensome war tax.  It soon became evident that the Republicans were cruising to electoral victory in 1800.

Now the Republicans, who had suffered such persecution as the minority party, would have the chance to govern.  But, as Hofstadter explains:
“{E}ven their  own experience as an opposition, however educative, had not fully reconciled them to the necessity of an opposition…”
Their own war to wipe out the Federalist Party for good was on the march.

The Evolution of Political Parties- Studying the Founders, Part II

This is the second in a series analyzing historian Richard Hofstadter’s 1969 book, The Idea of a Party System. During a period when progressives’ frustration with the Democratic Party seeks constructive resolution, it is worth looking at the historical evolution of parties under the leadership of the Founders, whose very fears about political parties quickly became reality.

You can read Part I here.

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Part II:  Fissures  Emerge During Washington’s Presidency

“We can be sure that those with power in their hands…will always, when they can…increase it.” – George Mason

In creating a government that would balance liberty and stability, the Founders were fairly unified in their belief that checks on government power should be built into the Constitution, rather than established through the volatile political process.  The Founders, explains Hofstadter, did not expect permanent political parties to play a significant role governance, but did want to establish checks to limit a faction’s potential power.  These checks include the three separate branches of government, the bicameral legislature, freedom of the press,  and so on.

In Federalist 51, Madison argued that the diffusion of sects and interests in the United States would prevent one sect from exerting majority rule, both in religious and civil life.  Read in concert with Federalist 10, in which he argued counter-intuitively that a large, extensive representative republic would be best equipped to prevent majoritarian tyranny, Madison banks on the notion that while factions would arise, under the Constitution they would not be able to garner sufficient support to establish lasting majority power. Having previously observed a host of small parties, working independently in their various states, Madison did not foresee the creation of two major parties, which was catalyzed by the national debate over the Constitution.

It is true to this day that there are many competing sects and ideologies in American politics.  Every election cycle witnesses primary battles along lines of social and economic liberalism (or conservatism), the role of libertarianism, religion, environmentalism, energy production, urban interests, the influence of corporate power and labor unions.   Instead of all exerting their influence as distinct and weak individual factions, however, they debate within the framework of the Democratic and Republican parties.   The utility of having these grand formations, these ‘big tents’, makes sense in retrospect.  But how did they come to be, and how did the first majority party, the Republicans, emerge under the leadership of James Madison himself?

In the early 1790s, as anti-Federalists increasingly coalesced into Jefferson and Madison’s Republican Party, Madison began to view the role of parties in the constitutional framework differently.   He now saw political parties as checks on each other, having conceded their existence in the political system.  He considered the governing Federalists “more partial to the opulent than to the other classes of society” and governing through “the influence of money and emoluments and the terror of military force”(p.82), while his oppositional party represented the common good.

Madison’s perspective, which progressives often tout today, is that the views of his party were in line with the majority of the people, but the Federalists, “being the weaker in numbers, would try to strengthen itself with the influential, particularly the moneyed men, the most active and insinuating influence”(p.83).  Madison warned that a minority party, bolstered by money, would work to unravel a majority coalition through exploiting prejudices and distracting the public from matters of primary concern.  In fact, Madison’s essays in the early 1790s abandoned his Federalist Paper-era concern with majority rule, and now turned to the pernicious ability of political parties to run the nation from the minority position. Anyone who has lived through the last two years can relate to that.

Other than the creation of a National Bank, Alexander Hamilton’s major initiative, domestic politics were rather non-controversial in the early years of the republic.  The first major Congressional fissure came over support for the French Revolution.  Republicans, who supported the revolutions, were labeled as anti-property radicals by Federalists, who were in turned called “Monocrats” for their alleged aspirations to restore the French monarchy.   The French Revolution polarized the two major political factions to such an extent that by 1797, Jefferson reported:

“Men who have been intimate all their lives cross the street to avoid meeting, and turn their heads another way, lest should they be obliged to touch their hats.”

One character we’ve yet to come across in this discussion in George Washington.  He suffered terribly though these years, after thinking his near-unanimous election in 1788 was a mandate for non-partisanship.  He had attempted to keep a balanced cabinet, but with the departures of Secretary of State Jefferson and Attorney General Edmund Randolph, by his second term the team was decidedly Hamiltonian, and Republican forces around the country no longer considered him off-limits politically.   In response, Washington blasted Republicans for fomenting the Whiskey Rebellion and trying to sink the Jay Treaty, and dangerously walked the line tying political opposition to sedition.  As Hofstadter explained, the American system could only work if both the ruling party and the opposition recognized each other’s legitimacy, and by the mid-1790s, this was breaking down.

In fact, Washington’s much-praised Farewell Address, written by Alexander Hamilton, was considered then a slap-down of the Republican Party.   Washington’s denouncement of factions implicates the Jeffersonian opposition, but he considered himself “a man above party”.  He cautioned people to “steadily discountenance irregular oppositions to the acknowledged authority of government”(p.98).   Failing to define “irregular opposition”, Washington was essentially telling the American people that his people running the government should not be undermined by a pernicious opposition, hardly the “let’s all get along” ethos the speech is remembered for.

Thank you for reading.  On Saturday I’ll post Part III: The Adams Administration.

 

The Evolution of Political Parties- Studying Hofstadter and the Founders

This is the first in a series analyzing Richard Hofstadter’s The Idea of a Party System. During a period when progressives’ frustration with the Democratic Party seeks constructive resolution, it is worth looking at the historical evolution of parties under the leadership of the Founders, whose very fears about political parties quickly became reality.

For more regular posts, please visit livingthedream.org.

Part I: Fears of Factions Before the Constitutional Convention

Jonathan Swift once wrote, “Party is the madness of many, for the gain of a few.”  There are certainly progressives who can relate to that, having exhausted themselves physically and financially to return Democrats the White House and Congress, only to feel deeply disappointed with the two years leading up to the catastrophic 2010 election.  While moments like this lead to grumblings about the Democratic Party, in the end, most progressives return to the fold in time for the next battle.

Distinguished historian Richard Hofstadter uncovers how this came to be in his fascinating 1969 book, The Idea of a Party System: The Rise of Legitimate Opposition in the United States, 1780-1840.

I came across the book at Housing Works, a used book store in Manhattan.  As someone who continually questions the Democratic Party, even while voting for it religiously, I thought it worthwhile to study the role the Founders sought for political parties, as well as the role they ultimately accepted for them.   Hofstadter’s thesis is that the behavior of early republican leaders, particularly Jefferson’s peaceful ascension to power in 1800, demonstrated the radical notion that an opposition party could exist and eventually take power without challenging the legitimacy of the government itself.

Thus, they overcame the stigma attached to dissenting factions, which had previously been considered (or, in fact were explicitly) treasonous.  It is interesting to consider that Republican opposition to both Clinton and Obama eschewed this first principle of political parties, as neither ever accepted the Democratic president’s legitimacy (one could argue that some liberals felt the same way about Bush, but their sentiments were not articulated by the Democratic leadership).

The Founding Fathers, Hofstadter writes, “had a keen terror of party spirit and its evil consequences, and yet, almost as soon as their national government was in operation, found it necessary to establish parties” (p.viii).  Amusingly, Hofstadter concludes the preface by noting that America in 1969 was living through “a period, certainly not the first, when discontent with the workings of the American party system is at a high pitch”(p.xi).  Indeed, in all my years of reading American history and political science, it is rare to find a period that does not consider itself at a high pitch of discontent with either American politics as a whole, or its party politics in particular.

What were the Founders concerns about political parties?  Parties “were believed only to create social conflicts that would not otherwise occur, or to aggravate dangerously those that would occur”(p.12). Sound familiar?
Another concern that rings particularly true today:

“Factions and parties will not suffer improvements to be made. As soon as one man hints at an improvement, his rival opposes it. No sooner has one party discovered or invented any ameliorations of the condition of man, or the order of society than the opposite party belies it, misconstrues it, misrepresents it, ridicules it, insults it, and persecutes it”(John Adams, p.28).

Hofstadter notes the irony that many of the strongest critics of the political parties- Hamilton, Adams, Monroe among others- were in fact its strongest partisans, each believing that the national interest could best be served by bringing everyone into the fold under his own ideas.   Perhaps, now 230 years on the way, we can concede that there is hardly such a thing as non-partisanship, and rarely will we have ‘consensus.’ Bright and powerful leaders will always have different ideologies, whether or not they have to manifest in Party form.

Hofstadter found no Americans during this period who were explicitly in favor of parties/factions, though some, like Madison, begrudgingly accepted their likelihood, and attempted to constrict them through the constitution.  In  England, however, Edmund Burke argued the virtues of factions in building consensus, mutual trust, and confidence in ideas, and laid much of the intellectual ground work for the basis of permanent political parties.  His basic definition of a party is “A body of men united for promoting by their joint endeavors the national interest upon some particular principle upon which they are all agreed”(p. 32).

Interestingly, in calling for individuals to sacrifice their own ideologies in favor of the party, he conceded that those who could not agree with the party nine out of ten times should probably find a different party.  In this “big tent” era, I doubt either Democrats or Republicans can claim many members who fit that description.

Ultimately, none of the major Founders shared Burke’s optimism.  Even as they sought the means of expression for a legitimate opposition, which could prove valuable in a nation of free peoples, permanent political parties did not seem like the answer. John Adams opined:

“There is nothing I dread so much as the division of the republic into two great parties, each arranged under its leader, and concerting measures in opposition to each other.  This, in my humble apprehension, is to be dreaded as the greatest political evil under our Constitution”(p.38).

Thank you for reading.  Part II will come on Friday.

Living the Dream

As anyone can tell, this site has been defunct for some time.   This site’s writers will continue to post a new location, LivingtheDream.org, which will be a multi-purpose site not just about politics.  As the depressing-looking 2010 elections are upon us, best of luck getting involved in your local elections and fighting for progressive, anti-corporate values.  There is a time and place for giving up: The time is never- I’ll let you figure out the place.

Credit Rating Agencies: Causing a crisis, crying “free speech!”

After Citizens United, Americans are pushing back against the corporate misuse of the people’s free speech rights.  But this battle is about more than campaign finance reform.

Add the credit rating agencies that rubber-stamped Wall Street’s toxic financial products to the list of corporations twisting the people’s First Amendment free speech rights to protect themselves from government regulation and lawsuits.   The  rating agencies assess risk in various financial products, including bonds, securities and derivatives.  The corporations that operate these credit rating agencies get paid billions of dollars for this work and include  Standard & Poor’s (McGraw-Hill Companies, $6.9 Billion annual revenue), Moody’s Corporation ($1.8 Billion annual revenue) and Fitch, Inc. (Fimalac, €560 million annual revenue).

These corporations are widely believed to have played a significant role in the 2008 economic collapse by giving unreasonably optimistic ratings to very questionable bonds, securities and more abstract creations of Wall Street, such as synthetic collateralized debt obligations. This led a number of institutional investors like local banks and municipal pension funds to unwittingly make precarious investments that ultimately went down the drain.   Observers have attributed these allegedly misleading ratings to an unhealthy conflict of interest in which financial product issuers pay rating agencies for their assessments.

You might be wondering what this all has to do with the First Amendment and free speech.  As rating agency corporations face demands for reform from Congress and a legion of angry investor lawsuits, they are hiding behind the argument that they have a corporate right to free speech, so they had no obligation to provide honest and accurate investment information.   In fact, they are claiming the same rights as journalists, which means lawsuits against them must demonstrate “actual malice”, a high legal standard to meet.  After earning billions of dollars for their rating fees, these companies are now claiming that thanks to the Supreme Court’s creation of corporate speech rights, they are not accountable for those ratings.

While the idea that corporations can use “free speech” to escape accountability for misleading investors and blow up economies may seem (and is) outrageous, the argument has had great success to date.  Of the 30 lawsuits initiated against Standard & Poor’s, five have been dropped, and Standard & Poor’s has succeeded in 12 of its 15 motions to dismiss.  One major case that has survived S & P’s motion to dismiss is Abu Dhabi Commercial Bank v. Morgan Stanley & Co. Inc.   In that case, the District Court recognized that while the courts in recent decades have indeed given rating agencies broad free speech rights in its publicly disseminated ratings, those speech rights are narrower in the context of private consultation.   In essence, when someone is paying you for private advice, you do not have a free speech right to mislead.  This case is in its early stages, and may turn on a variety of factors, including whether the ratings which privately or publicly disseminated.

While rating agencies have largely had their way in court, recent legislative efforts have been more successful. Senator Al Franken’s (D-MN) amendment to the financial reform bill would create a Credit Rating Agency Board that would pair bond issuers with rating agencies, ending the current conflict of interest.  Senator George LeMieux’s(R-FL) amendment would strip a federal requirement that had essentially funneled institutional investors to the three major rating agencies.

It remains to be seen whether either of these amendments will survive in the legislative process (including the armies of Wall Street lobbyists), but it is likely that some form of rating agency reform is imminent.  This could be a significant achievement, given the stranglehold rating agencies have had over Congress and the SEC in the past few decades.  The SEC has proposed rating agency reforms on numerous occasions from the 1990s on, only to wilt in the face of whining and pressure from the rating agencies.  Rating agencies similarly have always had a strong foothold in Congress, arranging lobbyist meetings with every member of the Senate Banking Committee during the financial reform deliberations.  In 2009, the three major rating agencies spent $4,150,000 on lobbying, and they are on a similar pace for 2010. (source: opensecrets.org)

No matter how the battle in both the courts and the legislature comes out, the corporate “free speech” trump card that is increasing used when corporations run to court after losing legislative debates must end.  Free speech is for people, not corporations. If Americans must rely on private corporations to serve as rating agencies on which our economy depends, the fabrication of a theory of corporate, rather than human, speech rights must end.

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Cross-posted at Free Speech For People.

A Coordinated Assault: How the Right Wing and Corporations are trying to pick apart clean election laws

We are all familiar with the devastating Supreme Court decision, Citizens United v. FEC that went down this January. However, corporate interests, in conjunction with the political right, have mounted a serious offensive to the entire clean election infrastructure. They are led by Republican operative/lawyer James Bopp, whose end goal is a United States “free” of campaign finance laws, where corporations can make unlimited contributions to elections anonymously.  The legal battlefield of campaign finance reform is fierce, and I’ve outlined some key cases below, which I’ll break down in greater detail once the Supreme Court releases its decisions.

For starters, check out the Campaign Legal Center, which has put together an absolutely incredible document outlining the corporate right’s grand plan for methodically eviscerating campaign finance laws.  It’s a long read, but here’s part of the intro:

Instead, their apparent goal is to go back nearly a century and dismantle many of the campaign finance reforms that have governed elections for decades, and to revert to the era of unregulated political spending that characterized the turn of the 20th Century.
It is clear that even disclosure laws – which conservatives have long championed as the only legitimate form of campaign finance reform – are under attack.
James Bopp, the attorney who initiated Citizens United and a longtime member of the RNC, for instance, has made no secret of the fact that his ultimate goal is the elimination of virtually all campaign finance restrictions including the reporting of donors.  In January, he told the New York Times that, “[g]roups have to be relieved of reporting their donors if lifting the prohibition on their political speech is going to have any meaning.”

The litigation effort against decades’ worth of campaign finance laws are concentrated in five principal subject matter areas:

I.          Attacking Limits on Use of Corporate and Union Treasury Funds
II.        Undermining Meaningful Political Disclosure
III.       Going After the “Soft Money” Ban and Coordinated Spending Limits
IV.       Challenging Public Financing Programs
V.        Attempting to Deregulate “527 Group” Spending

There are several cases we should be watching closely in the coming days and weeks.

Doe v. Reed:  This case, brought by James Bopp, representing Washington state anti-gay activists, asks the Court for a constitutional right of anonymity for individuals who sign ballot initiative petitions.
The plaintiffs feebly argued petition signatories might face dangerous retaliation for their anti-gay views.  During oral arguments, Justice Scalia mocked this concern, “The fact is that running a democracy takes a certain amount of civic courage. And the First Amendment does not protect you from criticism or even nasty phone calls when you exercise your political rights to legislate or to take part in the legislative process.”
The real purpose of this case was not to protect anti-gay Washingtonians, however, but to weaken disclosure requirements in election law. Bopp has a long term strategy to undermine disclosure requirements for corporations, so that they can funnel unlimited money into elections anonymously.
This decision could come down as soon as Tuesday.

McComish v. Bennett: This case was brought by independently wealthy and heavily funded Republicans for state office challenging the Arizona Citizens Clean Elections Act, which provides public matching funds to candidates running with only public financing. The law was passed in 1998 after a series of embarrassing scandals in which Arizona legislators were caught taking campaign bribes in exchange for votes.
The plaintiffs claim that public funding chills their free speech rights, because whenever they raise money, their opponents would receive matching funds to use speech against them.  They also claim that the reasoning behind the Arizona Citizens Clean Elections Act was undercut by the Supreme Court’s holding in Citizens United that campaign spending was not inherently tied to corruption. The Ninth Circuit soundly rejected both arguments, finding that the Arizona law responded to an important state interest in promoting clean elections, and that the candidates’ speech rights had not been chilled.
Now the plaintiffs have asked Justice Kennedy to stop Arizona from distributing public matching funds until the Supreme Court hears the case.  Justice Kennedy will probably bring the case to the conference and issue some sort of decision in the coming days. Imagine, the Arizona government actually on the right side of justice in this case…

Credit rating agency cases:  As lawsuits and legislatures go after the credit rating agencies that misled investors, rating agencies are hiding behind the First Amendment. It’s an argument we’ve seen time and time again from corporations, who claim free speech to shake off regulation and dupe consumers.  I’ll be giving this issue its own full post soon, but here’s the legal issue in a sentence: Rating agencies are claiming the same First Amendment rights as news organizations, arguing that an “actual malice” needs to be applied to their thoroughly misleading bond ratings, which cost investors millions.  This difficult to meet legal standard is not invoked for information that is privately disseminated, so expect that to be the key issue in a number of suits going forward.

Corporations will not rest until they can run rampant over the American people, and they have an army of corporate lawyers helping them.  Unless you are an attorney with lots of pro-bono time on your hands, there is not much you can do to help win the cases, but we need all hands on deck to get this critical issue out there. The silver lining of Citizens United was alarm bells it set off as corporate thugs and their robed cronies were stealthily trying to rewrite the Constitution.

So, spread the word, tell the people, and fight back. Fight back in your local paper, in your state legislatures, and in the upcoming elections.  And pace yourself, because the battle for clean elections is one for the long haul. Without clean elections, all other issues will die a quiet death.

……………..
In the interest of full disclosure, something that I support as policy, I am assisting two coalition groups, Free Speech for People and Move to Amend.  Both groups are focused on passing a Constitutional Amendment to address the role of corporations in elections (and possibly the larger issue of corporate personhood- but that’s a topic for another time).  They are both involved in waking people up to this corporate assault on democracy.

Letter to Representative Nadler

Dear Congressman Nadler,

Thank you for your service to our district.   You have long been our Congressman, and will likely serve in that capacity until you choose to retire.  That is why we are writing you to express concern with the state of campaign finance reform in the United States, and your own role with respect to this issue.

While you have generally supported progressive legislation regarding campaign finance reform, including the Fair Elections Now Act, I wonder why you do not set a stronger example for your fellow Congressmen with your actual fundraising behavior.  This election cycle (09-10) you have raised nearly a million dollars, including over $277,000 from PACs, which we believe have a deleterious effect on the democratic process.   Everyone knows that you will win any primary or general election challenge easily, if one even exists. Do you really need to raise this much money, especially from PACs?

The recent D.C Circuit ruling in Speech Now, following on the heels of Citizens United, will allow for unlimited donations to PACs, increasing their undemocratic roll in the election process.  Why would you embrace the PAC system, when other Democrats have been able to fundraise sufficiently without using them?

Your two biggest donors, according to OpenSecrets.org, are Newmark Knight Frank and the Loews Corporation.  The former describes itself as a major global real estate investor; in fact, real estate is the largest source of your contributions.   We have long understood the real estate lobby in New York to be opposed to the interests of renters, who make up the overwhelming majority of your constituents.  If we are inaccurate in that assumption, please let us know.  More troubling is the Loews Corporation, which touts itself, among other things, as a major oil and gas explorer.   In fact, Loews is a majority shareholder in Diamond Offshore Drilling, which, as the name suggests, engages in off-shore drilling.  We are not sure why your fundraisers feel that you need to bring in money from these dubious sources, and regardless of your voting record, it troubles us to think what kind of access these corporations believe they are buying.

Mr. Nadler, you will have our support for Congress in 2010, as you always have. But with the system in Washington as broken as it is, we need more representatives who will lead by example, particularly when their stature and electoral situation affords them the ability to do so.

Sincerely,

Janos Marton and Cristina Castro

An Earnest Letter Writing Campaign Begins

This week we are going to begin participating in a tradition as old as the republic- writing a letters to our elected representative.  We are not sending an email, or an electronic petition, or a form letter signed on the street, but rather a real letter, with stamps and everything.  There is general consensus that elected officials and their staffs are more likely to respond to snail mail, probably because the extra effort that goes into sending a letter demonstrates a more intense commitment to an issue than an email.

Our first set of letters will deal with the issue of campaign finance reform.  Some progressives will dislike the idea of focusing critical energy on people like Jerrold Nadler (the recipient of our first letter). After all, isn’t he one of the good guys?  But these letters are not intended to be adversarial, and as an important Congressman from Manhattan and Brooklyn, Mr. Nadler seems like a perfectly appropriate official to send our questions to.  Furthermore, if a self-described liberal with little election opposition cannot practice sound fundraising practices, who in this Washington climate can?  The first letter, dealing with some of Mr. Nadler’s major donors, will be sent tomorrow, at which point its contents will be posted on the website.  We will also post any response his office sends us.

The Bull Moose Movement’s main goal is increasing civic engagement, and not focusing on the top-down model of elections and advocacy for specific bills.  However, if indeed letters are a more substantive way to engage elected officials than other approaches, that is a worthwhile tool to pass on to people looking to advocate for themselves and help formulate the policies that will affect their lives.  Rather than push for individuals to co-sign pre-written letters, we will push for people to write letters reflecting how they feel about their government’s policies- if the politicians will listen.