Brennan Center for Justice

Filibluster: Senate Rules Deal Yields Good and Bad News

Jonathan Backer — 2013-01-29T23:29:23+00:00

Senate leaders Thursday adopted a bipartisan package of rules changes designed to smooth Senate procedure and curb government gridlock, but the dream of truly reforming the filibuster came to an end (for now). Advocates spent months pushing for significant change. Although this package fell well short of that goal, reformers didn’t come away empty handed.

After one of the least productive Congresses in history, Senate leaders knew something needed to change. In July, Majority Leader Harry Reid described that state of Senate paralysis in stark terms. “I think what has happened the last few years of changing the basic rules of this Senate, where we have not 50 votes to pass something but it takes 60 on everything, I think that's wrong,” Reid said. Without substantial change, Reid said the Senate would continue to be “inoperative.”

There is a clear empirical basis for the problem Reid described. During his six years leading the chamber, Reid faced 391 filibusters. In the six years prior, Majority Leaders faced 201 filibusters. This rampant obstruction hit its mark, with the Senate passing only a mere fraction of its own bills. At its peak efficiency in the 1950s the Senate passed 27 percent of bills originating in the chamber. In the recently concluded Congress, it passed a record-low 3 percent of its bills.

Despite the severity of the problem and Reid’s apparent determination to fix it, the negotiated package of reforms is pretty tepid. Nevertheless, months of debate about Senate dysfunction and passionate grassroots involvement on the issue did achieve some progress.

Bad News:

Senate Republicans were more than happy to endorse the procedural changes because, in Sen. Johnny Isakson’s (R-Ga.) words, “The rules change doesn’t really do a lot.”

The procedural changes will do next to nothing to address the core issue Reid identified. The package will provide new ways for the majority leader to avoid or expedite filibusters on motions to begin debate on legislation, reduce the number of opportunities to delay reconciliation of differences between House and Senate legislation, and streamline consideration of some of the more non-controversial nominations. At best, the changes will enhance the majority’s ability to navigate obstructionist activity. It will not, however, in any way discourage or impede even the most frivolous filibusters.

Moreover, Reid’s retreat from invoking the “constitutional option” engrains the harmful narrative that the Senate can insulate its rules from changes by future Senates. It also indirectly lends credence to the patently false suggestion that the filibuster is part of the constitutional framework or the Framers’ original intent — it’s not. The original Senate had a procedure to end debate by a simple majority vote, and the Framers explicitly rejected supermajority requirements for most legislative actions in order to avoid the pitfalls that bedeviled the country under the Articles of Confederation. The Senate, except when considering the weightiest issues such as removing a president from office or amending the Constitution, is supposed to operate by majority rule.

In a rundown of the finalized deal, an unnamed Senate staffer shed some light on why some Senators were reluctant to embrace more substantial reform.

[T]he constitutional option could be used to hurt us someday when President Rubio teams up with Speaker Cantor and Leader McConnell... What happened this week in Virginia much less Ohio, Michigan, and Wisconsin the past several years should make progressives more circumspect about the value of mechanisms, like the filibuster, that preserve minority rights.

To paraphrase the Rolling Stones, in democracy, you can’t always get what you want, but with responsive and majoritarian political institutions, you just might find, you get what you need. The country faces grave challenges. Neither liberals nor conservatives possess all of the answers, but a rigid status quo is definitely not the solution. If we are to contend with deeply entrenched problems such as the country’s long-term debt obligations, climate change, gun safety, and immigration then majorities must have an opportunity to implement their agenda.

The Good:

Despite the limited nature of the procedural changes, the Senate secured the first change to the filibuster rules in nearly 30 years. Rather than settle for a handshake deal to improve the working of the Senate, as the chamber did in 2011, Reid secured actual rules changes. There is a growing realization that self-policing does not ensure functional government. This sets the table for more meaningful progress if the modest changes prove unequal to the task of overcoming gridlock.

Moreover, a young group of reform-minded senators made clear that this marks only the beginning point for Senate Rules reform. Sens. Jeff Merkley (D-Ore.) and Tom Udall (D-N.M.) worked tirelessly and tenaciously to get the best deal possible, and freshman Sens. Tammy Baldwin (D-Wis.), Martin Heinrich (D-N.M.), Tim Kaine (D-Va.), Angus King(I-Maine), Chris Murphy (D-Conn.), Brian Schatz (D-Hawaii), and Elizabeth Warren (D-Mass.) all made good on their campaign promises to fight for meaningful change by co-sponsoring S. Res. 4, the more robust rules reform package.

This young group of leaders activated the grassroots to demand reform. The drumbeat will only grow louder if obstruction continues during the 113th Congress.

Fourth Circuit Upholds Most of Challenged W. Va. Disclosure Laws

David Earley — 2013-01-25T20:21:51+00:00

On January 18, 2013, the Fourth Circuit Court of Appeals upheld a majority of West Virginia’s disclosure law in a victory for transparency in elections. The decision in Center for Individual Freedom v. Tennant agreed with several arguments the Brennan Center made in an amicus brief filed in December 2011.

West Virginia law includes a provision requiring disclosure of those who contribute to organizations that sponsor “electioneering communications” — political ads that mention a candidate and are released within a certain number of days before an election. In ruling on a 2008 challenge to this provision, the trial court imposed an “earmark only” rule under which only donors who specifically earmark donations for the purpose of supporting a particular electioneering communication need to be disclosed.

The Brennan Center’s amicus brief explained that this judicially imposed rule mimics federal policy and is wholly ineffective: savvy donors easily avoid disclosure by refraining from earmarking their donations, but give them with a wink and a nod, knowing they will be used to pay for political advertisements.

The Fourth Circuit agreed and reversed the district court, restoring the broad transparency rule. This important ruling makes clear that an earmarking requirement is not constitutionally mandated when states seek disclosure of underlying donors, and that states can constitutionally require disclosure of those who fund electioneering advertisements. If an individual or entity funds an organization that engages in political spending and the donor does not prohibit the funds from being used for political purposes, the states can require the organization to disclose the donor.

The Brennan Center also urged the court to uphold West Virginia’s inclusion of ads in newspaper and print periodicals as electioneering communications that must be disclosed. At the federal level, only broadcast media—TV and radio—are included in the definition. If an entity makes an electioneering communication, that expenditure must be reported and publicly disclosed.

Following the 2004 election, West Virginia expanded on the federal definition of electioneering communications to include many other types of media: direct mailings, telephone banks, billboard advertisements, and periodicals. Early on in the litigation, the district court cast doubt on this broad coverage and the state narrowed its law to only include broadcast and printed periodicals.

The Fourth Circuit affirmed that West Virginia can constitutionally require disclosure of both broadcast and non-broadcast media, observing that “there is no reason why the public would not have [the same] interest in knowing the source of campaign-related spending . . . [in] print” as it does in broadcast ads. The Court concluded that only covering print advertisements — and not billboards, robo-calls, and direct mail, as West Virginia originally had — was underinclusive, and struck the print ad provisions from the law before sending it back to the lower court. Nonetheless, the opinion was clear that the state may constitutionally require disclosure of extensive media beyond the broadcast communications covered under federal law. The West Virginia legislature should waste no time in accepting the court’s invitation and reenacting its original, robust disclosure law.

NY Attorney General Calls for Comprehensive Campaign Finance Reforms

David Earley — 2013-01-25T17:02:00+00:00

Last week, New York Attorney General Eric Schneiderman held a public hearing on his proposed regulations to require charities operating in New York to disclose their political spending. Testifying on behalf of the Brennan Center, I observed that these regulations are an essential first step to protect voters, social welfare organizations, and their donors from lax law enforcement by the Federal Election Commission and the IRS. But ultimately, as the Attorney General correctly recognized, more comprehensive action is required to limit the influence of money in politics.

The Attorney General’s new rules would require charities operating in New York State to disclose both the amount and percentage of their expenses spent on elections, regardless of where the elections take place. Additionally, any nonprofit that spends at least $10,000 in New York state and local elections would be required to disclose the names of all donors who gave at least $100 to the organization in the past year.

NYC Council Speaker Christine Quinn, NYC Public Advocate Bill de Blasio, former NYC Comptroller Bill Thompson, and NYC Council Member Letitia James all spoke in favor of the regulations at the hearing. Their voices joined a chorus of good government groups supporting the regulations, including Common Cause New York, Public Citizen, Citizens for Responsibility and Ethics in Washington (“CREW”), and Citizens Union, as well as Columbia Law Professor Richard Briffault.

In his remarks, Schneiderman made clear that the proposed regulations are only the first step in a three part plan to address the issue of money in politics. First, he said, there must be a “long-term strategy to address the unregulated flows of money into the political process.” Second, “we must demand total transparency . . . We have to have full knowledge and disclosure of where campaign cash comes from and what it’s spent on.” Finally, we must “expand public campaign financing systems like the successful program . . . in New York City.”

The Attorney General explained that this strategy must include building a factual record to support the overturning of Citizens United. Schneiderman stressed, however, that his office could only address state and local elections because of the preemption doctrine and that the regulation of federal elections must occur at the federal level.

The people must have faith in their government, which means that the dangers of corruption and the appearance of corruption that stem from large political spending must be curtailed. Transparency allows voters to know who is trying to influence them as well as their elected officials. Finally, the importance of public financing, both in New York State and elsewhere, cannot be overstated. Under Citizens United, the amount of money spent supporting candidates cannot be limited. Public financing is an essential means of combating the money deluge by, providing candidates of all stripes with noncorrupting funds to give them a chance to get their names into the public sphere and compete with the established, the well-connected, and the wealthy.

Attorney General Schneiderman added that we should “work to see that [public financing] comes to pass this year” in New York State. Fortunately, a broad coalition has already mobilized to ensure the legislature and Governor Cuomo will work together to make it a reality. If these efforts succeed in establishing public financing in New York, the Empire State will truly be the national leader in reducing the importance of big money in politics.

Governor McDonnell Should Veto Virginia�s GOP Redistricting Gambit

Keesha Gaskins — 2013-01-23T22:34:55+00:00

The 20-20 divided Virginia Senate took extraordinary action to drastically rewrite the district lines for 45 percent of Virginia’s residents on Inauguration Day. On January 21, 2013, State Senator Henry March—a Civil Rights Activist—left the state to attend the inauguration of President Barack Obama. The Virginia Senate quickly moved to take advantage of his absence and introduced, amended and passed an amendment to a House bill making technical changes to the 2011 redistricting lines.

By the time the temporarily Republican-controlled Senate was done with the technical fixes presented by the House, it had fully rewritten a number of senate districts—displacing almost 2 million Virginia residents into new districts. While the current Senate is evenly split with 20 Democrats and 20 Republicans, some estimates suggest that the newly-proposed lines might result in a far more lopsided chamber even though there has been no significant change in the makeup of Virginias's electorate in the 19 months since the previous lines were approved. The proposal could put Republicans in position to win 27 seats in the Senate at the next election, which would give Republicans a veto-proof supermajority in the chamber. This bill, as amended, passed on a party-line vote, 20 to 19, with Sen. March absent.

Beyond the stunning political chicanery of holding a vote while a state senator attended the presidential inauguration, the legislative processes also violated basic principles of transparency and representation necessary for fair redistricting. The legislation was introduced and passed in less than one day. There were no hearings, no opportunity for public comment, no advance publication of the district lines or any other opportunity for the public to understand the new lines or the impact on their legislative districts. Gov. Bob McDonnell has publicly condemned and distanced himself from the actions of the Senate Republicans but has not gone so far as to promise to veto the legislation. The Virginia House heard the revised bill on Tuesday and a final vote is expected later this week.

This attempt by Virginia’s Senate Republicans to rewrite the district lines after the 2011 lines were signed into law raises serious constitutional questions. Virginia’s constitution requires that redistricting occur in 2011 and every ten years thereafter. It does not provide for any other time for redistricting, although it does not expressly preclude it. But in 2011, Richmond District Court Judge Richard D. Taylor, Jr., in a decision addressing a dispute regarding timing of Virginia’s most recent congressional redistricting, reasoned that Virginia’s General Assembly does not have the authority to reapportion districts any time it chooses.

Given its timing, the amendment appears to be a political power grab by Virginia’s republican senators—that may very well be unconstitutional. The passage of this bill by Virginia’s senate represents the worst type of procedural manipulation and demonstrates contempt not only for a fair legislative process but also for Virginia’s citizens who were denied the opportunity to be heard on key legislation that will decide how they are represented for at least the next decade. Without question, there will be costly litigation if this bill is passed into law—some of it already promised by the Democrats.

This political gambit is poorly played with ill-considered consequences. Should this measure pass the Virginia House, Governor Bob McDonnell ought to veto this bill.

Tying Presidential Electors to Gerrymandered Congressional Districts will Sabotage Elections

Keesha Gaskins — 2013-01-22T19:25:34+00:00

Recently Wisconsin, Pennsylvania, and Virginia introduced legislation to make the distribution of electoral votes for president dependent on the votes in each congressional districts instead of statewide results. Legislation to that effect has been introduced in Michigan, Wisconsin, and Virginia, and there are serious discussions in Pennsylvania. Legislators in states like Florida and Ohio also may introduce similar legislation. Currently, only Maine and Nebraska (a state with a unicameral, bipartisan legislature) allocate their electoral votes in a similar fashion.

Most critics of this plan identify it as a scheme by the GOP to rig the election to improve its chances to elect a president. But there are a number of reasons to object to this proposal beyond its partisan intent or impact. Significantly, it would import into the presidential election process the dysfunction that plagues the congressional districting process. The problems with redistricting include not only partisan gerrymandering but also citizen exclusion from the redistricting process, imbalanced districts based on prison-based gerrymandering, and chronic problems with Census undercounts.

An increasing number of congressional districts also reflect calculations by those in power about how they can best preserve their power. Incumbents carve the citizens of their state into districts for maximum personal and partisan advantage. Democracy suffers while neighborhoods are split, competing candidates are drawn out of districts, and groups of voters are ‘cracked' or ‘packed' to manipulate their voting power. Most recently we saw single party legislative control of the redistricting process in most states – Democrats controlled redistricting in 6 states and Republicans controlled redistricting in 17 states. Some of the most egregious plans came from Republicans in Wisconsin, Pennsylvania, North Carolina, and Michigan; and Democrats in Illinois and Maryland. In all of those states, partisans manipulated districts to disproportionately benefit the party drawing the lines; it would be an injustice to use those same district lines to determine the allocation of electoral votes in a presidential election.

Proponents of this change assert that since presidential candidates do not win 100 percent of the votes in a state, awarding electors based upon the results in congressional district is more representative of how voters voted. This would only be true if congressional districts were drawn to fairly represent citizens, rather than to protect political parties.

The Cook Political Report tells us that despite already having a majority of the popular vote, the current district lines make it almost impossible for the Democrats to win control of the House of Representatives. Specifically, “Democrats might need to win nearly 55 percent of all House votes cast in order to win a majority at any point in the coming decade. In 13 of the last 15 cycles, neither party has hit 55 percent of the vote.”

In the 2012 election, President Obama won both the popular vote and the Electoral College. Yet the GOP maintained control of the House in spite of the fact that the popular vote went to Democratic candidates for the House of Representatives. While 2012 is the most extreme example of partisan redistricting control – it is not the only example.

Redistricting prevents the true voice of the people from being heard time and time again. In 1980, Republicans broke even, winning 49% of the popular vote, while Democrats won 56% of the seats. Similarly, there was an especially large gap between the Republican percentage of the vote in 1990 with Republicans winning 46% of the popular vote, but only 38% of the House seats. These examples demonstrate that time and again, allocating electoral votes based upon congressional districts is not necessarily reflective of the national popular vote.

Unquestionably, redistricting processes are desperate for reform. We like to think that voters choose their politicians, but in the redistricting process politicians often choose their voters. States like Arizona, California, Florida and others are adopting more independent and transparent redistricting processes, but the mechanisms remain vulnerable to partisan machinations. Certainly, well-designed redistricting systems can help ensure that the voices of voters are heard and can inspire public confidence in both a process and an outcome recognized as fair. Until that happens, however, we should not permit the problems that infect redistricting to contaminate our presidential elections.

Money in Politics This Week

Syed Zaidi — 2013-01-18T20:13:09+00:00

Crossposted at ReformNY

Every Friday, the Brennan Center will be compiling the latest news concerning the corrosive nature of money in New York State politics—and the ongoing need for public financing and robust campaign finance reform. We’ll also be linking to dispatches from around the country highlighting the national scope of this crisis. This week’s links were contributed by Syed Zaidi.

For more stories on an ongoing basis, follow the Twitter hashtag#moNeYpolitics and #fairelex.

CAMPAIGN FINANCE REFORM AND ETHICS NEWS

NEW YORK

Brennan Center Testifies at NY Attorney General’s Hearing on Dark Money
Last year, Reform NY informed readers about new regulatory proposals by New York State Attorney General Eric Schneiderman to enhance the disclosure of expenditures and donations by political groups masquerading as non-profits. The new regulations would require all non-profits, including 501(c)(4)s — that spend at least $10,000 annually to influence state or local elections in New York — to file itemized schedules of expenses and contributions greater than $100. The disclosures will subsequently be available to the public. At a hearing held on the matter this Tuesday in Lower Manhattan, three mayoral contenders — City Council speaker Christine Quinn, Public Advocate Bill DeBlasio, and former New York City Comptroller Bill Thompson — along with a host of good-government groups testified in support of the rules. “Many of these groups have names that are nearly incomprehensible,” Schneiderman said regarding the numerous 501(c)(4)s with dubious names. "It would be funny to set up a fake game show: put the name up and then have people guess what the organization actually cares about," Quinn added. David Earley, counsel at the Brennan Center for Justice, testified on the organization’s behalf. “At least $317 million was spent in the most recent election cycle by groups that conceal their donors,” he stated. Although federal law requires the disclosure of donors whose funds are employed for “express advocacy and electioneering communications, toothless rules adopted by the FEC have eviscerated this requirement, allowing most politically active 501(c)(4)s to avoid publicly reporting any of their donors,” according to Early. The Brennan Center further assured that the proposed regulations meet legal muster and rest on firm constitutional ground.

The New York Times Editorializes In Favor of Corporate Disclosure
Schneiderman is not the only one pushing for disclosure. Reform NY reported last week about New York State Comptroller Thomas DiNapoli, who is seeking disclosure of political contributions from corporations that the state pension fund holds stock in. DiNapoli has filed suit against Qualcomm, a computer chip producer, requesting information regarding its political involvement. Delaware law gives shareholders the right to inspect the books and records of a corporation for such information, and the New York State pension fund holds $378 million shares in the company. This week, The New York Times has come out in favor of DiNapoli’s effort. “It is bad enough that the flow of political money into American campaigns grows bigger by the year — the 2012 elections were the costliest ever. It’s even worse when the public is to be kept in the dark about who’s doing the spending. Big stockholders like New York’s pension funds can bring much-needed openness to a murky process.”

Siena Poll: Support for Campaign Finance Reform Still Strong and Wide
In the New Year, New Yorkers appear to support Governor Andrew Cuomo’s third year agenda by broad margins, with 71 percent viewing him as favorable, according to the latest Siena College poll. On the issue of campaign finance reform, New Yorkers demonstrate consistent support for the idea once again across various demographics. When asked about a statewide plan to adopt “a system of public campaign financing in New York that would limit the size of political contributions to candidates and use state money to match smaller contributions made to candidates for state offices,” 59 percent of voters backed the idea and only 36 percent opposed it. A majority of New York City residents, suburbanites and upstate dwellers, as well a large swath of voters across all age groups, races and religions showed support for the initiative. Disclosure of campaign donations above $500 within 48 hours received even greater approval from voters, with 79 percent behind it and merely 18 percent against. The Siena Research Institute report summed it up well: “While Republicans are closely divided on public campaign financing, it is supported by a majority of independents and two-thirds of Democrats, and more than three-quarters of voters from every party support quick disclosure of contributions greater than $500.”

NATIONAL

Senators Murkowski and Wyden Initiate Bipartisan Disclosure Proposal
Senator Lisa Murkowski (R-AK) and Senator Ron Wyden (D-OR) are undertaking a new legislative initiative to make federal elections more transparent and accountable. The measure would require any organization spending $500 or more on federal political activity to disclose its donors in “real time,” and at every point from “candidacy to advocacy.” It would also require “joint regulations and guidance” from the Internal Revenue Service and the Federal Election Commission to close the legal loopholes that enable dark-money campaign operations. Currently, the FEC is stymied by partisan gridlock and the IRS considers 501(c)(4) political groups to be “social welfare” non-profits. The consequences are evident: for Karl Rove’s Crossroads GPS, which spent $70 million this election cycle, still has the ability to keep its donors secret. Both lawmakers complain that decision-making in Congress “is often colored by the prospect of facing $5 million in anonymous attacks ads if a member of Congress crosses an economically powerful interest ... The anonymity of much of this spending encourages ads that lower the level of political discourse and makes it harder, not easier, for Americans to make informed decisions.” Senator Murkowski is the first Republican in the Senate to support robust disclosure. She deserves much praise for her conviction to challenge partisan deadlock and her courage to stand up to mega donors.

National Rifle Association: Lobbying and Campaign Muscle
Following the tragic incident in Newtown, Connecticut, the National Rifle Association is flexing its lobbying muscle to ensure that gun control remains off the political agenda in the New Year. The NRA has enlisted high profile firms including Forbes-Tate and the C2 Group on the Democratic side and GOP heavyweights like Crossroads Strategies, SNR Denton and Shockey Scofield Solutions, and an in-house team of K Streeters like Chris Cox and James Baker. Of the 435 members of the House, 205 received contributions from the NRA during their last campaign. Of these Representatives, 29 garnered more than $4,000 from the NRA. The list of top recipients includes Eric Cantor (R-VA) and Jim Matheson (D-UT), both ardent opponents of gun laws. In the Senate, 42 out of the 100 members have received donations from the NRA this past election cycle—an average of $6,067 contribution per member. Eleven Senators earned more than $7,500 from the NRA, including Senate Minority Leader Mitch McConnell (R-KY) and Roy Blunt (R-MO).

New Data on Presidential Campaign Contributions
New analysis by the Campaign Finance Institute reveals the numbers behind the plethora of contributions during the 2012 Presidential election. President Obama’s campaign committee raised $782 million in 2011-12, compared to $494 million by Governor Romney. When the joint fundraising committees and the two national party committees are considered, Obama’s contributions come to $1.1 billion, while Romney’s increase to $1.0 billion. Although small donors are becoming more common due to the ease of electronic contributions, both candidates were still heavily dependent upon big donors. The Obama campaign raised 39 percent of its money from donors that gave $1,000 or more, while the Romney campaign earned 66 percent of its funds from these contributors. At the other end, 28 percent of Obama’s donations were from small donors (those who gave $200 or less). Small donors accounted for 12 percent of Romney’s campaign contributions.

Judicial Election Spending Rises Dramatically After Citizens United
The ramifications of the Citizens United decision were not constrained to the Presidential election; they were also felt in judicial races around the country. A record $29.7 million was spent on ads in State Supreme Court elections, and more than half of this money came in the form of independent spending. This flood of campaign cash from narrowly oriented groups may generate conflicts of interest, and already threatens to erode public confidence in an impartial judiciary. The Center for American Progress compiled a list of judges in 2012 that raised and spent $1 million or more, or had more than $1 million spent on their behalf by independent groups. In North Carolina, the state’s public financing program was overwhelmed by money from the Chamber of Commerce and Americans for Prosperity, as well as tobacco companies. Overall independent groups spent $2.5 million on the North Carolina Supreme Court race. The Republican State Leadership Committee, which helped draft the recent redistricting maps for the state, donated $1 million to Justice Paul Newby. The Supreme Court is set to hear a challenge to those maps this year. In Michigan Supreme Court races, the Michigan Association of Realtors spent $400,000 on ads for Justices Stephen Markman and Brian Zahra after both joined a 2011 opinion that made it easier for mortgage companies to foreclose on homeowners. Meanwhile the Democratic Party spent $5 million supporting Justice Bridget Mary McCormack. Her campaign also collected more than $600,000 with the help of large donations from unions.

Maine Clean Elections at Risk of Getting Axed
Maine was the first state in the country to adopt a full public financing system following voter approval of the Maine Clean Elections Act of 1996. Under the law, legislative and gubernatorial candidates are provided with public funds for their campaigns if they can collect the required number of small donations. In the 2012 state legislative elections, 62 percent of candidates opted into Clean Election funds even in the face of heavy attack ad spending by independent, third-party organizations. Despite the program’s popularity, Governor Paul LePage’s budget proposal seeks to cut $4 million in disbursements from the Maine Clean Elections fund over the next four years. According to Andrew Bossie, executive director of Maine Citizens for Clean Elections, “the governor’s proposal to kill Clean Elections would ensure that big-money special interests dominate our elections in 2014. Maine citizens demanded Clean Elections to ensure that government is accountable to voters, not the highest bidding wealthy donors.”

Voting Rights Cannot Be Ignored

Carson Whitelemons — 2013-01-18T18:27:21+00:00

A new year means new opportunities. It is 2013, and our democracy should not have to suffer through another cycle of rancorous, partisan, and business-as-usual politics — there is too much we need to fix.

In Virginia, Republican Gov. Bob McDonnell already seized the opportunity of a new legislative cycle to support wide scale voting rights restoration for people with past criminal convictions. Yet already, Virginia legislators squandered the chance to move beyond partisanship by voting against restoring rights.

Virginia is one of only four states in the nation that permanently disenfranchises those with past criminal convictions unless they individually apply to the governor to have their rights restored. The legislation McDonnell supported would have ended this exceptionalism and automated voting rights restoration for non-violent offenders, an important step toward ensuring that people living and working in their communities are given full access to the democratic process. On Tuesday, this legislation stalled in the Virginia House before even being considered by a full committee. Legislators who voted down the proposal expressed satisfaction with the current system — a system with bureaucratic and financial hurdles that force the vast majority of persons with felony criminal convictions to remain second-class citizens well after they have served their time.

It is hard to reconcile this legislative complacency with the visible human cost of Virginia’s exceptionally restrictive policies. Bennett Barbour, who passed away last week, was wrongfully convicted of rape charges in 1978 and recently exonerated. His path to regaining his right to vote, like other Virginians with past criminal convictions, was intensely burdensome and complicated. Fortunately, the Innocence Project, with support from the larger community and McDonnell himself, helped Barbour regain his rights and cast his first and last ballot this past election. “You don't know what this means to me,” Barbour repeated to those assisting him as he voted for the first time in 34 years.

McDonnell should be commended for streamlining the voting rights restoration process in Virginia so that 4,400 people, including Barbour, have had their voting rights restored during his tenure. But there are 100 times that many people with past criminal convictions living in Virginia. McDonnell has made voting rights restoration legislation a priority because the current system does not go far enough. McDonnell understands that individual action by a governor is all too easily undone by future administrations, as we have seen in the restrictions of voting rights in Iowa and Florida.

Only a week into the new legislative session, lawmakers in Virginia have wasted the opportunity presented by McDonnell to move beyond politics-as-usual. Perhaps worse, they have attempted to deprive the public of a vital debate regarding both public safety and the strengthening of our democracy. The human consequences of continuing these policies are clear: Voting is an intensely meaningful act that in Virginia has been denied to those with past criminal convictions for far too long. It is a new year, and McDonnell’s strengthened support of voting rights restoration is a signal of future change that cannot and should not be ignored.

Money in Politics This Week

Syed Zaidi — 2013-01-11T20:18:52+00:00

Crossposted at ReformNY

For more stories on an ongoing basis, follow the Twitter hashtag#moNeYpolitics and #fairelex.

CAMPAIGN FINANCE REFORM AND ETHICS NEWS

NEW YORK

State of the State: Gov. Cuomo Once Again Calls for Public Financing
In his 2013 State of the State Address on Wednesday, New York Governor Andrew Cuomo reemphasized his support for comprehensive reform of the state’s campaign finance laws including effective disclosure, lower contribution limits, and public financing. The Governor asserted that public financing would strengthen small donors and embolden them to participate in the electoral process. “It works well in New York City, it will work well in New York State,” Cuomo stated. Cuomo proposed requiring all political and lobbying contributions over $500 to be disclosed within 48 hours. The Governor also announced plans to lower contribution limits across the board. Currently, New York has the highest limits for political contributions among states that bother to limit them at all. Our representatives in Albany are also far too dependent on a few large donors, but the Governor’s plan would give regular New Yorkers are stronger voice than they have now.

Ed Koch and Peter Zimroth Support Reform in New York Daily News
In a recent op-ed in the New York Daily News, former New York City Mayor Ed Koch and former New York City Corporation Counsel Peter Zimroth ask Albany to empower small donors. The current campaign finance system in New York, they argue, breeds cynicism and distances citizens from their government. Sky-high contribution limits — $41,000 for statewide races in the general election — mean that candidates spend more time courting big donors, who in turn exercise disproportionate influence over policy-making. “The end result is that the vast majority of citizens who can’t afford to make big donations feel shut out, and in many cases actually are.” Both Koch and Zimroth view New York City’s small donor matching funds system as a good model for financing state elections. Several good government organizations have supported this reform initiative for decades. However, for the first time, the New York business community is joining in. Prominent New Yorkers in business, finance, real estate and philanthropy, are coming together under the banner of NY LEAD. “They are fed up with elected officials not doing the people’s business and sick of reading about corrupt state officials being indicted. And as the ones on the receiving end of so many fund-raising pleas, they know that elected officials are spending too much time courting big donors and not enough time doing the people’s business.”

State Comptroller Files Suit Against Qualcomm for Political Records
Last year, we informed Reform NY readers about Attorney General Eric Schneiderman’s effort to crackdown on non-profit 501(c) groups engaging in secretive political spending. Last week, we learned that New York State Comptroller, Thomas P. DiNapoli, is seeking disclosure of political contributions from corporations in the state pension fund. DiNapoli is obligated to protect the value of the pension fund’s investments, which include $378 million shares in tech giant Qualcomm. The pension fund requested information about Qualcomm’s political spending through letters and shareholder resolutions. After failing to receive a response, DiNapoli filed suit against the firm in Delaware, seeking to examine corporate accounts for contributions to non-profits that do not report their donors. “Without disclosure, there is no way to know whether corporate funds are being used in ways that go against shareholder interests,” DiNapoli said in a statement released last Thursday. “How is the spending raising the bottom line of the company?” he added on YNN on Monday.

NATIONAL

DISCLOSE Act Re-introduced in Congress
On the first day of the 113^th Congress, Representative Chris Van Hollen (D-MD) re-introduced the DISCLOSE Act, calling it a “first step to clean up the secret money in politics.” The legislation would require all corporations, unions and Super PACs to report campaign expenditures in excess of $10,000. Reform is desperately needed after more than $213 million in undisclosed spending by organizations with anodyne names like the “Coalition to Protect Seniors” and “Citizens for Strength and Security” during the 2012 general election cycle. David Early, counsel at the Brennan Center, explains in The Hill that the DISCLOSE Act rests on firm constitutional ground. The Supreme Court has commended disclosure, stating that it allows voters to be better informed about the messages they receive and holds elected officials accountable for their actions. According to the Supreme Court, “disclosure requirements may burden the ability to speak, but they impose no ceiling on campaign-related activities and do not prevent anyone from speaking.” It is beyond time for these secret spenders to come out of the shadows.

Fiscal Cliff Deal Preserves Huge Tax Breaks for Powerful Interests
As Congress welcomed the New Year by barely averting the fiscal cliff, special interests made sure their kickbacks were not sacrificed in the process. Tax levels reverted to higher rates for payroll taxes, but NASCAR, Hollywood, mining companies, renewable energy firms and U.S. multinationals all preserved or expanded their tax breaks and subsidies. The American Tax Payer Relief Act included several deductions and credits for favored industries. General Electric was one of the biggest winners. Section 322 of the bill allows multinationals to shift profits to offshore financial subsidiaries and thus avoid paying U.S. corporate income taxes. This exception played a central role in GE paying $0 in taxes in 2011 even with $5.1 billion in U.S. profits. GE’s PAC contributed $2,000 to Senator Max Baucus, the chief architect of the fiscal cliff bill, for a total of $10,000 for the election cycle. The legislation also extends tax breaks for racetrack owners estimated at $43 million, a provision that was presented in 2011 in the Motorsports Fairness and Permanency Act, sponsored by Senator Debbie Stabenow (D-MI) and Representative Vern Buchanan (R-FL). In 2012, Buchanan received more than $530,000 from the automotive industry, while Stabenow received $430,000.

Obama’s Inauguration Flush With Mega-Contributions
In 2008 candidate Obama touted his efforts to “change business as usual in Washington” by establishing strict rules for the inauguration ceremony; corporate donations were prohibited; individual contributions were limited to $50,000 and the amount donated by each contributor was identified immediately. This year the practice has dramatically changed. Obama’s inaugural committee has accepted contributions from major corporations including AT&T, Microsoft and Financial Innovations, offering them perks in return. Caps on donations have been lifted as well. Furthermore, donors will only be made public 90 days after the event. As the Obama administration gears up for a second term, advisers say that their team is focused on the federal budget deficit, gun violence and immigration — not campaign finance reform, despite Obama’s enthusiasm for it on the website reddit last year. The administration has yet to replace five members of the Federal Election Commission who are serving expired terms, and has retracted an executive order requiring companies with federal contracts to disclose their political spending. According to Larry Noble, former general counsel to the FEC, the administration fails to realize that its legislative agenda will not succeed without changing the “campaign finance system that puts enormous power behind special interests.”

SEC Considers New Rule to Disclose Corporate Political Expenditures
The U.S Securities and Exchange Commission plans to consider a new rule this year requiring publicly traded corporations to release information about the use of corporate resources for political activities. Ian Vandewalker, counsel at the Brennan Center, explains in the Huffington Post that “corporations are not required to tell their shareholders anything about the political spending that corporate management decides to engage in. This leaves the company's investors in the dark about whether political expenditures benefit or hurt the bottom line.” Furthermore, since corporations can donate unlimited sums to tax exempt 501(c) organizations, which in turn spend millions on elections without disclosing their donors, voters remain ignorant about the real source of the political advertising they get bombarded with. Nearly 77 percent of Americans support a requirement that companies publicly reveal their contributions to political organizations. The SEC has admirably completed the first hurdle to bring corporate political expenditures out of the darkness. With a complete rule, the SEC can protect investors by providing them with financial information necessary for investing responsibly.

American Tradition Partnership Loses Another Key Court Decision
The American Tradition Partnership, an anti-environmentalist non-profit that has been engaged in an ongoing dispute with the state of Montana over its failure to file regular reports regarding its donors and expenditures, lost another key court decision last Friday. The State District Court Judge Jeffery Sherlock of Helena adopted Montana’s proposed finding that ATP acted as a political committee in 2008, and therefore must report its donors and expenditures. Sherlock ruled that members and officers of ATP used its corporate, nonprofit status “as a subterfuge to avoid compliance with state disclosure and disclaimer laws during the 2008 Montana election cycle.” Montana’s Commissioner of Political Practices, Jim Murry, stated that he will seek financial penalties against ATP for the legal violations.

A Step Forward in Virginia on Restoring Voting Rights

Vishal Agraharkar — 2013-01-11T16:10:11+00:00

Crossposted at Huffington Post.

On Wednesday, Virginia Gov. Bob McDonnell used his annual State of the Commonwealth address to urge the legislature to reform Virginia's voting rights restoration process. Virginia is one of only four states — along with Florida, Iowa, and Kentucky — that continue to require those with past criminal convictions to personally apply to the governor to have their rights restored. McDonnell proudly claims that his administration has restored the voting rights of more people than any previous Virginia administration. He should be applauded for exhorting the legislature to automate the process so that individuals with criminal convictions in their past can actually reintegrate themselves into our democracy.

McDonnell's statements are consonant with views held by leading law enforcement groups, faith-based groups, and scholars: Automatic voting rights restoration is a smart-on-crime reform that it is consistent with American values and ideals. States that give persons with criminal convictions a second chance to become full-fledged stakeholders in their communities by automatically restoring their voting rights upon release see recidivism rates that are 10 percent lower than permanent-disenfranchisement states.

The governor earned a standing ovation for recognizing that a byzantine executive process for restoring voting rights is inconsistent with great values of our country like redemption and second chances, and that Virginia's current policy is grossly out of step with the rest of the country. McDonnell invoked reform that would restore rights to persons who have served their sentences, paid their fines and restitution, and committed nonviolent offenses.

This would be a great step forward for a state with one of the nation's most regressive laws, but the proposal does not go far enough because it would condition voting rights restoration on having the money to pay financial penalties. Instead, every person who is out of prison should be given a personal stake in their community and the accompanying disincentive from reoffending.

In using his annual address to call for automatic rights restoration, McDonnell joins a group of other Republican politicians who have recognized the fundamental unfairness of making permanent second-class citizens out of fellow Americans who have made mistakes in their past. The late Jack Kemp advocated against harsh felony disenfranchisement policies in several states. Former Florida Gov. Charlie Crist made voting rights restoration a pet issue and significantly eased the harshest felony disenfranchisement policies in the country. Former Sen. Rick Santorum even made clear his support for voting rights restoration in a nationally-televised 2012 Republican primary debate.

Unfortunately, a minority of Republican administrations have blocked and even reversed civil rights restoration efforts. When he took office in 2011, Florida Gov. Rick Scott took a big step backward when his clemency board issued probably the harshest voting rights restoration policy in the country. Scott eliminated former Gov. Crist's reforms and required even nonviolent offenders to wait five years after completing all of the terms of their sentences before even being allowed to apply to have their rights restored.

Likewise, Iowa Gov. Terry Branstad reversed a policy implemented in 2005 by then Gov. Tom Vilsack that fast-tracked the restoration of voting rights for persons with criminal convictions who had served all terms of their sentence. Iowa's policy required payment of all outstanding fees and fines before an application could even be filed. The impact of the policy's reversal was profound. More than 100,000 persons had their voting rights restored between 2005 and 2011 under the governorships of Tom Vilsack and Chet Culver. By comparison, since 2011, although more than 13,000 persons have been released from the supervision of the state criminal justice system, fewer than 20 have successfully applied to have their rights restored.

Last week, Branstad slightly eased Iowa's policy by, among other things, allowing persons with past criminal convictions to apply to have their voting rights restored without undergoing a credit check, and after demonstrating they are current on all payment of fines and restitution. But Iowa's new policy falls woefully short of the automatic voting rights restoration that was espoused by previous administrations, and that was proposed yesterday by McDonnell.

The Virginia legislature should take its cue from the governor and pass legislation restoring voting rights to the more than 400,000 Virginians with criminal convictions living and working in their communities.

The SEC Takes a Step Toward Transparency in Corporate Political Spending

Ian Vandewalker — 2013-01-10T14:55:14+00:00

Crossposted at The Huffington Post

The Securities and Exchange Commission (SEC) has announced that it will consider making a rule to require public companies to disclose information about the money they spend on politics. This is an important first step toward bringing transparency and accountability to the shadowy world of corporate political expenditures. As the law stands today, corporations are not required to tell their shareholders anything about the political spending that corporate management decides to engage in. This leaves the company's investors in the dark about whether political expenditures benefit or hurt the bottom line, as well as whether their money is providing support to candidates or causes that they oppose. It also leaves voters ignorant about the real source of the political advertising they are bombarded with in every election.

Corporations spend big money on politics. Chevron gave $2.5 million to a super PAC with ties to House Speaker John Boehner. Clayton Williams Energy, a public company based in Texas, gave $1 million to the conservative super PAC American Crossroads, among others. These donations are publicly known because super PACs are required to report their donors, as are candidates. But shareholders who want to track this kind of political spending have to pore over federal elections filings or hope that a journalist will do that work for them.

In addition, other political spending is not reported. Corporations may donate to politically active tax-exempt organizations or trade associations that spend prolifically on elections but do not have to report their donors. Last year, Aetna accidentally revealed $7 million in political spending that neither Aetna nor the organizations receiving the donations were required to report. In effect, no one knows how much of the hundreds of millions of dollars of "dark money" spent in the 2012 election came from corporate treasuries.

There is one investor who is keenly aware of how hard it is to get information about companies' political spending: New York State comptroller Thomas Di Napoli, the sole trustee of the New York State pension fund. As a major shareholder in Qualcomm, the pension fund requested information about the company's political spending through letters and shareholder resolutions, but nothing has worked. Di Napoli has now sued Qualcomm, seeking to examine the corporation's books for contributions to politically active groups that do not report their donors. Di Napoli is obligated to protect the value of the pension fund's investments, and he understands that investors must be informed about political contributions because of the potential risks they pose.

Americans are outraged by corporations' attempts to influence democracy from behind a veil. A recent poll found that almost 9 out of 10 Americans think there is too much corporate money in politics. In addition, 81 percent believe that companies should only spend money on political campaigns if they disclose their spending immediately, and 77 percent support a requirement that companies publicly disclose their contributions to organizations that channel money into politics. The SEC has seen this thunderous support firsthand: A 2011 petition calling for the agency to require disclosure of corporate political spending has received a record-high number of comments in support -- 323,000 so far. These comments have come from ordinary Americans as well as from the Maryland State Retirement Agency, dozens of senators and members of Congress, five state treasurers, and a large group of firms managing more than $690 billion in assets.

The SEC has admirably taken the first step toward addressing the disturbing secrecy surrounding corporate political spending by beginning the rulemaking process for a disclosure rule. The Commission's new chair, Elisse Walter, has the opportunity to promote the SEC's core goal of giving investors the facts they need to make informed decisions by completing rulemaking this year. The agency must act to protect corporate democracy by bringing corporate political expenditures out of the shadows.

Secret Spending in 2012 Election Reinforces Need for DISCLOSE Act

David Earley — 2013-01-07T21:11:16+00:00

Crossposted on The Hill's Congress Blog.

On the first day of the 113th Congress, Rep. Chris Van Hollen reintroduced the DISCLOSE Act, a bill aimed at shining a bright light on who is spending in our federal elections. This marks the third time the DISCLOSE Act has been introduced in Congress. The legislation would bring much-needed transparency to our federal elections, allowing voters to be better informed, and helping guard against improper relationships between political spenders and elected officials.

Super PACs and nonprofit organizations spent millions in the 2012 elections, yet many of these organizations’ donors went undisclosed to the public. According to the Sunlight Foundation, a leading nonpartisan organization devoted to greater government transparency, groups that do not disclose their donors spent at least $213 million in the 2012 general election. As the Brennan Center explained in testimony to Congress last year, organizations with anodyne names like the “Coalition to Protect Seniors” and “Citizens for Strength and Security” spent substantial sums trying to influence voters, yet did not disclose their donors. Nevertheless, as Professor Lawrence Lessig of Harvard Law School has clarified, “It’s dark money to us, but it’s not dark money to the candidates.” The candidates know precisely who is helping them and how they are helping them. After the election, successful spenders will seek to reap returns on their electoral investments. The DISCLOSE Act would bring these relationships out of the shadows and into the public eye.

The DISCLOSE Act would require that political spenders who spend at least $10,000 disclose that spending within 24 hours. Many more underlying donors, whose donations currently are not disclosed, would be revealed to the public. New stand-by-your-ad provisions would require that a high-ranking member of the organization appear in advertisements, along with the names of its biggest donors. These are just a few of the benefits of the bill.

The DISCLOSE Act rests on firm constitutional ground that complies with both the First Amendment and Supreme Court precedent. Though the Court unleashed unlimited independent spending by outside groups in its Citizens United decision, the case’s less-discussed second half wholeheartedly endorsed strong disclosure laws. Justice Kennedy explained that “disclosure requirements may burden the ability to speak, but they impose no ceiling on campaign-related and do not prevent anyone from speaking.” The Court said that disclosure of who is spending allows voters to be better informed about the messages they receive in addition to holding elected officials accountable for their actions. In his opinion, Kennedy went on to say, “A campaign finance system that pairs corporate independent expenditures with effective disclosure has not existed before today.” Indeed, it still does not exist, which is why this bill is so essential.

Bipartisan support already exists in the Senate for increased transparency in our elections. In a Washington Post article, Democratic Senator Ron Wyden and Republican Senator Lisa Murkowski endorsed enhanced disclosure while lamenting Congress’s inaction in this area and the “influx of unregulated political cash stemming from the Supreme Court’s 2010 Citizens United decision.” Pointing to Oregon’s campaign finance law, the two senators said “near-immediate disclosure of contributions is not only possible but preferable.” The Senate should follow the lead of Sens. Wyden and Murkowski and support greater transparency in political spending.

Rep. Van Hollen’s commitment to passing this vital legislation is commendable and necessary. Congress should act to pass this bill immediately, before another election season of out of control secret spending occurs. In a democratic society, voters deserve to know not only who is trying to influence their votes, but also who is trying to influence their representatives.

“Old Bulls” for New Rules

Jonathan Backer — 2013-01-07T14:36:42+00:00

Crossposted at the Hill's Congress blog.

With Senators Tom Udall and Jeff Merkley, who were first elected in 2008, leading this year’s charge for Senate Rules changes, both supporters and opponents of filibuster reform depict the effort as a young man’s game. Senator Mitch McConnell dismissed the initiative as the machinations of a “cohort of short-sighted Senate sophomores.” Journalist George Packer, a reform proponent, describes Senator Carl Levin and other filibuster defenders as “Catos [who] see themselves as steady hands trying to keep the hallowed old institution from being changed out of recognition by young barbarians like Merkley, Warren, and Tom Udall.”

Although Udall and Merkley are the public faces of filibuster reform this year, and while many of the staunchest defenders of the status quo have served long tenures, long-serving members are also on the frontlines advocating reform.

Senator Tom Harkin, first elected in 1984, has crusaded against the filibuster for years. Unlike his more junior allies, who wish to preserve the filibuster while limiting its abuse, Harkin’s preferred course is to ensure that all legislation eventually receives an up-or-down vote. In 1995, when Republicans controlled 52 seats, Harkin, a Democrat, first offered a resolution that would gradually reduce the number of votes required for cloture — the mechanism to end a filibuster — to 50 votes. Since then, Harkin has re-introduced the proposal several times and also supports efforts to modify the filibuster to reduce obstruction. Senator Barbara Mikulski, the longest-serving woman in Senate history (first elected in 1986), has repeatedly co-sponsored Harkin’s proposal.

Senator Frank Lautenberg, who has served since 1982 with a brief two year hiatus, is also a major proponent of filibuster reform. Like Merkley, Lautenberg believes that filibustering senators should hold the floor and actually debate so that the public can see who is preventing a vote. In each of the past three Congresses, Lautenberg has offered his own version of a “talking filibuster” to compel debate, which he calls the “Mr. Smith Bill,” honoring the Frank Capra movie in which Jimmy Stewart engages in a heroic filibuster.

And respected former Senators Jack Danforth, a Republican, and Dan Boren, a Democrat, both recognize that the modern filibuster is not in line with the Senate’s tradition as a deliberative body. “Members of the Senate are not courageously holding the floor, standing proudly as the last bulwark against a tyrannical majority,” they wrote in a recent op-ed. “Instead, senators merely send an email indicating that they are engaging in a filibuster — a process that is as silent as the click of a mouse.” Both support the “talking filibuster” so that the “Senate [can] be the Senate again.”

There are plenty of good reasons for considered debate over how to ensure deliberative but functional democracy. But filibuster reform enjoys the support of both Senate veterans, who have witnessed the Senate’s precipitous drop in productivity, as well as frustrated new members. Skeptical senators cannot simply dismiss reform as the preoccupation of inexperienced members. Rather, they should join with their colleagues in a meaningful conversation about how to restore the Senate as a chamber where substantive decision-making can once again occur.

Spotlight on Ohio: Steps to Cure Disenfranchisement by Typo

Vishal Agraharkar — 2012-12-20T17:42:11+00:00

In the run up to the 2012 election (as in every presidential election since at least 2004), Ohio was again at the center of controversy. On early voting, provisional ballots, and more, the Ohio Secretary of State’s office took positions that we strenuously opposed because they would make it more difficult for Ohioans to cast ballots that would be counted.

But this post isn’t about those controversies. It’s about an important step taken by the Ohio Secretary of State’s Office to ensure the ballots of legitimate voters were counted. It’s worth highlighting because it didn’t receive any coverage, yet it’s an important example for other states to follow.

The Northeast Ohio Voter Advocates found that many eligible, registered voters were not sent the absentee ballots they had requested because Ohio’s statewide voter-lookup system requires an exact match to verify the identities of voters. As we have previously reported, exact-match systems can lead to disenfranchisement because of spelling differences in a voter’s record in different government databases (e.g. William vs. Bill or Street vs. St.), or because of minor typographical errors, often made by election officials who have to manually enter data from thousands of paper-based registration forms. For instance, here in New York, I arrived at my polling place on Election Day to find my own last name misspelled in the poll books as “Agraharkal,” most likely because an election worker misread my handwritten voter-registration form.

The exact-match system led Ohio counties to reject applications for absentee ballots by voters wrongly identified as unregistered because of a failed match. Unfortunately, counties would be using the same lookup system after the election to verify the identities of provisional voters before their ballots could be counted. As a result, eligible provisional voters with minor errors in their registration record would have had their provisional ballots rejected.

Soon after Election Day, we brought this problem to the attention of the Secretary of State’s office. It responded by promptly emailing Ohio counties with recommendations for more inclusive searches, thus providing counties with the tools they needed to prevent inadequate matching procedures from disenfranchising provisional voters. This was no small change, and Ohio deserves much credit for acting to mitigate the problem. We are optimistic that Ohio counties will be directed to use the better search procedures in future elections and we hope other states will follow suit and manually review their own systems for verifying voters’ identities.

Ohio, and the nation, should address the root causes of such errors by modernizing its voter-registration system, so that election officials no longer have to manually enter data from thousands of (often-illegible) paper-based registration forms. Last year, Secretary of State Husted took steps towards modernization by implementing an online change-of-address tool and going on record in support of online voter registration. The Ohio legislature would do well to work with the Secretary to implement online registration as well as other modernizing reforms to get more Ohioans to become registered when they interact with government agencies and stay registered when they move. These reforms will boost turnout and ensure that disenfranchisement due to minor, technical errors will be a thing of the past.

A New Year�s Resolution for the Senate: Fix the Filibuster

Diana Kasdan — 2012-12-19T18:38:29+00:00

Crossposted at ACSBlog

Every senator needs to put “fix the filibuster” at the top of his or her New Year’s Resolution List. Specifically, they need to resolve to pursue serious rules reforms that can curb the exponential rate of obstruction in recent decades. And it must happen on January 3rd. Here are three reasons why:

1. Congress is Broken and Senate Obstruction is Part of the Problem

The 112th Congress has had the lowest output of any since at least World War II. This stems from reasons well beyond divided control of chambers, which defines the current and incoming Congress. Control of the House and Senate was also divided from 1981 to 1987, yet Congress enacted an average of nearly 600 public laws during each two-year period, compared to barely 200 in the current session.

So what is causing this decline in productivity? One prime culprit is filibuster abuse. As a recent Brennan Center report confirms, longstanding procedural rules have become tools of obstruction allowing legislative minorities to impose a veto on nearly every order of Senate business. Even when addressing matters purely within its own control, the Senate is at a virtual standstill. The Senate has passed a record-low 2.8 percent of its own bills. At its peak efficiency in the 1950s, the Senate passed nearly 27 percent of its bills. And, on average, it has taken 188 days for the Senate to confirm a judicial nominee during the current Congress, creating 32 “judicial emergencies.” Only at the end of the congressional term in 1992 and 2010 have there been more judicial emergencies.

Moreover, the informal “handshake” deal struck at the start of the 112th Congress to reduce filibuster abuse and foster bipartisan cooperation flopped. The pace of obstruction — on both sides of the aisle — only worsened. This race to the bottom can’t continue. It is time for the Senate to put its house in order.

2. Americans Want the Senate to Fix the Filibuster

This year public approval of Congress hit a record low10 percent. Not once, but twice. In fact, since 2011, approval has never inched past 20 percent. It’s no surprise then that Americans expect more from their representatives and think the Senate should take a lead in turning things around.

Recent pollingfound voters overwhelming support changes to the Senate rules that cause gridlock. And they don’t want lip service, they expect meaningful reforms, like requiring filibustering senators to stay on the floor and talk about why they are blocking legislation.

The public view mirrors commonsense proposals championed by several senators leading the reform movement and supported by a diverse range of national groups. Not only would a “talking filibuster” create greater public accountability, it would mean a single senator could not — as is the case now simply prevent a vote with no more than a phone call to leadership. It is fair and reasonable to require members opposing a vote to carry the burden of maintaining the filibuster. Any lesser reforms would fall short of real change and leave the rules ripe for abuse. To repair the public’s dissatisfaction with Congress and clear the way for the Senate to get back to work, it must move forward with a substantial package of reforms.

3. The Momentum and Window of Opportunity for Change is Now

A resolution to fix the filibuster deserves bipartisan support. But if Democrats buy into the idea that pursuing rules reform next Congress requires support from a minority party committed to obstruction, the opportunity for change will be lost.

On Jan. 3, the newly convened Senate can change its operating rules with the support of a simple majority. Contrary to the suggestion of some, using this “constitutional option” will not cause a Senate meltdown. A recent letter sent by leading academics and scholars to the Senate puts this issue to rest. The letter—which includes top conservative scholars Professor Charles Fried, President Reagan’s former solicitor general, and Michael McConnell, a former Bush-appointed federal judge—confirms that rules change by a simple majority of a newly convened Senate is constitutional and appropriate. It also shows that, historically, invoking the constitutional authority to reform the rules has led to bipartisan reform, not nuclear fallout.

That said, rules reform does not happen frequently, nor should it. However, this January it can, and must, happen. It is painfully evident that the existing filibuster rule does not work for the modern Senate. There is overwhelming public support for change. senators are championing substantial reforms. With this constellation in place, the upcoming start of a new Congress creates an historic opportunity. In the New Year, before bad habits can take hold again, fixing the filibuster should be the first step in revitalizing Congress so it can tackle the numerous challenges facing our nation in 2013 and beyond.

Americans’ Privacy Under Debate in FISA Reauthorization

Rachel Levinson-Waldman — 2012-12-18T16:45:14+00:00

As the song says, “He knows when you’ve been sleeping, he knows when you’re awake….” Santa’s got nothing on the National Security Agency. Under a law set to expire at the end of the year, the NSA can scoop up Americans’ communications, whether they’ve been naughty or nice, without a warrant and with little oversight. Several senators have offered amendments that would impose modest limits on this sweeping power; these amendments deserve consideration and passage.

The 2008 law, called the FISA Amendments Act (FAA), legalized the crux of the Bush administration’s warrantless wiretapping program, authorizing expansive surveillance powers and removing many of the limits that FISA had imposed on the government. It was the gift to the executive branch that keeps on giving.

Indeed, the New York Times reported shortly after the statute passed that the NSA had engaged in “significant and systemic” overcollection of Americans’ communications — even trying to wiretap a member of Congress without a warrant. More recently, the NSA admitted that on at least one occasion, its collection of Americans’ communications violated the Constitution.

Under the statute, the government can conduct a program to monitor the emails and phone calls of Americans who are within the United States, as long as the communications involve one party who is “reasonably believed” to be overseas, and the government certifies both that a significant purpose is to gather foreign intelligence and that its purpose is not domestic surveillance. Before 2008, monitoring such communication required an order from the specialized Foreign Intelligence Surveillance Court. Under the FAA, however, the Court is limited to reviewing the program’s general procedures, and must accept the government’s certifications about the program’s purpose.

Moreover, “foreign intelligence” is broadly defined — notably, the communications need not relate to terrorism or even a criminal act. Thus, any American who communicates with a foreigner overseas risks having those communications swept up, whether intentionally or unintentionally, with no judicial review.

When Congress passed the FAA in 2008, it declared that the bill would automatically expire at the end of this year unless reauthorized. The House already approved the bill, and the Act will undoubtedly be renewed. But the largest domestic spying program in U.S. history merits some attention from the Senate before the chamber goes home for the holidays. Proposed amendments to the FAA from Senators Leahy, Merkley, Tester, Mark Udall, and Wyden should be debated and approved.

One critical amendment to the bill would require the NSA to provide some basic information about the breadth of its domestic information collection. The NSA has said that it is impossible to calculate the number of Americans whose communications have been intercepted under FISA, and then doubled down with the Orwellian claim that estimating that number would itself violate Americans’ privacy.

Two additional amendments would prohibit the government from using its surveillance authority as a pretext for examining Americans’ communications without the required warrant or court order. An enhanced ban on “reverse targeting” would prohibit the NSA from intercepting a foreigner’s communications where a significant purpose is to monitor the American side of the exchange, while Sen. Wyden would prohibit “back-door searches,” making it illegal for the NSA to search its storehouse for the emails or phone calls of a particular U.S. person.

Finally, almost every single decision of the Foreign Intelligence Surveillance Court is secret, including opinions that contain significant (and binding) interpretations of the law. Indeed, Senators Wyden and Udall have warned that the government, via a series of classified FISA Court rulings, is secretly interpreting an intelligence collection provision of the controversial Patriot Act in a way that would leave Americans “stunned” if they knew the details. A proposed amendment to the FAA would therefore compel the government to provide, where possible, a declassified version or an unclassified summary of the Court’s opinions, so that the public and the many senators and representatives without the necessary security clearances can understand how the law is being interpreted.

Combined with Sen. Leahy’s proposal to require the government to publicly release an unclassified version of its reports to Congress about the operation of the surveillance program — the only amendment actually guaranteed to get a vote — these measures would allow some measure of public oversight over a program that implicates Americans’ privacy, security, and fundamental values.

These amendments will not impair the government’s power to collect critical information about foreigners abroad — the supposed object of the statute. They simply require the government to provide some modest reporting to the American people about how it is using its surveillance powers, to respect the legal requirement of a warrant when targeting Americans, and to facilitate timely and meaningful oversight by Congress. If the Act is reauthorized without discussion and without these limitations, it is Americans who will be scrooged.

Time to Incentivize Federal Prison Funding

Inimai M. Chettiar — 2012-12-11T19:37:12+00:00

Crossposted at The Hill's Congress Blog.

Any business run like the federal criminal justice system would fail. Businesses understand that survival depends on generating a return on investment. However, a new report released today by the Urban Institute Justice Policy Center reveals that the federal criminal justice system has a massive resource allocation problem.

The Bureau of Prison’s (BOP) budget is swelling. President Obama’s FY 2013 budget requests $6.9 billion for BOP — over a quarter of the total Department of Justice budget. This massive spending will house over 217,000 federal prisoners — a number expected to continue to rise.

A primary driver of this bloated budget lies with the use of prison as a drug treatment program. The federal government spends between $21,000 and $33,000 on each prisoner per year, and about half of federal prisoners are behind bars for drug offenses. Clearly, actual treatment instead of prison for anyone with drug addiction problems is far more effective, from a public safety, cost, and human perspective. It’s more effective because the cost of incarceration per prisoner does not include the loss of productivity to the economy, the damage to the quality and quantity of the labor force, the loss of tax revenue, the missed opportunity for government funds to be spent elsewhere, and the large societal effects of deleting many people from their community.

The report also confirms what most criminal justice advocates already know: Sending people back to prison for technical violations of supervision conditions is another driver of the growing population. At least 15 percent of annual federal prison admissions are for violations of release conditions — anything as minor as forgetting to update a mailing address to committing a new crime. When probation supervision costs an annual average of only $3,433, the most effective and efficient remedy for minor violations is not re-incarceration, but other types of sanctions like more intense supervision or perhaps education and training programs to help ensure a prisoner’s successful reentry.

One fix to the problem of massive spending on ineffective policies is to enact performance incentive funding for all criminal justice spending — at the federal level and in states. Tying funding to a set of meaningful metrics will help ensure that government funds are used on programs and policies that get results. For example, if funding for probation programs was conditioned on how many prisoners are successfully reintegrated into society and do not return to prison — fulfilling a public safety, economic, and societal good — probation officers would not be so quick to send those who violate supervision conditions back to prison. Several states have implemented performance incentive funding for some part of their criminal justice system, but none of have done so on a system-wide basis.

Governments should never spend money on programs that do not achieve their intended goal. Especially at a time when every penny counts, policy makers should think about the wisdom of instituting efficient spending of criminal justice funds across the board. Such policies that improve the rationality, efficiency, and effectiveness of the criminal justice system ought to be the norm. This would be a win for public safety, affected populations, and the country.

Money in Politics This Week

Syed Zaidi — 2012-12-07T21:16:34+00:00

Crossposted at ReformNY

For more stories on an ongoing basis, follow the Twitter hashtag#moNeYpolitics and #fairelex.

CAMPAIGN FINANCE REFORM AND ETHICS NEWS

NEW YORK

Cuomo Outlines List of 10 Priorities: Campaign Finance Reform is No. 2
Governor Cuomo refused to endorse more than two candidates in New York State Assembly and Senate races this year. Now, with the Senate leadership undetermined, he is still unwilling to put his weight behind individual legislators, rather, the Governor is asserting that he will support Senators based on their positions on a list of ten issues he deems to be the most important over the coming year. In a victory for reformers, campaign finance reform is high on the list, along with other progressive initiatives such as raising the minimum wage and changing New York City’s “stop and frisk” policy. It remains to be seen whether the newly emerged Senate coalition composed of Republicans and a breakaway group of 5 Independent Democrats will be responsive to these requests from the Governor, or if they will simply continue the tradition of dysfunction that the New York State Legislature has become well-known for. It is up to the citizens of New York to keep the pressure on their elected officials in order to ensure that public matching for small in-district donations remains a crucial aspect of any campaign finance reform proposal.

New York Times Editorial Asks Governor Cuomo to Support Fair Elections
In an excellent editorial, the New York Times urged Governor Cuomo to make New York’s system of electing legislators the fairest and most transparent in the country. The editorial emphasized the need for a public financing mechanism modeled on New York City’s successful small donor matching program, where the first $175 of any donation is matched at a 6-to-1 ratio. According to the New York City Campaign Finance Board, a majority of contributors in City Council elections in recent cycles were giving for the first time, and of those first-time contributors, 83 percent gave $175 or less. Lower limits on individual and corporate contributions are also necessary, along with closing loopholes like unrestricted donations to political party “housekeeping” committees. And given that campaign treasuries can be used for almost anything, including veterinarian bills, pool parties and birthdays, clear rules regarding campaign funds are paramount. As the Times put it, “By setting a national standard for public financing, New York State could go from laggard to leader.”

NY Business, Civic and Philanthropic Leaders Insist Governor Cuomo Include Campaign Finance Reform in his State of the State
In addition to the editorial by the New York Times, other New Yorkers are also emphasizing the importance of Fair Elections in the upcoming legislative session. The New York Leadership for Accountable Government (NY LEAD), a bipartisan group of business, civic and philanthropic leaders, sent a letter to Governor Cuomo asking him to make citizen-funded elections a priority in his State of the State Address. "A Fair Elections campaign finance system would encourage voter participation, incentivize diversity among candidates and help curb the corrupting power of big money,” the letter stated.

Public Financing of Elections in NYS Would Cost Only $2 per Person
A new study from the Campaign Finance Institute by Professor Michael Malbin concludes that the cost of running a public financing system in New York State would be roughly $40 million, which works out to $2 per New Yorker—not a bad trade considering the millions more the state government wastes in handouts to special interests. Additional taxes are unnecessary; the current revenue stream can simply be redirected towards ensuring our elections are clean and fair. In 2012, 76 percent of the money raised by New York State legislative candidates was from large donors that contributed $1,000 or more. By contrast, only 8 percent came from donors who gave $250 or less. The research evaluated the consequences of implementing a public financing bill (A9885) introduced by Assembly Speaker Sheldon Silver last session. Four alternative scenarios, involving changes in the number of donors and election contests yielded cost estimates from $25 million to $40 million.

NATIONAL

Why the Faith Community Supports Campaign Finance Reform
Ministers, rabbis, nuns, priests, imams and theologians across the U.S. are joining forces to call out the dangers of unchecked money in our elections and advocating for large-scale reform. Faith leaders were crucial for the passage of state-level ballot measures calling for campaign finance reform in Colorado and Montana, and are now active in North Carolina and Washington to support the movement to reverse Citizens United. Katherine Henderson, president of the Auburn Theological Seminary in New York, stated in the Washington Post that Super PACs spent more than $500 million on campaign propaganda, from voter suppression tactics and fear mongering to outright fabrications, in an effort to buy special access to every level of our government. “When people make large gifts of money to influence the behavior of a leader, the Bible calls that a bribe. The Bible reserves its strongest words for anonymous bribes, saying…that ‘a wicked man accepts a bribe in secret to pervert the ways of justice’ [Proverbs 17:23].” For the sake of justice and for the betterment of their communities, the faith leaders must take action on this vital issue.

U.S. Earns a C on the Corruption Perception Index
The United States scores worse than many countries in the developed world on this year’s Corruption Perception Index, according to Transparency International. Transparency International employs surveys of well-known civic and business groups to quantify the degree of perceived corruption in a state. The U.S. earned a score of 74 out of 100 and a ranking of 19 out of the 174 countries tested. America trails behind other developed nations such as Singapore, Australia, Canada, Germany and Japan. “Americans believe there are continued transparency and corruption issues in local, state and national government institutions and processes. Numerous articles and editorials during the recent U.S. elections attest to American concern regarding opaque campaign financing and a political culture driven by special interest groups.”A series of Supreme Court decisions, coupled with inaction by the Federal Election Commission, set off a $1.3 billion spending spree by outside groups this election cycle, with a large portion from hidden donors.

Dark Money in Congressional Races: VA Residents Write-in 6,000 Votes for a Cat
The Sunlight Foundation has released a list of 25 House and 10 Senate races where dark money played a vital role in the election. Dark money is funneled from non-profit entities organized under a section of the tax code that protects them from revealing their donors. More than $256 million in donations came from these groups during the 2012 general election cycle. The three candidates who were helped the most by dark money were Representatives-elect Keith Rothfus (R-PA), Bill Johnson (R-OH) and Jeff Denham (R-CA). In the 25 House races hit with the most dark money, 86 percent of such spending was designed to help Republican candidates, and 14 percent to assist Democratic ones. Nine incoming Senators got at least $1 million in dark money contributions including Tim Kaine (D-VA), Dan Heller (R-NV) and Jon Tester (D-MT). Senator-elect Tim Kaine benefited from nearly $3 million in dark money attack ads targeting his Republican rival, former Senator George Allen. As a spoof of the money inundating the race, residents placed more than 6,000 write-in votes for Hank the Cat, a feline competing against the two traditional party candidates.

Super PACs and 501’s Turn to Lobbying
The Super PACs and so called non-profits that polluted the election this year with millions of dollars are regrouping to lobby Congress and the White House during the fiscal cliff negotiations. Americans for Prosperity, the Club for Growth, Americans for Tax Reform and American Crossroads are advancing a new effort to maintain the Bush era tax cuts for the top 2 percent of income earners and cut Social Security, Medicare and Medicaid. The groups hope to persuade lawmakers by advertising in Congressional districts and reminding elected officials about their limitless campaign largesse, with implicit threats to pummel unconvinced Congressmen in primary or general elections. Unions including the AFL-CIO, American Federation of State, County and Municipal Employees, the National Education Association and the Service Employees International Union are also making their presence known. Hundreds of union members will be in Capitol Hill over the next week to argue against the policies supported by conservative organizations. Even the lobbyists don’t see this transformation in a positive light. Howard Marlowe, the outgoing president of the American League of Lobbyists, stated "We already have a perception among the public that our government is for sale. This is not a good development to have more political money thrown into the policymaking process."

Revolving Door Still Wide Open
The revolving door between public service and private industry remains wide open despite Congressional lobbying reform in 2007 and White House executive orders from the Obama administration. Representative Heath Shuler (D-NC) will be leaving Congress early next year to join Duke Energy as the senior vice president of federal affairs. Representative Geoff Davis (R-KY), who resigned on July 31^st of this year, will be starting Republic Consulting, a public affairs firm with lobbyist Hunter Bates. Meanwhile, in the Obama administration, Liz Fowler, who served as the deputy director of the Office of Consumer Information and Oversight to the US Department of Health and Human Services—primarily known for her expertise on health care policy while serving as an aide to Senate Finance Committee Chairman Max Baucus (D-MN)—will be joining Johnson & Johnson as the head of global health policy. Fowler’s departure has raised red flags among government watchdogs who point to benefits Johnson & Johnson could stand to gain as the Affordable Care Act is implemented. "As a broad matter, we should be concerned about the access that certain individuals have by working in the administration and in Congress because these policy questions are going to continue to come up, and voters will feel like the game is rigged against them," said David Donnelly, executive director of the Public Campaign Action Fund.

A Short History of the Constitutional Option

Jonathan Backer — 2012-12-06T21:11:14+00:00

Crossposted at Fix the Senate Now.

On Monday, Senator Mitch McConnell warned that changing the Senate rules by a majority vote, a procedure known as the “constitutional option,” would cause “irreparable harm” by “breaking the rules to change the rules.”

This constant refrain is simply untrue. The Senate’s authority to change its rules by a majority vote stems directly from the Constitution, which authorizes the chamber to “determine the Rules for its Proceedings.” And unlike other legislative actions, such as expelling members or ratifying treaties, the Constitution does not require a supermajority to approve rules changes.

More to the point, the determination of majorities to hold a vote on rules change lies at the root of past successful reform efforts since the creation of the modern filibuster in 1917. Senators who support rules reform this year must likewise embrace this authority, or risk losing the opportunity for change.

In 1959, after filibustering minorities defeated a series of civil rights legislation, senators sought to loosen the cloture rule by requiring two-thirds of senators present and voting — rather than the entire membership — to end debate. At the time, Senate procedure did not explicitly permit cloture to end debate over rules changes, so opponents argued that they could filibuster changes endlessly. But once Vice President Richard Nixon issued an advisory opinion saying that rules changes could be enacted by a simple majority, the Senate adopted the modified cloture rule by a 72-22 margin.

In 1975, when reformers sought to further reduce the cloture threshold, opponents once again argued that a simple majority could not change the rules. But Vice President Nelson Rockefeller gave favorable rulings that allowed a majority to proceed with the constitutional option. The majority’s decision to do so paved the way for reform. After invoking cloture by a majority vote, and tabling the minority’s effort to challenge that vote by a “point of order,” Senator Robert Byrd (D-WV) urged opponents to come into the fold. He warned that further procedural objections would simply reconfirm the majority’s decision to “eventuate ... majority cloture.” In response, the minority came to the table for a new vote and the Senate endorsed the current three-fifths cloture threshold by a two-thirds majority.

Thus, while past rules reforms ultimately garnered supermajority support, Senate precedent confirms the constitutional and procedural legitimacy of rules change by a majority vote. It also reinforces the fact that reform will only come when the Senate acts on that authority.

Student Location Tracking Has Troubling Implications

Rachel Levinson-Waldman — 2012-12-05T15:07:43+00:00

In Harry Potter, the young wizard and his friends are bequeathed a Marauder’s Map. The map allows them to precisely track the location of friends and enemies – as long as the users solemnly swear they are up to no good.

School districts in Texas and California have implemented a real-world (or Muggle-world) version of the Marauder’s Map: some schools are tracking students’ precise locations on school grounds using name badges embedded with Radio Frequency Identification (or RFID) chips.

The program earned national attention recently when a student at a science and engineering magnet academy in San Antonio refused to wear the badge (either with or without the tracking chip); after she was removed from the school as punishment, she and her parents sued. San Antonio is just one of many school districts that use the program to claim precious state dollars based on attendance; using the chips to track students on school grounds, they can report students as present even if they are not in the classroom.

There are a number of troubling implications of this tracking plan. The first is the risk of training young people for a police state. Secondary school administrators and teachers have a critical responsibility for keeping their young charges safe, and the First Amendment rights of elementary and high school students can be curtailed in ways that would not pass muster in college and beyond. But a school is not a prison. Its obligations include educating the next generation of competent participants in our democracy: future taxpayers, voters, elected representatives, and judges. Teaching students at a young age to be cautious about whom they associate with, where they seek a quiet moment, and what student groups they join, lest they be remotely identified at the touch of a button, is a poor lesson for the future leaders of a democracy.

Unfortunately, evidence suggests they are already learning that lesson. The San Antonio district’s RFID program supplements the magnet school’s 200 already-existing surveillance cameras. “The kids are used to being monitored,” district spokesman Pascual Gonzalez told Wired magazine.

This civic burden is ultimately likely to fall most heavily upon poor and minority communities. As others have noted, chronic underfunding of public schools is a genuine crisis, and schools have a responsibility to recoup every dollar they can. And indeed, schools in poor communities may face security challenges that militate in favor of more stringent student oversight.

But wealthy parents who object to acclimating their children to a surveillance state have other options: they may choose private school or intervene with their school board or legislature. Parents in poorer communities, by contrast, will inevitably have far less capacity to seek other alternatives or to advocate on their own behalf. With the “schoolhouse to jailhouse” track already well documented, it is perhaps cynically brilliant to prepare already marginalized students for their future lives as prisoners.

Moreover, any time our sensitive personal information (and information about where we go is increasingly recognized as being among the most sensitive) is available to an arm of the government, the next question should be: what happens to the data?

A letter from the San Antonio school district introducing the program explains that the cards will automatically transmit students’ location (via a randomly-generated serial number) to electronic readers. Neither the letter nor the district’s dedicated website describes whether or how location information is saved in the system. And while the letter adds that students will not be tracked off campus, the parameters of the current system are no guarantee of the capabilities of a future system. (This is setting aside the additional concerns about how easy the system is to trick or override in a variety of ways.)

This capture and sharing of information is already playing out in a variety of realms. State departments of motor vehicles hold a wealth of valuable biometric information; as facial recognition technologies improve, the DMVs are under increasing pressure to share that information with the FBI for its own biometric databases. Similarly, both states and federal agencies are establishing networks of license plate readers that track the movements of drivers on public roads; there are no consistent retention rules for that information, at least some of which is funneled to federal fusion centers. And another kind of location information – that gleaned from the cellphones of both criminal suspects and the innocent people in their vicinity – is increasingly accessible to law enforcement, with rules about its collection, retention, and sharing only spottily available and often inconsistent from state to state.

Much of this activity arises from the post-9/11 mandate to share critical information. Building dossiers on innocent Americans, however, is both counterproductive and historically ill-advised. In addition to adding to the proverbial haystack of information, the mass collection and centralization of innocuous information, as the Church Committee observed nearly four decades ago, “creates a temptation to use it for improper purposes, threatens to ‘chill’ the exercise of First Amendment rights, and is inimical to the privacy of citizens.”

It is enticing to use sophisticated technology to solve a short-term problem. But schools, parents, and legislators committed to a robust democracy should pause before employing a technological solution to the problem of school funding. And we should all demand to know exactly how sensitive information about us is being housed, kept, and shared.

Why We Should Still Pay Attention to Voter Registration Drives

Lucy Zhou — 2012-12-04T14:14:02+00:00

If you thought voting rights battles ended with the election, think again. Tomorrow morning the U.S. Court of Appeals for the Fifth Circuit will hear argument in an action challenging Texas’s new laws restricting voter registration drives. U.S. District Court Judge Gregg Costa issued an injunction blocking the laws in August. The Brennan Center, along with the League of Women Voters and Rock the Vote, has filed an amicus brief urging the appellate panel to uphold the lower court’s ruling.

Each election cycle, hundreds of thousands of new voters are registered through nonpartisan groups like the League of Women Voters and Rock the Vote. Their efforts often target citizens who face the greatest barriers to registering at government offices or online, such as the elderly or disabled, and low-income and minority groups. Moreover, Texas could use the help. As of November 2010 (the latest available data), 53.2 percent of the state’s eligible citizens were registered to vote, which places the Lone Star State 46th in voter registration, between New Jersey and Nevada. Nationally, 59.8 percent of eligible citizens are registered, according to the Census Bureau.

But just as many states have attempted to restrict the franchise through voter ID laws, legislatures cracked down on voter registration drives conducted by third parties such as the League of Women Voters. Texas stands out for its particularly onerous restrictions. To register voters in Texas, one has to be appointed a county ‘volunteer deputy registrar’ or VDR. Among other things, all VDRs must be Texas residents, undergo a training program, hand-deliver all completed voter registration applications within 5 days of receipt, can only register voters in the county in which they were appointed, and can lose their appointment if they submit incomplete forms. “All told, the Texas regime is restrictive – and uniquely so,” Judge Costa wrote. “[N]o other state of which this Court is aware has gone as far as Texas in creating a regulatory web that controls so many aspects of third-party voter registration activity.”

The alleged purpose of these burdensome government regulations is to combat voter registration fraud. Yet, Texas’s stringent laws have not been shown to be any more likely to deter voter registration fraud. Rather, Texas’s laws limit the ability of private voter registration groups to engage citizens in the political process, and in so doing, have frustrated the primary purpose of voter registration drives and infringed upon basic First Amendment rights.

Sadly, all of this litigation could be avoided. Texas, like most states, relies on a voter registration system better suited to the 19th century than the 21st. Voter registration modernization should be a top policy priority in order to help bridge the gap. It would add more than 50 million eligible Americans to the rolls, save money, and curb the potential for fraud. As the world’s greatest democracy, the United States deserves nothing less.

Three Ways to Fix Our Democracy

Erik Opsal — 2012-11-21T15:03:16+00:00

Crossposted at Huffington Post.

The 2012 election is over, but there are still clear challenges to the integrity of our democracy. A wave of laws passed in the last two years to make it harder for millions of eligible Americans to vote. Fortunately, most of the worst were blocked or weakened. But they had a clear impact on Election Day — long lines and confusion at the polls, compounded by broken voting machines and poorly trained poll workers. As President Obama said in his speech, “We have to fix that.” Here are three ways to improve our democracy and bring it into the 21st century.

1.) Modernize Voter Registration

America’s voter registration system is ramshackle. It’s straight out of the 19th century, relying on paper forms to register voters. If a voter registers at the DMV, they have to fill out a form, that form is mailed to an election office, and a county official types it into a database. This is not only inefficient and costly, it’s prone to inaccuracy. One mistyped letter or number and a citizen can show up on Election Day and not be able to vote. Not only does it prevent that one voter from having their say, it also affects others by causing bottlenecks and long lines at the polls.

It is time to harness new technology to modernize our voting system, which would add more than 50 million eligible Americans to the rolls, permanently. The Brennan Center’s modernization proposal would use existing computerized lists to pass names of eligible voters from state agencies on to election officials. Citizens could also register or update their registration online or at the polls, and registrations would move with a voter when they move within a state. In recent years, at least 21 states — without fanfare and in a bipartisan way — have implemented parts of this proposal. These experiences demonstrate that modernization increases accuracy and registration rates, minimizes the potential for fraud, and saves money.

2.) End Government Dysfunction

When Americans go to the polls, they vote for legislators who will get something done. Unfortunately, the Senate has made this virtually impossible, largely to due to the rampant abuse of the filibuster. According to a new Brennan Center report, the current Congress had the lowest output in decades, enacting just 196 public laws. In that time, the Senate passed a record-low 2.8 percent of bills, and filed 385 cloture motions — the only way to end a filibuster — more than the total number filed between 1917 (when they started) to 1988.

As Senate Majority Leader Harry Reid noted on election night, “It’s time to put politics aside, and work together to find solutions. The strategy of obstruction, gridlock and delay was soundly rejected by the American people.”

The 113th Congress offers a new opportunity to end this dysfunction. With a fresh set of newly-elected Senate reformers, there is a real chance to change Senate Rules and curb the worst filibuster abuses, “the very rules at the heart of legislative paralysis.” On the first day of the legislative session in January, the Senate can amend its rules by a simple majority vote, instead of the 67-vote threshold normally required. The Brennan Center report offers multiple reform proposals, including, among others, requiring 40 votes to sustain a filibuster (rather than the 60 votes currently needed to break one) and forcing filibustering Senators to stay on the floor and debate, as was true in the past. These basic reforms would start to bring the Senate into the 21st century.

3.) Combating Citizens United

We saw a record $6 billion spent in the 2012 election. The impact on the presidential race was less than expected, but big money remains a significant threat post-Citizens United. The Brennan Center and Democracy 21 have a plan to combat Citizens United by boosting the power of small donors in federal elections. Harnessing new breakthroughs in small donor fundraising, along with a multiple matching fund system, this innovative reform would amplify the role of average voters. The proposal shows how a small donor matching fund model — used successfully in New York City and elsewhere — could work for Congressional elections.

America is the world’s leading democracy, but that doesn’t mean there aren’t improvements to be made. By modernizing registration, ending government dysfunction, and combating Citizens United, we can put the people back in charge of our democracy.

Money in Politics This Week

Syed Zaidi — 2012-11-16T21:54:45+00:00

For more stories on an ongoing basis, follow the Twitter hashtag#moNeYpolitics and #fairelex.

CAMPAIGN FINANCE REFORM AND ETHICS NEWS

NEW YORK

Tech Industry Leaders Push for Fair Elections in New York State

A group of more than 30 technology industry leaders have endorsed the Fair Elections effort to overhaul New York State’s campaign finance laws. In an open letter to Governor Andrew Cuomo, the tech leaders encouraged the Governor to continue to take the lead in pushing for a system of citizen-funded elections that matches contributions by small donors. The tech advocates pointed to the success of crowd-funding platforms like Kickstarter, where citizens can pool resources to support new business ventures, and open-source software as examples of the transparent, diverse and grassroots-oriented culture of the web. “It is time to bring the same way of doing things to campaign finance in NY State, and create a national model that will strengthen small-d democracy,” they insisted. Unfortunately Albany is currently dominated by a small number of affluent campaign donors, professional influence-peddlers and deep-pocketed special interests. New York Tech Meetup chairman and Persona Democracy Media founder Andrew Rasiej said it best, “Democracy is an incredible application, but it’s time for an upgrade to work out some of the bugs that have crept in.”

New York City Campaign Finance Board Tough on Campaign Violators

The New York City Campaign Finance Board has fined Brooklyn ex-City Councilman Kendall Stewart with $200,000 for a series of legal violations. Stewart will have to pay back $136,940 in public funds that he received for the race plus $60,888 in penalties for violating a dozen different regulations, unless he successfully appeals the decision. The Board has charged Stewart with exceeding the spending limits candidates agree to abide by in exchange for public funds, engaging in illegal campaign coordination with his local political club, and failing to respond to requests for post-election audits, among other offenses. The case is an example of the excellent enforcement of the laws on the books by the NYC Campaign Finance Board. Stewart must repay all the fines before receiving any more public funds and may see liens placed on his personal property.

NATIONAL

67 Percent of Americans Support a Small Donor Matching System

Reform NY has previously reported on numerous polls and surveys that express near universal disgust by Americans at our system of legalized political bribery. In the latest poll of 1,000 likely 2012 voters by Greenberg Quinlan Rosner, Americans are evermore alarmed at the rate of campaign spending this election cycle and increasingly supportive of overhauling the way our elections are financed. Approximately 61 percent of respondents give the current level of money in politics an unfavorable rating, including 62 percent of Obama voters and 60 percent of Romney voters. Two-thirds of Americans believe that our democracy is undermined by big donors and secret money. Trust in our institutions is faltering as well. A strong majority think that special interests, lobbyists and campaign contributors have the most influence over how members of Congress vote as opposed to their constituents. In perhaps the most startling news, 67 percent of Americans support creating a system which matches small donor contributions (below $100) with public funds, while large majorities support greater disclosure of outside money (85 percent) and closing the revolving door between Congress and lobbyists (81 percent). David Donnelly, executive director at Public Campaign Action Fund states that “Republicans, Independents, and Democrats all agree—our political system too often rewards those with the most cash and elected officials should take action to restore our democracy to one that is of, by, and for the people.”

Occupy Wallstreet and Tea Party Join Hands with Abramoff to Reform Federal Campaign Finance

What do the head of the Tea Party Patriots, an Occupy Wall Street organizer, a former lobbyist, and a Harvard law professor all have in common? They all support major reforms to our campaign finance system. A bipartisan grassroots campaign dubbed Represent.Us is building public support for a new proposal, the American Anti-Corruption Act. The proposed American Anti-Corruption Act restricts contributions by lobbyists to $500 per year, subjects unrestricted Super PACs to the same contribution limits as conventional PACs, broadens federal disclosure requirements to all organizations spending $10,000 or more per election cycle, establishes a five-year moratorium between exiting Congress and entering K Street, and institutes a $100 tax rebate that voters can use to support candidates that agree to accept no more than $500 per contributor per year. After gathering 1 million signatures in support of the initiative, the group hopes to garner Congressional co-sponsors for the legislation.

Post-election Spending Round-up

The flood of money in the Presidential and Congressional races this election cycle was truly shocking. According to the Center for Responsive Politics, $6 billion was spent on the Presidential election. The average winning House candidate spent $1.4 million this year, whereas the winning candidate for Senate spent $9.5 million on the campaign trail. Spending also proved to be remarkably effective in Congressional races. House candidates with more campaign and outside money on their side won 92.7 percent of House races. In the Senate, 63.6 percent of candidates that spent more were victorious. In total, Super PACs and non-profits spent about $1 billion, with $562 million of that directed towards the Presidential race and $360 million for Congress. Of this $562 million figure from the Presidential election, 23.7 percent was from groups that provided no disclosure of their contributors. Analysis by US PIRG and Demos shows just how easily a few wealthy elites drowned out the voices the regular Americans. It took nearly 1.4 million grassroots donors who contributed under $200 to the Presidential candidates to reach a total of $285.2 million. They were overshadowed by just 61 big donors that gave an average of $4.7 million each to Super PACs to reach that same figure--$285.2 million.

Campaign Fundraising Continues Post-Election

Candidates in close House races that are yet to be decided are pleading with donors for assistance as they likely head up litigation challenges and recounts. Reviews of internal and public campaign emails, as well as Federal Election Commission records by The Hill reveal that several campaigns have kept their fundraising operations up and running. In Florida, Representative-elect Patrick Murphy’s campaign sent out an email asking for a monetary “gift” for the “lengthy legal battle” that is about to follow. His opponent, incumbent Representative Allen West (R-FL) has a little less than $3.4 million on hand to fund a legal challenge to these elections results. In California, Ami Bera, Democratic challenger to incumbent Dan Lungren (R-CA), recently asked supporters for more funds to ensure that “every vote counts.” In our high stakes system, mega-political contributions coupled with high spending are a norm that continues well after elections. Recent victors in Capitol Hill are eager to raise more funds, some hoping to retire debts from the campaign trail while others prepare in advance for the next election cycle. The Gula Graham Group has invited lobbyists to nearly 40 Republican fundraisers, 19 of which are scheduled for next week. The events cost anywhere from $500 to $2,000 per head. These early fundraisers are a prime opportunity for lobbyists to get to know the newest faces in Congress. According to Adam Smith, communications director at Public Campaign, “The fundraising never stops in Washington. These lobbyists are trying to influence this debate and there’s no better way to make your case than by handing over a $1,000 check to a Member of Congress.”

Montana Dark Money Non-profit’s Donors Revealed

Earlier this month, Reform NY reported about the ProPublica and PBS Frontline investigation into a non-profit “social welfare” organization formerly named Western Tradition Partnership and now called American Tradition Partnership. Non-profit 501(c)(4)’s manipulate loopholes and lax enforcement of Federal Election Commission and Internal Revenue Service regulations to hide the identity of their donors. WTP’s bank records were released by a court, and the latest examination reveals not only the major contributors to the organization but also evidence of possible illegal coordination with political campaigns. For example, WTP bank deposits include a $557.50 check from Montana Legislator Dan Kennedy to Direct Mail and Communications, a printing company. Direct Mail and WTP share a post office box. Furthermore Allison LeFer, who runs Direct Mail, is the wife of Christian LeFer, a former WTP official.

California’s Death Penalty Vote: It’s Time to Reconsider “Justice”

Gabriel Daniel Solis — 2012-11-15T23:30:49+00:00

Crossposted on The Huffington Post

On Election Day, 52 percent of California voters cast ballots to keep the death penalty.

Such a small margin suggests that voters may be inching closer to abolishing capital punishment in the state. Advocates ran a well-coordinated, anti-death penalty campaign that offered compelling moral, legal and fiscal arguments that did not take hold of the electorate. So why did the majority vote to keep the death penalty?

Some commentators have noted that voters' decision to keep the death penalty was based more on their conception of "justice" than these other arguments. They suggest that the vote indicates a belief that "justice" for a murder victim can be only achieved when the murderer's life is taken away -- an "eye for an eye."

The notion that justice for a crime equals the most extreme punishment is a commonly held conviction in the United States. For example, when President Obama pledged that "justice will be done" in response to the recent attacks on the U.S. Mission in Libya, the automatic assumption was that he meant that those deemed responsible would be killed.

Unfortunately, public and media discussions of crime ignore the widespread and devastating effects of crime -- including the actual crime and the punishment itself -- on society beyond the victim and the perpetrator. Such a discourse cultivates a narrow conception of justice that ignores the societal reverberations and total human costs of policies like the death penalty and mass incarceration.

For example, in our country there are countless families broken with loved ones sitting in prison cells and on death row. Many of these prisoners have serious mental illnesses, which may have contributed to their crimes, yet continue to suffer without adequate treatment. Other prisoners continue to endure untreated psychological trauma, themselves victims of physical, emotional or sexual abuse.

The current criminal justice system does not recognize or take into account the stories of these individuals beyond the crime. As a result, their suffering becomes invisible.

A complete concept of justice should more fully consider and understand the suffering of all those affected by crime. Justice should not be narrow, but expansive. It should consider all the contributing factors and consequences of crime and violence. It should go beyond simple reactionary instincts to punish, but instead focus on shared humanity and shared suffering. Justice should never be satisfied with incomplete narratives about crime that lead to harsh punishment, but should instead always strive toward fairness, equality and inclusion.

Those seeking to reform the criminal justice system should work to educate the public about the stories of all those who suffer at the hands of the criminal justice system. The public, the media and lawmakers can then begin to understand the effects of the instinct to see justice as simply punishment. These stories will reshape the concept of justice.

The vote in California to keep the death penalty -- and other unsuccessful efforts to reform the broken criminal justice system -- provides an opportunity to reflect on how the country can reconsider its collective understanding of justice.

Gabriel Daniel Solis is a Research Associate in the Justice Program at the Brennan Center for Justice at New York University School of Law.

Modernization Can Fix Long Voting Lines

Wendy R. Weiser — 2012-11-12T15:20:36+00:00

Millions of Americans stood in long lines on Tuesday to exercise their right to vote. In Florida, some stood in line for 5-7 hours on early voting days, and on Election Day, until 1 a.m. in Miami-Dade County.

It is heartening to see that so many Americans were willing to wait in line so long just to exercise their fundamental right to vote, to have their say in our democracy. But the fact that they had to do so is a national disgrace.

A long and confusing ballot was certainly part of the cause, but it was not the only one. It is not acceptable that in America there are simply not enough times and places for citizens who take responsibility to vote actually to vote.

Instead of making sure that all citizens can participate, this past year, the Florida legislature actually cut back on voting opportunities, reducing the early voting days from up to 14 days to no more than eight. Floridians essentially lost an entire workweek of voting, as well as the Sunday before Election Day.

And now we see the devastating effects. Across the state, and especially in southern Florida, lines snaked around blocks for hours. Some groups were especially hard hit by the early voting cuts. In 2008, African Americans used early voting at twice the rate as white voters on the days that were cut. They made up a full one-third of early voters on the Sunday before Election Day.

Florida’s cutback on early voting was part of a broad national movement to restrict voting rights this past year. Luckily, most of the harshest new laws that would have made it harder for eligible Americans to participate were blocked or blunted before the election. But damage was still done.

One important takeaway is that it is not acceptable for politicians to be able to manipulate the rules of elections to make it harder for some citizens to vote, just for their own political gain. To ensure that our elections are free, fair, and accessible, we need to expand opportunities for voters to participate, not cut back on them.

As the leading democracy in the world, we need a modern voting system that actually works for all Americans. That means we need to upgrade our ramshackle voter registration system, which also causes delays at the polls. Every year, several million eligible Americans show up at the polling place only to find their names not on the voter rolls. This can slow things down, as poll workers look for names or as voters are shunted into the more time-consuming (and less reliable) provisional ballot process.

If we use computer technology to modernize our voter registration system, we can make sure that every eligible American who wants to be registered is actually signed up, and stays registered when they move — all while saving money and reducing the opportunities for fraud and abuse.

Also, despite the radically decentralized nature of our voting system, there should be minimum national standards to ensure that every American has a meaningful level of access to voting, without too much hardship.

It is not too much for Americans to expect that every eligible voter who wants to be registered is actually on the list, and every voter who shows up at the polls to vote can actually do so.

Now is the time to fix the system — when the wounds caused by the problems in our voting process are still fresh, and when there isn’t a major election on the horizon.

The election may be over, but our fight for our democracy is ongoing.

An Electoral Tragedy

David Earley — 2012-11-09T22:33:34+00:00

On Election Day, I had the privilege of volunteering for an election protection hotline that took phone calls from citizens who had difficulty voting. To say that it was an eye-opening experience would be an understatement. The day made clear to me that our voter registration and election administration processes are in need of fundamental overhauls.

From the moment I arrived at my call station that morning, my phone rang essentially nonstop with calls from concerned voters. Seven hours ultimately elapsed from the time I initially sat down until I had the chance to take even a short break that afternoon. And I was only one of hundreds of volunteers fielding thousands of calls from voters facing difficulties.

One of the most common issues I encountered was registration problems. Roughly 75 percent of the time, I wasn’t able to find a registration record for a caller inquiring about his or her registration status, suggesting, though not guaranteeing, that that particular person wasn’t registered to vote. Sometimes the person had moved recently and hadn’t updated his or her registration information, while other times the person had failed to register at all. Depending on state law and how far the person had moved (which seems like a particularly absurd determinant of whether one can vote), many of these people were ineligible to vote merely because of a registration defect.

There is no obvious reason to require citizens to initially register to vote and continuously update their registration information in order to vote rather than having the government address these concerns automatically. Once a citizen comes of age — 18 according to the 26th Amendment — that person should have to do nothing more than show up at his or her respective polling place on Election Day in order to vote and to have the vote counted. In fact, I received a call from a person whose dual-citizen daughter wanted to vote, but had not registered ahead of time. Because the caller’s country has automatic voter registration, she was shocked when I told her that her daughter had to register in advance in order to vote. Her daughter didn’t vote.

Another call I received came from a person who had lived at the same home and voted at the same polling place for 25 years. She discovered on Election Day that not only had her polling place been relocated without her knowledge, but also that she had somehow been designated as “inactive” by the state and didn’t appear in the pollbooks. She was justifiably outraged at having to cast a provisional ballot.

The other significant issue I received calls about had to do with polling place administration. Numerous callers complained of long lines snaking down crowded hallways and onto the chilly sidewalks outside. Others expressed concern with confusing voting procedures, citing a lack of poll worker assistance and oversight. One caller’s disability caused her to struggle to stay in line, find her way around the polling place, read the small text on the ballot, and ultimately cast her vote; she was brought to the brink of tears by the end, though she was able to vote. Another person said he waited in a long line and went home twice without voting because his disability made it too difficult for him to wait so long in the cold. I told the man that he could take someone with him to the polls to help him vote, but he said he didn’t know of anybody who could assist. I doubt he was able to cast his ballot.

Voting should be accessible for all eligible voters. Rather than being greeted by lengthy lines, unknowledgeable poll workers, and confusing procedures, voters should be able to vote in a matter of minutes with no difficulties. I personally was able to vote on Election Day without many problems, but not completely without incident. A pollbook worker asked me for “something with my name on it” — which is illegal in New York — and I ended up having to hand my filled-out ballot to a different poll worker to have it put into the scanning machine, exposing my choices for everybody nearby to see and infringing upon the sanctity of the secret ballot. These were relatively minor deficiencies compared to the problems I heard about on Election Day, but they were deficiencies nonetheless. Instead of being the lumbering monstrosity we have today, the voting process should be like a well-made Rube Goldberg machine: carefully constructed, flawless in operation, easy to use, and inspiring to behold.

I was glad to have the chance to help citizens vote on Election Day, but the conglomeration of calls I received laid bare to me the inadequacy of our current election system. As President Obama said in his victory speech regarding long lines at polling places, “we have to fix that.” We, as a nation, need to fix our voting registration procedures and our voting processes. Failing to do so threatens the legitimacy of election results and, indeed, our democracy itself. The rightness of having the authority to govern stems directly from all voters’ voices being able to be heard at the ballot box. A government based upon anything other than the will of the people is truly a tragedy.

Money in Politics This Week

Syed Zaidi — 2012-11-09T21:54:23+00:00

CAMPAIGN FINANCE REFORM AND ETHICS NEWS

NEW YORK

NY State Attorney General Should Investigate Shadowy “Non-profits”

Citizens Union has filed a formal complaint with New York Attorney General Eric Schneiderman, asking the office to investigate a Virginia-based 501(c)(4) that poured money into New York State Senate races. Article 7-A of the Executive Law requires charities and nonprofits that solicit contributions from residents, corporations foundations or government agencies in New York to register with the State Charities Bureau. Common Sense Principles, which claims to educate the public about limited government and fiscal responsibility, commissioned dozens of mailers in at least three key State Senate districts, targeting Monroe County Legislator Ted O’Brien, Assemblyman George Latimar (D-Rye) and Senator Joe Addabbo (D-Queens). By organizing as a charitable organization rather than a political committee, Common Sense Principles has avoided the greater level of transparency that political committees are subject to. According to Citizens Union executive director Dick Dadey, “registration with the Charities Bureau is one existing mechanism that can help shed light on 501(c)(4) organizations engaging in this political activity, though campaign communications and expenditures by veiled third-party entities and individuals should be disclosed in a manner similar to candidate campaign committees.”

Notable Success by Two Anti-Super PAC Super PACs

Friends of Democracy, the Super PAC opposed to Super PACs, had formidable success in helping to elect reform-minded candidates in New York State and Congressional races. In an upstate New York Senate race, Friends of Democracy and a similar Super PAC, Protect Our Democracy, spent $250,000 each to assist Cecilia Tkaczyk, a Duanesburg dairy farmer and school board member who has voiced her support for campaign finance reform and citizen-funded elections. Her opponent, Assemblyman George Amedore, is largely viewed as a defender of the status quo. Tkaczyk is leading thus far by 139 votes, but the race will not be settled until all absentee ballots are counted over the coming weeks. In New York Congressional races, Friends of Democracy was involved in the contest between Sean Patrick Maloney and Nan Hayworth in the lower Hudson Valley’s 18^th district, as well as the race between Dan Maffei and Ann Marie Beurkle in Syracuse’s 24^th district, targeting reform opponents Hayworth and Beurkle. Jonathan Soros, co-founder of Friends of Democracy, stated that the results signal an unprecedented and important message to lawmakers: "Being on the wrong side of reform can cost you your seat."

NATIONAL

Money Totals from the Presidential Campaign

Now that the Presidential election is over, it is time to do crunch the numbers. According to the Sunlight Foundation Influence Explorer, President Barack Obama raised $639 million for his campaign, and spent $553 million. Mitt Romney raised $393 million and spent $360 million. In the aftermath of Citizens United, independent expenditures were quite heavy this cycle. The duo of Super PACs and non-profits, bearing advantages such as unlimited spending and secret donors, provided extensive funds to keep the Presidential campaigns going. Nearly $26 million worth of independent expenditures were made supporting Barack Obama and over $330 million opposing him, according to totals by Sunlight’s Follow the Unlimited Money. Super PACs and non-profits spent $64 million supporting Mitt Romney, and $94 million against him.

Big Contributions Came Largely from White and Wealthy Neighborhoods

Almost all of the large contributions that fueled the Presidential campaigns came from people who live in predominantly wealthy, white neighborhoods. Analysis by AP assessed all contributions over $200 based on census blocks—neighborhood units described by the U.S. Census Bureau. Hispanics constitute 16 percent of the U.S. population but less than 4 percent of large political donations came from majority-Hispanic neighborhoods. The trends were similar for campaign contributions from majority-African American, Asian or Native American neighborhoods. Majority-white neighborhoods accounted for more than 90 percent of big donations this Presidential election cycle. A citizen-funded matching system, such as the one in New York City would likely change this equation. The fair elections system in New York City boasted dramatically greater political contributions from minority and poor neighborhoods in City Council races, when contrasted with New York State Assembly contests, which lack small-donor matching funds.

Citizens Unite Behind Opposition to Citizens United

As voters headed to the polls to elect the next President across the United States, citizens in Montana and Colorado had the opportunity to demonstrate their views on corporate personhood and unlimited campaign contributions. The Citizens United decision by the Supreme Court held that independent expenditures by corporations and unions cannot corrupt. A subsequent ruling by a lower court opened the door for corporations and unions to spend unlimited sums as long as their spending is independent of campaigns. In Montana’s challenge to Citizens United, the Supreme Court extended its ruling to state and local laws, in addition to federal. Montana’s Initiative 166, Stand with Montanans, establishes an official policy that corporations are not people with constitutional rights, and charges state elected officials with supporting a constitutional amendment. More than 70 percent of the electorate voted for the initiative. Montana, a solid red state, provides testament to the notion that citizens across the political spectrum demand reform of our broken campaign finance laws. In Colorado, Amendment 65 instructs Colorado’s Congressional delegation to propose an amendment to the U.S. Constitution that allows Congress and states to limit campaign contributions and spending. Amendment 65 garnered 74 percent of the vote with 95 percent of precincts reporting. The Colorado and Montana resolutions are the first statewide initiatives by citizens calling for the overturn of the controversial court ruling. Eleven state legislatures have already passed resolutions denouncing Citizens United including California, Hawaii, Massachusetts, New Jersey, New Mexico, Rhode Island and Vermont.

How Money Mattered this Election cycle

In the aftermath of the Presidential election, pundits are analyzing whether all the money spent by candidates, parties, Super PACs and non-profit “social welfare” organizations actually mattered. Early analysis by the Sunlight Foundation reveals that the drastic surge may not have been the crucial determinant of election outcomes, at least in races for the House. Outside spending did not alter the likelihood of winning although it did increase the vote share of the candidate favored by the group. For Republicans, each additional Super PAC million boosted the Republican vote share by 0.16 percentage points. But it is too soon to dismiss the role of outside money and its impact on our elections. Money mattered to a great extent in smaller races, especially when it arrived as a surprise and en masse. These four House races provide stark examples of instances where outside money made the vital difference. On the other hand, direct spending by candidates had a positive relationship with the probability of victory. In the 25 House races with no consistent lead, the candidate the spent more won 60 percent of the time. In cases where one candidate outspent the other by at least $500,000, that candidate won 65 percent of the time. Whatever the outcomes, the big donors sent a clear message to all candidates that they cannot ignore those who bankroll them. As the American Prospect put it, on “November 7th, the real game begins—when those who purchased a full term of access to their favored candidate begin to exercise an undemocratic advantage over the millions of Americans who merely voted, to shape the laws and regulations that are written for all of us.”

Several Pro-reform Senators Elected Tuesday

Fellow Americans disgusted by the influence of big money over our elections may be relieved by the knowledge that six new Senators who are stalwart supporters of campaign finance reform, will be joining the Congressional chamber next year. The new Senators will be replacing Senators who were absent, inactive or in some cases entirely against the prospect of citizen-funded elections. Senators-elect Tammy Baldwin (D-WI), Martin Heinrich (D-NM), Chris Murphy (D-CT) and Mazie Hirono (D-HI) co-sponsored reform initiatives such as the Fair Elections Now Act during their tenure in the House. Senator-elect Elizabeth Warren’s (D-MA) campaign website specifically mentions her support for citizen-funded elections. Former Governor and Senator-elect Angus King (I-ME) is a fervent supporter of his state’s Clean Election system. In the lower chamber, 114 House members that co-sponsored the Fair Elections Now Act or the Grassroots Democracy Act will join the 2^nd session of the 112^th Congress.

Even If It Ain’t Broke, It Still Might Need Fixing

Liza Goitein — 2012-11-09T17:47:18+00:00

I wasn't quite sure what to expect when I showed up for my 7-hour shift to field phone calls for the Election Protection hotline, where I would assist people who had voting-related questions or problems. Although the Brennan Center is well-known for its work on securing free, fair, and accessible elections, my work with the Liberty and National Security Program focuses on a different set of issues. But even before my shift that day, I had heard the horror stories: poll workers demanding identification that the law doesn't require, baseless challenges to voters' eligibility, anonymous organizations sending out postcards listing the wrong times and locations for voting, widespread voting machine failures, and more.

So I was initially relieved when the first few calls I took didn’t involve any of these underhanded practices or system breakdowns. Instead, the callers were people who had moved since the last election and had not registered in their new precincts. By design, most of the calls coming into this particular hotline site were from South Carolina and Tennessee—two states where voters must register at least 30 days before Election Day. The callers had simply missed the deadline, and many of them were now ineligible to vote. No trickery, no manipulation of the rules, no scandal: just the system at work.

But as the day wore on and it became apparent that the substantial majority of calls were on exactly this issue, I began to feel differently. The callers who learned that they would be ineligible to vote were frustrated, even devastated. Most were simply unaware that they needed to re-register after moving within the state, while others thought they could report their address change when they showed up to vote. To be sure, there were some who vaguely knew of the re-registration requirement and just hadn’t gotten around to doing it. But to them—and, by the end of the day, also to me—exclusion from our nation's democratic process seemed far too great a penalty for the modest and common crime of procrastination.

We are a mobile society, particularly in times of economic hardship when people may be forced to move frequently in order to find employment opportunities. Why should Americans be prohibited from voting simply because they changed their residence since the last time they voted? There are far better and less exclusionary ways—such as the Brennan Center's Voter Registration Modernization proposal—to maintain up-to-date, accurate lists of eligible voters. The fact that the current official solution to geographic mobility is to bar large numbers of people from voting is, in its own way, just as scandalous as the use of trickery to restrict access to the polls.

Throughout the day, I did end up witnessing some obvious attempts to manipulate or pervert the system, as well as instances of system breakdown in the form of machine failures and the like. But what I mostly saw was this: even when the system works, it doesn’t work. President Obama was right—we have to fix that.

We Have to Fix That

Wendy R. Weiser — 2012-11-09T16:49:17+00:00

On Tuesday, millions of Americans stood in long lines at crowded polling stations to exercise their right to vote. It was heartening to see that so many Americans care so deeply about their democracy that they were willing to endure considerable inconvenience to have their say. Although most were ultimately able to cast a ballot, the long lines were a disgrace. As President Obama said that night, “We have to fix that.” And we have to do so now.

Long lines were the most visible manifestation of the problems with our voting system; unfortunately, those problems run deeper. I spent Election Day helping to field calls from voters across the country on behalf of the Election Protection Coalition, which runs the nation’s largest non-partisan voter protection hotline. I have also been monitoring the election process and its problems throughout the lead-up to November 6th. These are the key takeaways.

We Need to Modernize Our Voter Registration System

By far the biggest problem with voting in America is our ramshackle voter registration system. Year after year, millions of eligible Americans show up at the polls on Election Day only to find that they cannot vote because their names are missing from the voter rolls. According to a Harvard/MIT study, in 2008, an estimated 2 to 3 million eligible Americans tried to vote but could not because of voter registration problems, and millions more were thwarted by registration deadlines and residency requirements.

This problem was acutely apparent on Tuesday. Longtime voters all across the country, including in Pennsylvania, Ohio, Connecticut, and Colorado, called Election Protection from the polls because their names were not on the rolls. New voters who registered before the election also reported being missing from the rolls in states like Virginia, Missouri, Pennsylvania, Ohio, and elsewhere. Whether this was because of unfair purges of the voter rolls, deliberate subterfuge, or just plain error, the effects are the same: delays and long lines at the polls, and eligible voters being left out. We have to fix that.

To do so, we need to modernize our voter registration system. The good news is that the technology exists to put in place a more accurate system where the government makes sure that all eligible citizens who want to be registered are actually signed up, that voters stay registered when they move, and that citizens can still vote if there are mistakes on the rolls. All we need is the political will. Bringing our voter registration system into the 21st Century will not only help voters, it will also save millions of dollars and reduce the opportunities for fraud and abuse. There is simply no excuse not to do it.

We Need to Set Minimum Standards for Voter Access and Early Voting

When a citizen takes responsibility to show up to vote, the government has a responsibility to ensure that she actually can cast a ballot. Unfortunately, too many states failed to meet that basic democratic responsibility for far too many voters. Americans across the country were kept from voting for hours, and even for good, because their polling places could not handle the number of people who tried to vote. Long lines weren’t only a problem in hurricane-ravaged parts of New Jersey and New York; Election Protection fielded reports of long lines in Virginia, Florida, Michigan, Ohio, Georgia, and elsewhere. With the estimated 2012 turnout lower than that in 2008, there is no excuse for states not to be ready for the voters who showed up. We have to fix that.

One simple way to ensure that every citizen has adequate access to the voting booth is to set minimum standards for voter access and early voting. Fair and equal allocation of polling places, polling hours, voting machines, and election staff will go a long way toward smoothing out election administration and reducing long lines. Early voting too can ease the pressure and the lines on Election Day by spreading out voters over a longer period of time. Expanding the hours and days for voting can also provide voting opportunities for those who have work or childcare obligations that would make it difficult for them to vote on a Tuesday.

We Need to Invest in Our Election Infrastructure and Professionals

Once we set the minimum standards for holding an election, we need to invest to make sure that states meet those standards: that there are enough polling places, with enough machines and ballots, and enough support. Unfortunately, that was not the case in many jurisdictions this year. We have to fix that.

An investment in better poll worker recruitment and training would also go a long way toward reducing problems on Election Day. Indeed, voters in virtually every state complained about poll workers who didn’t know the rules or the voting equipment. Increased professionalization would also make a difference.

We Need to Stop the Voting Wars

Over the past two years, we saw a massive number of new laws that would have made it harder for eligible Americans to vote — 25 new laws and 2 executive actions in 19 states. This kind of partisan manipulation is unacceptable. Fortunately, the bulk of the most restrictive new laws were blocked or blunted by courts well before Election Day. But Election Day made it clear that those new laws keep far too many eligible Americans from voting. Even where new laws were blocked, they created confusion at the polls and made it harder many eligible Americans to vote.

The incredibly long lines we saw in Florida and Ohio were in part a legacy of this movement to restrict voting. Both states had cut back substantially on early voting days and hours, just as that form of voting was becoming especially popular. African Americans in particular used early voting at twice the rate as white voters in Florida in the days eliminated by the new laws. On the Sunday before Election Day in 2008, African Americans made up a full third of those who voted early, but only 12 percent of the electorate. Not surprisingly, with the reduced early voting times, African Americans and Hispanics had to wait far longer than white voters this election, according to two recent analyses.

In Pennsylvania, a court blocked a controversial new voter ID law, but that law still caused havoc on Election Day. Election Protection received numerous calls from Pennsylvania voters who were turned away from the polls because they didn’t have the right kind of state-issued photo ID — in clear violation of the law. The problem wasn’t only poll worker misinformation. There were also reports of fliers posted in minority communities and of voters receiving official mailings from state election officials falsely stating that photo ID would be required to vote.

The battles over voter ID caused confusion and harm even in states that did not pass new requirements. Voters from many states, including Michigan, Ohio, Illinois, New Jersey, reported being inappropriately asked for ID or turned away if they did not have it.

In other words, despite the dramatic string of victories pushing back against most new restrictive voting laws this year, efforts to limit voting still hurt voters. It is simply wrong for politicians to manipulate the rules of elections to make it harder for some Americans to participate. Unfortunately, the push to make it harder to vote shows no signs of abating. We have to fix that, too.

To do so, we need strong courts willing to protect basic voting rights, as they did this year. We need more clear-sighted state legislators who are willing to stand up for what is right. And we need more clear sighted citizens to tell their legislators, “Enough is enough.”

America dodged a bullet this year when the presidency was decided by a wide enough margin that litigation was not an option. But we did come perilously close to a nightmare situation in a handful of states where the presidential election could have been thrown into the courts and where the outcome of the election could have turned on these problems. If we don’t fix them now, that could happen next time.

As the leading democracy in the world, we need a modern voting system that works for all Americans. It is not too much to expect a voter registration system that uses 21st Century instead of 19th Century technology. It is not too much to expect there to be enough times, places, and equipment for voting to accommodate all Americans who show up. And it is not too much to expect that the election system will have fair ground rules so that all eligible citizens can participate, and that politicians will not be able to manipulate those rules for their own political ends. This modest investment is needed to ensure that every American who takes responsibility to vote can actually have the opportunity to do so, without hardship. We owe our democracy no less.

A Vote for American Ideals

Inimai M. Chettiar — 2012-11-09T16:37:54+00:00

Crossposted at Huffington Post

When the American people reelected President Barack Obama, they signaled that their vision of the United States is one of inclusion, optimism, and an understanding of the legitimate role of government in helping the country achieve prosperity. Americans do not dream small or think narrowly. This vision of our country manifests itself economically — through an understanding that government investment leads to long term benefits for the whole nation — and socially — as we understand that our differences make us stronger as we all strive together toward the same American Dream.

Throughout their campaign, President Obama and Vice President Biden repeatedly asserted the need for “investments in America” and described how “investing in the middle class will grow the economy.” They offered an investment theory of policymaking — spending some money now in order to reap greater economic rewards later — in sharp contrast to Romney’s theory of cutting spending at all costs.

The majority of voters cast their ballots for wise government investment. They rejected Romney’s theory of bone-deep cuts because they understand that zero investment means zero reward. Our entire economy — from Wall Street to the grocery store down the block — is built on investments. A store owner needs to first invest in his business — renting retail space, buying inventory, and hiring employees — before he can make a profit. Government has a similar role to play when it comes to our nation’s prosperity; the way to save the economy — and the country - is not to blindly cut government costs, but to implement policies that wisely invest government dollars to produce long-term benefits for the entire nation.

Believing the fairytale that that economic solutions only involve cutting costs — instead of analyzing costs and benefits together — leaves us with policies that stunt the country’s growth and compromise our democratic ideals. It leads to underfunded public education, crumbling infrastructure, mass incarceration of large segments of our labor force, and unnecessary foreclosures that destroy whole neighborhoods. The reelection of Obama signals a shift in voter consciousness away from this destructive theory of government policymaking and toward a productive and rational position.

The results of the election are also an affirmation of a vibrant and inclusive definition of what it means to be “American.” As the President recognized in his victory speech, this country was built by immigrants — by a minority seeking to escape oppression and find prosperity in a new land. This nation has grown into a superpower precisely because it is built on diversity, and the innovation and progress it creates.

The demographic coalition that voted for Obama is a complex mix. Obama won the votes of youth, women, African Americans, Latinos, Asians, gay and lesbian Americans, Jews, Christians, the wealthy, the unemployed, and autoworkers. They voted for a leader whose policies will help all of us achieve the American Dream.

They also voted for a black man with an ethnic name, an immigrant Muslim father, a white Christian mother, and an Asian sister. For many of us who look like the President or have names like his, our “Americanness” is continually questioned despite our rightful birth in this country. The continuing Presidency of Barack Obama serves to reinforce the legitimacy of all of us as Americans — regardless of our class, gender, ethnic origin, skin tone, sexual orientation, or religion.

This year’s election was not just about policies and politics. It was about a recommitment to our founding American ideals — inclusion, equality, and the drive that ensures we never stop working toward them.

(Kate Robards contributed to this piece.)

The Privacy and Civil Liberties Oversight Board: An Opportunity to Limit Data Retention and Sharing

Rachel Levinson-Waldman — 2012-11-09T14:45:43+00:00

The Privacy and Civil Liberties Oversight Board (PCLOB) held its long-awaited first public meeting on Halloween Day. Proposed by the 9/11 Commission and statutorily established in its present form in 2007, the PCLOB is charged with analyzing counterterrorism activities, laws and policies and ensuring that have appropriately taken privacy and civil liberties into consideration.

In the past five years, the Board, which is an independent agency within the executive branch, has sat essentially empty, hobbled by Congressional and presidential inaction. In 2011, however, President Obama nominated a chair and four members: former D.C. Circuit chief judge Patricia Wald; Jim Dempsey, Vice President for Public Policy at the Center for Democracy and Technology; Rachel Brand, a former Bush DOJ official; and Elisebeth Collins Cook, a former Assistant Attorney General under Michael Mukasey. In August 2012, the Senate confirmed the four members – two Democrats and two Republicans – but declined to confirm the Democratic-affiliated nominee for chair, former FTC Associate Director David Medine, presumably unable to get a filibuster-proof majority with three months to go before the election.

On October 23, the Board announced that it would hold its first public meeting the following week and requested input on its agenda. Groups submitting written comments included the Brennan Center, the ACLU, the Center for Democracy and Technology, the Center for National Security Studies, the Constitution Project, Defending Dissent, the Electronic Privacy Information Center (EPIC), and the Federation of American Scientists’ Project on Government Secrecy, most of whom were represented at the meeting, along with the Cato Institute. At the meeting, the Board invited other interested groups and organizations to submit statements for consideration.

Unlike some other meetings between civil liberties groups and government agencies in recent years, the meeting did not appear to be simply an attempt to check the public comment box. Most of the attendees knew one another and knew most of the Board members, and the small meeting had an informal and collegial feel. More important, Board members seemed to be genuinely seeking advice on how to direct their energies, given the body’s inevitably limited resources and the multitude of privacy and civil liberties issues before it.

And a multitude it is. Suggestions for the Board’s attention included: targeted killing, surveillance drones, classified programs, data retention guidelines, secret law, the Fourth Amendment, the National Security Agency, the Patriot Act, fusion centers, FBI assessments, searches of electronics at the border, the National Counterterrorism Center, third-party records, the state secrets privilege, the Espionage Act, location tracking via cellphones and license plates, the Foreign Intelligence Surveillance Act, secret Office of Legal Counsel memos, Department of Homeland Security intelligence collection, “big data,” and the Privacy Act.

Participants were united by a shared concern for the extent of the government’s surveillance, targeting, and collection of information about U.S. citizens and residents in the absence of criminal suspicion (particularly on the basis of activities protected by the First Amendment or the targets’ race, religion, or ethnic origin). Most speakers also urged the Board to address and roll back, to the extent possible, the secrecy that shrouds the executive branch’s national security practices.

Liza Goitein, co-director of the Liberty and National Security Program at the Brennan Center, observed that these themes themselves were linked, signaling a reversal of the proper flow of information in a democracy: the government is increasingly withholding information about its own conduct (which should be presumptively available to the people) while claiming an ever-greater right to obtain personal information about law-abiding citizens and residents (which should be presumptively off-limits to the government). And Julian Sanchez of the CATO institute invoked the concept of “civic hygiene,” originally articulated by security technologist Bruce Schneier, who has called it “bad civic hygiene to build technologies that could someday be used to facilitate a police state;” Sanchez argued that the Board should be attentive to the potential damage if all safeguards in place for the government’s information-collection and -retention architecture were to fail.

One of the Board’s greatest challenges may be simply to keep its head above water. The Board is directed by statute to review all proposed legislation, regulations, and policies related to anti-terrorism efforts; continually review all anti-terrorism activities of the White House and the executive agencies, along with the executive branch’s information-sharing practices; evaluate and potentially comment upon the reports from every executive agency’s privacy and civil liberties officer; testify before Congress upon request; and submit periodic reports to various House and Senate committees and to the president. The Board faces the difficult task of balancing that broad oversight authority with an in-depth focus on a small number of issues.

One area referenced above but not addressed in detail at the meeting is likely to be particularly critical: the Board’s role in reviewing the executive branch’s information-sharing practices. Responding to allegations that a failure to adequately share intelligence was a significant cause of the successful 9/11 attacks, Congress and the White House issued a frenzied series of information-sharing mandates. By one back-of-the-envelope calculation, at least thirteen statutes, directives, guidelines, or programs were issued or established between 2001 and 2009, each setting out an element of the information-sharing architecture, sometimes superseding a decree that had been implemented just several years earlier.

While judicious sharing is critical to effective national security, the push for nearly indiscriminate dissemination of information within the government can undermine the civil liberties protections that are built into the front end of information-gathering. As Jeramie Scott from EPIC noted, for instance, the Department of Homeland Security operates the largest domestic information repository of any executive agency (with the possible exception of the National Security Agency, whose largely unknown information-gathering activities and data center are the subject of vigorous speculation). Nevertheless, the privacy impact statements for some critical DHS databases, while purporting to limit the purposes for which information can be gathered, allow for nearly unfettered information sharing not only with other governmental agencies but also with individuals, non-governmental organizations, and even foreign governments, for a range of purposes so broad and so discretionary as to impose almost no limits.

If the government’s information collection continues apace, the criteria for retention and sharing may emerge as the next frontier of the civil liberties battles. The PCLOB would offer a major service by helping to craft limiting principles for the sharing and retention of innocuous information about U.S. citizens and residents.