What We Are Currently Doing About Government Corruption

By John House

RepresentUs New Mexico is a member of the Declaration for American Democracy (DFAD), a national coalition of more than 150 national, state and local member organizations working on various aspects of democracy reform. DAFD engages in a variety of activities, including lobbying our members of Congress in Washington, D.C., attending and speaking at congressional hearings, letter writing campaigns, phone banking on federal, state and local issues and joint letters that individual coalition member organizations may choose to joint sign. Below is the latest coalition letter pertaining “closing the revolving door” between industry professionals and government administrative positions.

SIGN-ON LETTER: To Rebuild Public Trust, Close the Revolving Door

We, the undersigned organizations, call on the winner of the next presidential election to commit not to appoint any individual to a senior policy role in an agency or department with authority over any industry in which that individual held a senior position or served in an advisory capacity within the last five years. We also urge that, if applicable, such individuals be excluded from positions with jurisdiction over personnel matters during the transition.

Trust is a fundamental precondition for effective governance. Yet, Americans’ trust in their government — already frighteningly low prior to Donald Trump’s rise to power — has fallen even further since his inauguration. This should hardly come as a surprise. Throughout the last four years, the public has been subjected to a never-ending parade of conflicted appointees who have enthusiastically set about rolling back the regulations that once restrained their former (and likely future) employers’ most destructive impulses. While corporate interests benefit from this regime, the American public suffers.

The next president must treat this trust deficit like the crisis it is. This moment calls for bold commitments to build an administration that is devoid of serious conflicts of interest and unequivocally committed to advancing the public interest above all else.

Trump did not write the current playbook, even as he has pushed it to new extremes. Steven Mnuchin is, after all, far from the first Treasury Secretary to hail from Goldman Sachs.

Instead of being treated with the care they deserve, appointive positions of public trust have most often been used as political bargaining chips, as rewards for particularly prolific fundraisers, or as if they were reserved for representatives of certain regulated business sectors. As a result, the upper echelons of the executive branch have more often been filled with corporate insiders, many of whom are only months removed from lucrative positions in the industries they are subsequently tasked with regulating (and, indeed, only a few years from a return to those same profitable posts), than with individuals who are unimpeachably committed to advancing the public interest.

The consequence of this practice is that the interests of elites and industry are over-represented in Washington. Ordinary Americans understandably feel they lack a seat at the table. In an administration dominated by revolving door appointees, policies challenging powerful interests face a harder road to enactment, and government priorities tend towards those of well-connected elites. Adherence to this status quo has contributed to the perception that all politicians, no matter their party, are corrupt and actively working to uphold a system that is rigged against regular people.

There should no longer be any dispute: this is a failed model. We need a new vision for executive branch leadership, one that takes building and maintaining public trust as a central imperative. Whichever candidate wins the presidential election this fall must overcome their party’s recent past and build public trust through their choice of appointees. There should be no room for doubt that their selections serve no interest but the public’s.

That must start with the candidate’s choice of stewards for the presidential transition. Too often, the teams crafting incoming administrations have been stacked with figures who work for corporate interests, undermining the frameworks that make way for collective prosperity. Unsurprisingly, the resultant administrations overwhelmingly reflect this inherent conflict of interest.

Past administrations have relied on compliance and mitigation regimes to manage these conflicts of interest, producing a web of disclosures, ethics agreements, and recusals. Even when perfectly applied, these strategies leave gaping loopholes that allow former members of industry to materially advance the interests of former and future employers. While these scenarios might not legally qualify as conflicts of interest under our overly lenient laws, the public is not fooled by the supposed propriety of these relationships.

The next president must, therefore, move from appointing officials who must manage their conflicts of interest to elevating conflict free individuals into senior roles in their transition and in their administration. As such, we call upon the winner of the next presidential election to commit not to appoint any individual into a senior policy role with responsibility over an industry in which, within the last five years, they held a senior position or from which they were compensated in a consulting or advisory capacity.

John House is a retired attorney from Los Angeles, CA who has made his home in Santa Fe since 2007. He is President of RepresentUs New Mexico.

Disclosing and Limiting Political Contributions and Expenditures by Businesses

By David Burling


Photo by Chris Barbalis on Unsplash

Several advocacy groups are seeking to persuade companies of all sizes to limit their political contributions and disclose their political expenditures. Of these, some are urging these companies to adopt shareholder resolutions supporting these positions. There is even a rating system for governance of major corporations that includes, as one factor, how they handle political contributions. For example, The Center for Political Accountability publishes an annual report called the CPA-Zicklin Index, which includes that information. It is part of a coalition that since 2003 has pushed for each company to develop and disclose guidelines on political contributions directly and through trade associations and other tax-exempt organizations used for political purposes. Part of the requested disclosure includes the identities of the corporate officers making the decisions and the amounts donated. Other organizations involved in this arena include The Public Interest Research Group, Public Citizen, and, more recently, American Promise, one of the organizations RUNM works closely with.

American Promise has organized a group to create a well-defined set of resolutions for corporations to adopt, including such fundamental goals as improving the wellbeing of the community, the workers and shareholders over the long term and no longer making profitability the sole purpose of the corporation’s existence. American Promise calls this its Corporate Statement Project.

American Promise also promotes an initiative to get business professionals to sign an Individual Statement of Principles in support of these broader and more inclusive corporate goals. These principles would include commitments to full disclosure of political contributions and expenditures. They would also commit the companies to support a well-functioning and representative government.

Similarly, the Shareholder Commons is another organization involved with American Promise on this project and working on its own set of “guardrails” for corporations to adopt, which includes support for a constitutional amendment to overturn the landmark U.S. Supreme Court Citizens United decision, which opened the door to “dark money” donations – that is, donations from certain political action committees that do not have to be disclosed.

These efforts will probably prove challenging, and many of them will probably be directed at large shareholder groups such as pension funds and mutual fund companies. Unfortunately, as the New York  Times recently disclosed (https://www.nytimes.com/2020/07/21/business/dealbook/corporate-political-donations.html), some companies often profess values that are then undercut by contributions to parties and candidates who don’t support those values.

The next step is to develop and implement guidelines acceptable to corporations that will create a more socially beneficial outcome while helping their corporate bottom line.

David Burling is a retired lawyer and a member of RepresentUs New Mexico. He lives in Lamy, New Mexico.

 

The Biggest Dark Money Case Since CREW v. FEC

By John House


Photo by Pepi Stojanovski on Unsplash

Without a doubt, the most important Dark Money case to come along since CREW v. FEC is Lieu v. FEC. CREW v. FEC challenged the Federal Election Commission’s own interpretation of its rule regarding disclosure of expenditures. The court’s decision resulted eventually in the current rule, which requires persons other than political committees who make political expenditures greater than $250/year to report to the commission. Lieu is of far greater import, challenging the 2010 SpeechNow.org v. FEC, which enabled the creation of Super PACs. Please read this July 22 press release by Free Speech for People, which filed the appeal, for more.

Press Release

WASHINGTON, D.C. (July 22, 2020) – Sixteen states, led by Washington State, today filed an amicus brief before the Supreme Court, urging the nation’s highest court to review a landmark case seeking to end super PACs in U.S. elections. Six U.S. Senators, led by Senator Sheldon Whitehouse of Rhode Island, filed a separate brief in support of Supreme Court review of the case. The case, Lieu v. Federal Election Commission, brought on behalf of members of Congress and congressional candidates, directly challenges the 2010 federal appeals court ruling in SpeechNow.org v.FEC. That decision, which struck down a longstanding contribution limit in the Federal Election Campaign Act, led directly to the creation of super PACs.

The states joining the amicus brief include Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Mexico, Pennsylvania, Rhode Island, Vermont, Virginia, and Washington State, as well as the District of Columbia.

The U.S. Senators joining the amicus brief include Senator Richard Blumenthal of Connecticut, Senator Mazie Hirono of Hawaii, Senator Patrick Leahy of Vermont, Senator Thomas Udall of New Mexico, Senator Chris Van Hollen of Maryland, and Senator Sheldon Whitehouse of Rhode Island.

Other parties filing amicus briefs today in support of Supreme Court review of this case include former FEC Commissioner Ann Ravel; election law scholars Abby Wood, Richard Briffault, Rebecca Brown, Yasmin Dawood, Michael Gilbert, Burt Neuborne, Bertrall Ross, Douglas Spencer, and Franita Tolson; political scientists Stephen Weissman, Robert Boatright, Anne Baker, Diana Dwyre, Anthony Corrado, John Green, and Clyde Wilcox; and appearance-of-corruption researchers Christopher Robertson, Kelly Bergstrand, and D. Alexander Winkelman.

The national public interest organization Free Speech For People, which launched Lieu v. Federal Election Commission as lead counsel for the plaintiffs, is serving as co-counsel in the petition for Supreme Court review, alongside a bipartisan group of distinguished legal scholars, which includes Professor Jeffrey Fisher (Stanford Law School; lead counsel for the Supreme Court phase of the litigation), Professor Laurence Tribe (Harvard Law School), Professor Albert Alschuler (University of Chicago Law School, emeritus), and Professor Richard Painter (University of Minnesota Law School and former chief ethics counsel to President George W. Bush). The legal team also includes the law firm of Foster Garvey.

Lieu v. Federal Election Commission was filed in federal district court in Washington, D.C., in November 2016 on behalf of a bipartisan coalition of members of Congress and 2016 congressional candidates led by Representative Ted Lieu (D-CA-33), Senator Jeff Merkley (D-OR), and the late Representative Walter Jones (R-NC-3). The lawsuit seeks the reversal of the March 2010 federal appeals court ruling in SpeechNow.org v.. FEC. In that decision, the U.S. Court of Appeals for the D.C. Circuit ruled that the federal law limiting contributions to political action committees to $5,000 per person per year could not, under the Constitution, apply to political committees that promised to make only “independent” expenditures, thus unleashing super PACs. Contrary to a common misconception, however, this result was not required by the Supreme Court’s earlier ruling in Citizens United v. FEC, and the Supreme Court can reverse the D.C. Circuit’s decision in SpeechNow without revisiting Citizens United.

SpeechNow has ushered in a decade of unprecedented contributions to Super PACs from a small pool of ultra-wealthy donors,” write the state attorneys general in the amicus brief spearheaded by Washington State Attorney General Bob Ferguson. “Super PACs have, in turn, spent billions of dollars in federal, state, and local elections. This torrent of undisclosed money has corroded public confidence in elected officials representing the states in Congress, the election process, and the very importance of voting, leading many Americans to believe that their individual votes cannot matter in the face of such massive contributions from a powerful few.”

“A tsunami of special interest money is drowning out Americans’ voices and corrupting our democracy,” says Senator Whitehouse. “At the center of the tidal wave are Super PACs through which corporations and billionaires run unlimited money to push their political agendas. With the ability to donate unlimited money comes the ability to threaten unlimited donations, allowing big special interests to control politics without ever donating a cent. That is a clear recipe for corruption. It’s time for the Supreme Court to uphold sensible contribution limits and overturn SpeechNow.”

“The Supreme Court has long said that money in politics could be regulated when it appears to be quid pro quo corruption. Our research with a broad panel of thousands of Americans shows that they see large contributions to super PACs to be exactly that,” says Boston University School of Law Professor Christopher Robinson. Robinson, Bergstrand, and Winkelman have conducted empirical research showing that large contributions to super PACs create the appearance of corruption, which the federal appeals court in SpeechNow maintained they could not.

“Since 2010, the assumptions on which SpeechNow relied have been proven incorrect. As a result, SpeechNow created a campaign finance system that Congress did not enact and which has made the majority of Americans believe is corrupt,” says former FEC Commissioner Ann Ravel.

“Super PACs accepting unlimited contributions spend nearly one in every four federal election campaign dollars, concentrated on the most competitive races,” says political scientist Stephen R. Weissman. “They enable million-dollar, even tens of millions of dollars, donors to support organizations marketing and conducting themselves as extensions of candidates’ and parties’ campaigns — regardless of federal contribution limits applying to those campaigns. Thus, Super PACs undermine the contribution limits that are the very basis of the federal campaign finance system.”

“In keeping with the Supreme Court’s typical practice, the Justices of that Court – not judges on a lower court – should decide the enormously consequential constitution question whether Congress has the power to regulate contributions to Super PACs,” says Professor Jeffrey Fisher, Co-Director of the Stanford Supreme Court Litigation Clinic and lead counsel on the petition for review. “The Court’s attention is all the more imperative here because the court of appeals has so plainly overread Citizens United. That decision established a new rule regarding corporate campaign expenditures, but it did not alter the Court’s long-standing jurisprudence allowing Congress to regulate contributions to candidates and closely related entities. We’re grateful for the groundswell of amicus support.”

“Super PACs weren’t created by Congress or the U.S. Supreme Court. They were created by a lower court decision, based on faulty assumptions, that has never been reviewed or revisited,” says Ron Fein, Legal Director of Free Speech For People. “It’s been a decade since the D.C. Circuit unleashed super PACs on our democracy, and it’s clear that the experiment has failed. We look forward to giving the Supreme Court the opportunity to reverse the SpeechNow decision so we can rebuild our democracy. We’re grateful for the support of these friends of the Court who recognize the importance of this case.”

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To read the amicus briefs, and for more information about the case, visit: freespeechforpeople.org/lieu.

John House is a retired attorney from Los Angeles, CA, who moved to Santa Fe, New Mexico in 2007. He is President of RepresentUs New Mexico

 

Notes from a New Member

By Michael Kelley


Photo by Maddy Baker on Unsplash

It wasn’t immediately obvious to me five years ago when my partner and I escaped the heat and humidity of Memphis to spend our summers in Santa Fe. Gradually, however, I began to realize that this is more than a scenic, high-altitude home for artists and other creatives. The place is a hotbed of political activism, mostly of the progressive kind. I had never seen the level of civic involvement that the city had to offer – a group for every cause.

After we decided to make Santa Fe our permanent home last spring, I began looking for ways in which I could pitch in. First, it was attending weekly meetings of Indivisible Santa Fe, partly because they were happening a couple of blocks from our home but mostly because I had found a room full of people who, like me, were not happy with the direction the country had taken and were doing things about it.

Eventually I stumbled across RepresentUs New Mexico, and I was hooked on this place, too.

One can search with the tenacity of a Forrest Fenn treasure seeker and not find a more worthy vision than a “well-informed, engaged citizenry and government that truly represents and serves the best interests of all the people.” What better mission is there than to “promote ethical government that adheres to the Constitution, respects the rule of law and serves the public good”?

The goals adopted by RepresentUs New Mexico seemed to have been written to match my own long-held wish list: campaign finance reform, public financing of campaigns, lobbying reform, the elimination of gerrymandering by whatever party happened to be in the majority of state legislatures, making sure that every vote counts in fairly conducted elections. Many of these reforms I had campaigned for as an editorial writer and columnist for a daily newspaper for more than a decade. (Without much success, I’m afraid. That newspaper is in the South.)

And I was glad to see that the National Popular Vote – my personal favorite among progressive reforms – was among the initiatives supported by RepresentUs New Mexico. Imagine if the Electoral College had been tossed when it started smelling like a bucket of dead worms, we could be looking back fondly on the environmental protection reforms pushed through by President Al Gore, assessing Hillary Clinton’s performance in the nation’s highest office and deciding whether to support her for another term.

Instead, we have plunged painfully into a truly dark political age in which the European Union has banned U.S. citizens from visiting due to the coronavirus situation here, efforts to abolish the Affordable Care Act persist, and relationships with American’s allies abroad continue to deteriorate.

As I type these words, stormtroopers in unmarked riot gear, driving unmarked cars, are snatching citizens off the streets like some Salvadoran death squad and punishing peaceful protesters with clouds of tear gas, batons and “non-lethal” weaponry. Something’s happening here. The call to reform government is becoming more and more urgent.

Would a vibrant turnout for the election on Nov. 2 turn the goals of RepresentUs New Mexico become realities? There are no guarantees, but accomplishment of those basic, fundamental goals, I believe, would preface solutions to many of our pressing problems – from militarization of the police to constant threats to women’s reproductive rights to environmental deterioration, global warming and beyond. Perhaps we might even be motivated to objectively consider universal health care. A national health care system could become more than a pipe dream.

Basically, what I’m asking for is a perfection of our democracy. There have been many advances in the past, but lots of work remains to be done.

Michael Kelley is a retired journalist and new member of RepresentUs New Mexico. He and his partner have made their new home in Santa Fe.

What We Are Currently Doing About Gerrymandering

by John House

RepresentUs New Mexico is part of a 19-organization coalition led by Fair Districts New Mexico that is pushing for redistricting reform in New Mexico. Member organizations include the League of Women Voters New Mexico, Common Cause New Mexico, Indivisible Santa Fe, Retake Our Democracy and New Mexico First. In the 2020 short legislative session, the coalition supported HM 8, sponsored by Rep. Daymon Ely (D-Albuquerque), which would have created a redistricting task force to study and propose rules and regulations to modernize and depoliticize the redistricting process. Although the measure failed, the coalition was reassured by House Speaker Brian Egolf (D-Dist. 23) that he would support the establishment of a redistricting task force this year by the Legislative Council. When that failed to materialize, the Thornburg Foundation of Santa Fe, New Mexico, asked and provided the funding to New Mexico First to create the redistricting task force, undertake the study and provide recommendations. That work has just begun. Upon completion of the work of the task force, RepresentUs New Mexico members and volunteers will campaign for the legislature to adopt proper criteria that will not only comply with the U.S. Constitution and other applicable law but also eliminate the drawing of district lines to purposefully, or unintentionally, favor a political party or incumbent candidate.

On Tuesday evening, February 22, Retake our Democracy hosted a Zoom webinar that included a panel composed of Dick Mason and Kathleen Burke of Fair Districts New Mexico and state Senators Gerry Ortiz y Pino (D-Dist.12) and Mike Moores (R-Dist. 21). I found the event very informative and interesting, as I’m sure those of you who attended did too. To me, the most insightful revelation about the political aspect of redistricting in the New Mexico legislature was provided by Republican Senator Matt Moores. Moores said that, in the NM legislature, the gerrymandering of districts was not so much a Democratic-vs.-Republican struggle as the effort of those with the most power in the legislature seeking to influence the redistricting process to preserve and enhance their own power and those of their caucuses. Regardless, the undemocratic result is the same—the topsy-turvy effect of our elected officials choosing their voters rather than the voters choosing their elected officials.

John House is a retired attorney from Los Angeles, CA, who moved to Santa Fe in 2007. He is President of RepresentUs New Mexico.