Reclaim Democracy!

Whistleblowers Risking It All in Defiance of the Security State

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whistleblowers are under attack

By Dave Wheelock
May 28, 2013

“If liberty means anything at all, it means the right to tell people what they do not want to hear.”  -George Orwell

There has been a steady stream of so-called whistleblowers since 1863, when the United States False Claims Act was enacted to protect the public interest from fraud by corporate government contractors during the Civil War. The sports-oriented term “whistleblower” was coined in the 1970s by civic activist Ralph Nader, expressly to combat the negative connotations terms like “informer” or “snitch” lend to those who won’t go with the flow of corruption. Today, few conscious citizens would argue against the need for whistleblowers, and the need to protect them from the many forms of reprisals that often come their way.

Barack Obama’s election in 2008 gave hope of reform from the dark days of the Bush II presidency, when W threatened to veto enhanced whistleblower legislation due to, you guessed it, “concerns for national security.” And indeed Obama came in talking a good game: “Often the best source of information about waste, fraud, and abuse in government is an existing government employee committed to public integrity and willing to speak out,” the president-elect cooed to his base. “Such acts of courage and patriotism, which can sometimes save lives and often save taxpayer dollars, should be encouraged rather than stifled.”

Ironically, Obama has instead attained notoriety through a heightened rate of whistleblower persecution. According to the April 15, 2013 edition of The Nation magazine, “Since 2009, it (the Obama administration) has employed the World War One-era Espionage Act a record six times to prosecute government officials suspected of leaking classified information.” Oops, make that seven, with the charges filed in April against Navy linguist James Hitselberger. That is more than twice the total number of Espionage Act indictments filed under all other presidents combined. Especially troubling is that these charges – carrying “enemy of the state” consequences of decades in prison – have been brought not against dangerous spies as the Act originally intended, but against government employees for disclosing official misdeeds to journalists. Not only are the messengers being shot but also journalists responsible for relaying vital information about wrongdoing to the public are being effectively iced as their sources fearfully dry up.

In the war on whistleblowers, we end up living in ignorance of what our government does overseas (in our names) or domestically (with our names). Since the attacks of 9/11 and the invasion of Iraq, a veil of secrecy has fallen over the “defense” needs of the country, including: steadily increased drone attacks; targeted killings at presidential whim; indefinite detentions and torture; the developing field of cyber-warfare, and warrantless wiretapping. Lest we forget, more than ten years into the War on Terror, we citizens still have no idea to what extent our government spies on us.

In Bluffdale, Utah – a town the size of Socorro, New Mexico – the National Security Agency, responsible for the collection and analysis of foreign communications, is now building the one million square-foot Utah Data Center. According to James Bamford, who published his first of five books about the NSA in 1982, the data center will be able to eavesdrop on “all forms of communication, including the complete contents of private emails, cell phone calls, and Internet searches, as well as all sorts of personal data trails—parking receipts, travel itineraries, bookstore purchases, and other digital ‘pocket litter’.” But the exact mission of the Utah Data Center remains secret. (Bamford has been threatened with prosecution for writing about the National Security Administration.)

Today former high-ranking NSA officials Kirk Wiebe, William Binney, Ed Loomis, and Thomas A. Drake, are sounding the alarm about a rogue national security state operating at wasteful expense and without effective oversight. The so-called NSA Four are all victims of years of government harassment designed to punish them for reporting massive waste and citizen privacy issues connected to a subsequently aborted intelligence gathering program called Trailblazer. In 2010 Drake became an Espionage Act defendant and in 2011 he was cleared of those charges, with the judge calling his prosecution “unconscionable.” What is also unconscionable is that after all the harassment whistleblowers have suffered at the hands of the Justice Department, the real perpetrators – of fraud, corruption, waste, and probable violations of Fourth Amendment privacy rights – skip away scot free.

We are becoming, or have become, the kind of society we Americans used to scoff at – in which the government knows everything about the people’s activities but the people know nothing about those of the government. Since the National Security Agency insists on absolute secrecy, starting with who gets to decide what’s secret, we the people need to educate ourselves. The Government Accountability Project has been instrumental in advising and providing legal defense for whistleblowers. The GAP website offers information on whistleblower protection and on a new film by Robert Greenwald entitled War On Whistleblowers: Free Speech and the Security State.

Dave Wheelock is a member of the Oneida Nation who coaches rugby and directs collegiate sports at the New Mexico Institute of Mining and Technology. Contact him at davewheelock@yahoo.com.

image courtesy jhmostyn

Propaganda and the Voter ID Campaign

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By Lorraine Minnite 
First Published September, 2011 

Editor’s Note: Orchestrated, but unfounded complaints of widespread “voter fraud’ have duped citizens of  many states into accepting needless and harmful barriers to voting. Here, Rutgers University professor Lorraine Minnite, author of “The Myth of Voter Fraud,” debunks the misinformation spread by Hans von Spakovsky, a leading perpetrator of voting fraud myths,

Propaganda is playing a crucial role in the fast-moving campaign to enact more onerous voter identification (ID) laws in the states.  I want to show how the discussions of the issue of voter photo ID exhibit some of the salient features of political propaganda to obscure the real rationale for these laws: partisan political advantage.

As an example, consider the puzzling re-emergence of a sordid tale of election shenanigans from some three decades ago.  The scene is a series of Democratic primary races, and the locale is Brooklyn, New York, circa the 1970s and early 1980s.  In a 2008 Heritage Foundation legal memo on the case and countless other reports , op-eds , blog postings, and government testimony advocating for stricter voter ID laws, Hans von Spakovsky, the controversial former Georgia GOP county leader and one-time U.S. Justice Department official, has called this story “the best-documented case of widespread and continuing voter identity or impersonation fraud” in “living memory.”  It stands as a much-cited rebuttal to the critics who reject claims of an epidemic of voter fraud as unsupported by evidence.

Von Spakovsky’s source for this story is a 1984 Brooklyn grand jury report , and his abuse of this report is striking.  He takes historical events and twists them so that they point to the wrong set of villains.  The grand jury investigated an egregious case of political corruption committed by politicians and election workers, but he says the case is about voter impersonation fraud.  The findings and recommendations of the grand jury were sensible, but von Spakovsky distorts them to promote the call for more restrictive voter ID rules.  The grand jury did not come to these conclusions.

Von Spakovsky’s Brooklyn tale plays a role in the expansive propaganda campaign promoted by Republican Party operatives to stoke the anger of the party’s rightwing base (via the code word “fraud”), and to soften up a mostly disinterested public skeptical of backward-moving restrictions on the franchise – like the requirement to show a current government-issued ID to vote.  As I’ve argued elsewhere, central to this campaign is the myth of voter fraud .

Propaganda is a communications strategy that relies on specific rhetorical devices and methods of presenting information to persuade and influence the opinions of others in order to control their actions.  Propagandists distort the truth through selective storytelling, logical fallacies, unwarranted extrapolation, and repetition of false conclusions, providing a basis for hidden political agendas and fear-mongering.  In the contemporary discussions about voter ID, what could be more misleading than to go back 27 years to obscure events in Brooklyn documented in an almost impossible to find grand jury report?  Unknowing readers could think von Spakovsky is plucking the example out of a vast trove of evidence when he’s not.

Selective Storytelling
The 1984 Brooklyn grand jury report that is the source of von Spakovsky’s 2008 Heritage Foundation memo documents the results of an investigation by the Brooklyn D.A. into a pattern of corruption by a de-throned state senator named Vander Beatty and his allies within the ranks of the Kings County Democratic Party organization.

The Grand Jury found that over a period of 14 years, a group of people committed blatant voter registration and voting fraud to defeat opponents who challenged the status quo control of electoral politics in the borough.  The struggle reflected a conflict between an established black political class, supported by an older white ethnic-dominated political machine, and a black reform movement emerging from the public school-based battles for community control in Central Brooklyn.

The fraud was flagrant and could not have been committed without the assistance of elections officials who knowingly accepted bogus registration cards, violated state laws in the handling of registration cards, and attempted to conceal forged registration documents.

The culminating event occurred when the machine-backed Beatty lost a congressional primary for retiring Shirley Chisholm’s U.S. House seat to the reformer Major Owens.  Beatty’s gang snuck into the Board of Elections, hid in a bathroom ceiling until the employees went home for the day, and then tampered with voter registration cards to manufacture the appearance of fraud on the part of the Owens campaign.  The fraudulent fraud discovered, Beatty then used the forged evidence to charge Owens with fraud and to demand that the results of the election be thrown out.  He almost got away with this scandalous ploy.

Logical Fallacies
Von Spakovsky tells a disembodied version of this story and demonstrates a complete lack of understanding of the larger context that framed the corruption.  Moreover, to distract the reader from the fact that these events occurred a quarter-century ago, he ignores how rules and procedures have changed since 1984 (even in Brooklyn!).  von Spakovsky exploits the ambiguity of the word “fraud” to commit a major logical fallacy.  He claims this 27-year old story of internecine political warfare among Brooklyn Democrats presents the best-documented case of widespread and continuing voter identity or impersonation fraud that could be prevented with voter photo ID.  But since his premise is wrong, so is his conclusion.

The Grand Jury’s recommendations barely touched on voter ID.  Grand Jury members were sensitive to the danger of their report being used to justify the tightening up of access to registration and voting.  The report flatly states, “The Grand Jury is not advocating that existing electoral rights be restricted or unduly encumbered, but that safeguards be created to protect those rights from being undermined by fraud” (p. 3).

For the Grand Jury, since the main problem was document tampering, forgery, and corrupt politicians plotting conspiracies to rig elections, these safeguards largely took the form of a plea to improve administrative procedures, address under-staffing and training of Board of Elections personnel, and especially, to make changes to way the Board of Elections secured its facilities.  Von Spakovsky conveniently does not mention these recommendations, despite the fact that a discussion about the use of closed circuit televisions cameras, security mirrors, and alarm systems “to protect against illegal use of or entry into the facilities” (p. 26) takes up several pages of the report.

In addition, the grand jury called on the Governor and the State Legislature to “promptly study the problems of election fraud identified in this report…and evaluate various proposals and strike a balance between solving the problem of election fraud and continuing the recent gains in facilitating unimpeded access to the ballot box” (p. 21).  One proposal the grand jury thought worthy of study was to require identification from voters at the time of registration (which New York now does) and voting (which New York does not do).  More importantly, however, was the grand jury’s own recommendation to require identification of persons seeking admission to the Board of Elections .

Von Spakovsky commits another logical fallacy in setting up this story to justify his preference for stricter ID laws.  He argues that the reason why there is so little evidence of voter impersonation fraud (and, perhaps why we have to resort to an example from Brooklyn in the 1970s) is because, “Election officials cannot discover an impersonation if they are denied the very tool needed to detect it – an identification requirement” (p. 1).  But the ID requirement cannot both prevent fraud and make it detectable.  Advocates of government-issued photo voter ID, including von Spakovsky, have never marshaled reliable evidence of contemporary voter impersonation fraud.  If we have no evidence of voter impersonation fraud before the enactment of voter ID laws, and no evidence of voter impersonation fraud after the enactment of voter ID laws, how is it possible that voter ID laws are both preventing voter fraud and making it more detectable?  This is circular reasoning – if voter ID eliminates voter impersonation fraud, which is hard to do since there is virtually no evidence that it actually exists, how then does it make fraud detectable?

Unwarranted Extrapolation
Von Spakovsky states that, “Even though it led to no indictments, the New York investigation still serves a valuable purpose.  Most clearly, it demonstrates that voter impersonation is a real problem and one that is nearly impossible for election officials to detect given the weak tools usually at their disposal” (p. 7).

This is not correct.  A 27-year old grand jury report does not demonstrate that voter impersonation is a real problem today.  Nor does it “provide good reason to believe that [the…] conspiracy…could not have occurred if voters had been required to present photo identification when they voted” (p. 7).  Von Spakovsky incorrectly assumes that people this intent on stealing elections could be thwarted by a photo ID requirement (see this recent Washington Post article for the growing ease with which “untold thousands” of flawless fraudulent drivers licenses have flowed into the U.S. recently from a single source in China).

Von Spakovsky states that, “More recent cases provide evidence of what may be a wider problem that is very difficult to detect in jurisdictions that do not require voter identification” (p. 5).

What is that evidence?  Not much.  Von Spakovsky tells us that a college professor testified in 2006 before the U.S. Commission on Civil Rights that he was not able to vote once because someone else voted in his name.  The professor wasn’t able to find out why this occurred, what error was made, “and the polling place,” he said, “didn’t keep any record of it” (p. 7).  In 2007, U.S. Justice Department litigation against Noxubee, Mississippi Democratic Party leader, Ike Brown, unearthed a former deputy sheriff who said he saw Brown “outside the door of the precinct talking to a young black lady…and heard him tell her to go in there and vote, to use any name, and that no one was going to say anything” (p. 7-8).  Von Spakovsky’s third piece of evidence comes from a 2007 city council run-off election in Hoboken, New Jersey, where a homeless man living in a shelter said he was paid $10 to vote for a specific person.  No vote was actually cast because an alert election challenger suspected something fishy was afoot and physically chased the man away, calling the police who apprehended him.  Hoboken has non-partisan local elections, but the shenanigans appear to have been the product of yet another factional dispute within a local Democratic Party organization.

This is hardly evidence upon which one can erect a persuasive claim of widespread if undetectable fraud.

Fear-mongering
Von Spakovsky’s re-telling of a story about political corruption among Brooklyn Democrats of yore is peppered with references to “widespread impersonation fraud” and “a vote-fraud conspiracy that had been successfully carried out without detection for 14 years,” in which “thousands of fraudulent votes went undetected for 14 years.”  In fact, while egregious, the Brooklyn grand jury did not find that the corruption unveiled by the investigation was widespread in the way von Spakovsky implies. Their report states that the corruption was committed by “ a group of individuals…in a limited geographic area of Kings County from 1968 to 1982” (emphasis added, see p. 1-2).

No matter.  Propaganda does not hew close to the facts.  It seeks to manipulate emotion by selectively filtering and framing those facts.  It draws on myth and symbols where facts are inconvenient.  Even old Boss Tweed as a precursor to Ike Brown gets a mention in von Spakovsky’s memo.  And although “illegal aliens” never made an appearance in the Brooklyn saga, von Spakovsky throws them in as a looming threat to free elections.  He implies they are somehow eager to vote and asserts that this nefarious conduct can be thwarted with government-issued ID (“…requiring a government-issued photo ID can prevent illegal aliens from voting,” p. 8).

Repetition
Having carefully framed a story of petty political corruption from long ago as a cautionary tale of great relevance for our democracy today – and drawn the wrong conclusions – von Spakovsky distracts the reader from the big problems with his argument by repetitively asserting a link between his vastly exaggerated characterization of the problem of voter fraud and his preferred solution, restrictive voter photo ID requirements.

For example, on the first page of his Heritage Foundation memo, he lists “Talking Points,” one of which says, “Voter-ID requirements directly target in-person voting fraud.  An ID requirement would have defeated all the fraudulent practices employed by the New York vote-fraud conspiracy,” which isn’t true.

Referring to litigation that enjoined Ohio from implementing certain restrictions on voter registration drives (Project Vote v. Blackwell), he states, “Even if the court rulings were legally correct (a questionable conclusion), that is all the more reasons for a state to correct for potential fraud by requiring some form of reasonable voter ID at the polls,” (p. 7) as if states currently have no protections against potential fraud.

Two paragraphs later, von Spakovsky sums up the Brooklyn case:  “…the investigation provides good reason to believe that this 14-year-long conspiracy to submit thousands (if not tens of thousands) of fraudulent votes in New York City could not have occurred if voters had been required to present photo identification when they voted,” (p. 7) a claim that is simply unsupported by the case he presents.

Finally, on the last page of his memo, von Spakovsky makes this false claim: “In states without identification requirements, election officials have no way to prevent bogus votes from being cast by unscrupulous individuals based on fictitious voter registrations, by impersonators, or by non-citizens who are registered to vote – another growing problem.”  For the statement to be true, states that do not require ID documents also would have no rules and checks in place to guard against fraudulent registrations, not the case in any state.

Conclusion
In the age of the Internet, the expanding use of propaganda techniques in American politics is one of the most important, if overlooked, developments of the early 21 st century.  Hans von Spakovsky’s repeated reference to an obscure 27-year old Brooklyn grand jury report as the best evidence of the contemporary scourge of voter impersonation fraud is a kind of fraud itself.  Instead of evidence of fraud, he gives us evidence of the propaganda being used to distort the truth about fraud.  As good as it is, however, the propaganda about voter fraud can’t conceal everything.  The lack of concern among voter ID proponents like von Spakovsky for the likely ill effects of these new laws on the electoral participation of vulnerable citizens lacking the requisite ID  makes the ugly politics of the ongoing voter ID campaign all the more apparent.

Rutgers University professor Lorraine Minnite is the author of The Myth of Voter Fraud.

Voter ID laws are just one of  40 Ways to Disenfranchise or Suppress Voters

© 2011 Lorraine Minnite

Proposed Constitutional Amendments

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Amendments to revoke corporate constitutional “rights,” reverse Buckley v. Valeo, and establish a right to vote.

Editors’ Note: We believe a proactive and ambitious platform is needed to reverse the decline of democracy in America and reverse the Supreme Court’s anti-democratic interpretation of our Constitution. Since soon after our inception more than a decade ago, we have promoted amending our Constitution to enshrine principles too important to be left to the ebb and flow of eelctoral politics and judicial nominations.

Since the US Supreme Court’s outrageous ruling in Citizens United v FEC, we’ve been pleased to see rapidly increasing agreement on the need for constitutional change. Two of these three proposed Amendments to the U.S. Constitution (not necessarily in this language) now are being promoted by the MoveToAmend, coalition (in which we participate) which emerged in January of 2010. We invite your feedback on this approach and individual amendments.

This article offers interesting history on each of the prior Amendments and summarizes the duration and nature of the campaigns that drove each Amendment.

An Amendment to Preclude Corporations from Claiming Bill of Rights Protections

SECTION 1. The U.S. Constitution protects only the rights of living human beings.

SECTION 2. Corporations and other institutions granted the privilege to exist shall be subordinate to any and all laws enacted by citizens and their elected governments.

SECTION 3. Corporations and other for-profit institutions are prohibited from attempting to influence the outcome of elections, legislation or government policy through the use of aggregate resources or by rewarding or repaying employees or directors to exert such influence.

SECTION 4. Congress shall have power to implement this article by appropriate legislation.

More on why we need to revoke corporate constitutional privileges (a.k.a., corporate personhood)

An Amendment to Reverse Buckley v. Valeo and Dominance of Wealth in Electoral Politics

SECTION 1. For the purposes of providing all citizens, regardless of wealth, a more equal opportunity to influence elections, public policy and run for public office; of furthering the principle of “one person, one vote” and preserving a participatory and democratic republic; as well as the purpose of limiting corruption and the appearance of corruption, we the people declare the unlimited use of money to influence elections incompatible with the principle of equal protection established under the Fourteenth Amendment.

SECTION 2. The Congress shall have the power to set limits on contributions and expenditures made to influence the outcome of any federal election.

SECTION 3. Each state shall have the power to set limits on contributions and expenditures made to influence the outcome of elections in that state.

SECTION 4. The power of each state to set limits on contributions and expenditures shall extend to all elections in that state, including initiative and referendum elections, as well as the power to lower any federal limits for the election of members of Congress to represent the people of that state.

SECTION 5. Congress shall have power to implement and enforce this article by appropriate legislation.

Possible additions/strengthening of Section 1:

  • Equal protection under the law shall not be abridged or denied on account of wealth, religion, sex, or race.
  • Include ban on corporate spending within this Amendment, rather than in separate one (see below).

Thanks to Derek Cressman for drafting this Amendment

See also It’s Time to Overrule the Supreme Court and Eliminating Corporate Power Overballot Questions.

An Amendment to Create an Affirmative Right to Vote

If it seems strange to you that we are calling for an amendment to establish something you thought we already had, you may want to read this article first. Below is the language of House Joint Resolution 28, which was introduced in mutliple sessions of Congress by Rep. Jesse Jackson Jr. of Illinois (we differ on some strategic choices).

Proposing an amendment to the Constitution of the United States regarding the right to vote.

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years after the date of its submission for ratification:

Section 1. All citizens of the United States who are eighteen years of age or older shall have the right to vote in any public election held in the jurisdiction in which the citizen resides. The right to vote shall not be denied or abridged by the United States, any State, or any other public or private person or entity, except that the United States or any State may establish regulations narrowly tailored to produce efficient and honest elections.

Section 2. Each State shall administer public elections in the State in accordance with election performance standards established by the Congress. The Congress shall reconsider such election performance standards at least once every four years to determine if higher standards should be established to reflect improvements in methods and practices regarding the administration of elections.

Section 3. Each State shall provide any eligible voter the opportunity to register and vote on the day of any public election.

Section 4. The Congress shall have power to enforce and implement this article by appropriate legislation.

Resources on Establishing a Right to Vote

Eliminating Corporate Power over Ballot Initiatives

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The Problem:

Corporate executives often wield their Supreme Court-created power to defeat citizen ballot initiatives. Increasingly, corporations and wealthy individuals are putting measures on the ballot that advance their own self-interest. While it is far easier for corporations to defeat citizen initiatives than to pass their own, just the threat of running a costly initiative campaign can be sufficient to alter decisions by local or state officials.

In 2018, 48 ballot measures raised more than $5 million in spending, and the side that spent more won 42 of these. In the 10 most expensive ballot measures, the side that spent more won each race. (Source: Ballot Initiative Strategy Center, newer data was not compiled as of our last update)

  • In First National Bank of Boston v. Bellotti (1978) the U.S. Supreme Court struck down a Massachusetts law prohibiting corporate spending to influence state ballot initiatives (on First Amendment grounds). Though the opinion resorted to “listeners’ rights” arguments that protect free speech and not the corporate “speaker,” the effect was to create a presumed corporate right to influence ballot questions. The sharp dissent of conservative Justice William Rehnquist is key reading.
  • In Austin v. Michigan Chamber of Commerce (1990) the Court held that there was no First Amendment violation in requiring a corporation to set up segregated funds (i.e., a Political Action Committee) for spending on candidate campaigns. So, while executives and employees could contribute to a corporation-affiliated PAC, the corporation could not write company checks directly to a candidate’s campaign.
  • Following the Austin ruling’s logic, in 1996 Montana citizens drafted and passed Initiative 125, which banned direct corporate contributions to initiative campaigns. The law was challenged by the Montana Chamber of Commerce and others as unconstitutional. Deciding Bellotti, rather than Austin was the guiding precedent, the Ninth Circuit Court of Appeals took Bellotti even further in striking down I-125 (Montana Chamber, et. al. v. Argenbright, 2000).
  • After Bellotti, a series of Supreme Court decisions showed increased deference to legislative campaign contribution limits, leading some scholars to believe that a reversal of Bellotti might occur. However, since John Roberts was selected as Chief Justice, the Court seems to have tacked sharply against limiting corporate privileges, as we see with the Citizens United ruling.

Our Objectives:

Reclaim Democracy works to create widespread public awareness of the damage done to democracy by granting corporations the right to influence initiatives and referenda. We seek to re-frame local ballot measure battles and coordinate a legal strategy to erode corporate political speech privileges via local and state campaigns. Our ultimate goal is to build support to overturn the Bellotti ruling at the Supreme Court or via amending the Constitution.

Recent Examples and Opportunities:

  • In March of 2021, Utah State legislators advanced a bill to hinder the ability of citizens to bring initiatives to the ballot. An out-of-state, dark money group worked side-by-side with a legislator on the bill, attending committee hearings and legislative sessions in support.
  • In California, Proposition 10, which would allow local municipalities to adopt rent-control provisions, was defeated in 2018. Campaign opponents raised $80 million, from mostly out-of-state investors.
  • In 2012, California’s Proposition 37, which would require GMO foods to be labeled as such, was defeated after millions were spent by huge corporations like Monsanto and DuPont.
  • In Michigan, 2012’s failed Proposal 6 sought to amend the State Constitution to require the approval of a majority of voters for proposed international bridges or tunnels. The bill was backed by a man who generated $60 million annually from a privately owned toll bridge.

Key Background Resources

Other Court Cases

Papers

Additional Resources

Corporate Power Over Ballot Questions: Archive of Older Cases

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This page is an archive of older cases of corporate ballot initiative abuse. See our main ballot initiative page here for current cases, background information, references to key legal decisions and more.

In California: 

  • Target Corporation succeeded in overturning a size cap in Davis at the ballot box in 2006 and Long Beach in 2007.
  • In 2005, two giant pharmaceutical companies committed $12 million to run a California ballot initiative on prescription drug pricing at the state level. Donations to Schwarzenegger’s California Recovery Team, the funding arm of his package of ballot initiatives, include $1 million from developer Alex Spanos, along with investments from Safeway Inc., E-Bay Inc. and Bank of America. Also, Wal-Mart Stores Inc., Cendant Corp., Citigroup Inc. and Target Inc. each gave $100,000 to Citizens to Save California, a political action committee promoting the governor’s agenda. Their bid failed, but again at enormous cost to those who defeated it.
  • In 2004, a corporate consortium succeeded in passing Proposition 64 to rescind key elements of California ‘s Unfair Business Practices Act (see pre-election story + background links or a post-election analysis by one of the law’s defenders). The law, previously was one of the nation’s strongest tools for environmental and consumer protection, was emasculated in the name of stopping “frivolous lawsuits.” This was the law used by Marc Kasky to sue Nike in the Nike v. Kasky case (we filed an amicus brief (pdf) at the U.S. Supreme Court challenging Nike’s claim to a “right to lie” under the 1st Amendment).
  • Humboldt County, CA: In 2006, the Humboldt Coalition for Community Rights successfully drove passage of a ballot initiative to ban any non-local corporation from contributing to any candidate campaign, referendum or recall in county elections. Read a brief summary. HCCR won 55% of the vote, but was later overturned in court.
  • Some CA unions are pursuing a different strategy of requiring shareholder consent for corporate political expenditures. Though we have not thoroughly evaluated the potential efficacy of this approach, this particular initiative is seriously flawed in our view.

In Montana 

  • In 2006, Wal-Mart overwhelmed citizen activists in Ravalli County with a massive PR campaign and overturned perhaps the most democratically-enacted law in county history. Residents of the county’s four municipalities — those most likely to be impacted — were banned from voting by county officials, based on the argument that their towns can enact their own zoning regulations. With the core base of opposition disenfranchised, Wal-Mart won narrowly.
  • In 2004, a single out-of-state mining corporation, Canyon Resources, Inc., spent a staggering $3 million (in a state with well under a million people) in a failed attempt to overturn I-137, passed by state voters in 1998 to prohibit cyanide leach mining in Montana (see this op-ed for details). Even though the initiative failed, the fight sucked huge amounts of money from citizen groups and diverted thousands of hours of work from pro-active organizing.

In Utah

  • In November of 2007, residents of Heber (near Park City) will vote on whether to allow stores exceeding 60,000 sq ft. A proposed Wal-Mart is the focal point. Wal-Mart already overwhelmed a ballot initiative by residents in nearby Sandy, UT in 2005.

In Arizona.

  • Real estate interests advanced a 2004 initiative to overturn public campaign financing at the state level. This initiative was later removed from the ballot for mixing two issues in a single initiative — forbidden by state law. Months later, Wal-Mart succeeded in overturning a size cap in Flagstaff by running its own ballot initiative.This op-ed covers that battle and an one in Sandy, Utah, where residents won a battle at Utah’s Supreme Court to hold a fall 2005 referendum on whether land should be rezoned to permit Wal-Mart and Home Depot to build there, only to be defeated at the ballot box.
  • In March of 2007, Wal-Mart spent more than $275,000 (the developer kicked in another $25k) to convince voters not to support a rezoning decision that allowed a proposed new “superstore.” Wal-Mart won, 5,598 to 2,893. Protect Prescott Valley, the local opposition, collected $1,500 from the UFCW.

In Maine

  • HR 2050 was introduced and defeated in spring, 2005. The bill proposed to revoke corporate claims to enjoy Bill of Rights protections in the state of Maine.

 See Also

When Money Is Speech, Speech Is Not Free

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Supreme Court majority says candidates must have unfettered right to turn personal wealth into political advantage

By Jeff Milchen

This expands on an article first published
July 8, 2008 in the Baltimore Sun

Building atop the rotten foundation it laid three decades ago, the Supreme Court (Federal Election Commission v Davis) has struck down the “Millionaires’ Amendment,” a federal law that helped keep Congressional elections competitive when a candidate funded their own campaign with a personal fortune. The law could have applied to 28 or more races this year.

The Court’s ruling repeatedly references its 1976 Buckley v. Valeo decision, which wrote between the lines of the First Amendment passage, “Congress shall make no law…abridging the freedom of speech,” to declare spending money to influence elections is constitutionally-protected free speech.

Since then, the Justices have struck down numerous laws designed to limit the power of money over election outcomes (and ballot initiatives).

What’s shocking about the Supreme Court’s opinion in Davis, however, is the disputed 2002 Millionaires’ Amendment to the McCain-Feingold Bill made no attempt to limit spending. To the contrary, it merely enabled candidates competing against a free-spending millionaire or billionaire to raise more money. According to the Court’s own logic, this simply enabled more “speech.”

The amendment allowed House candidates whose opponents spent $350,000 or more in personal funds to accept up to three times the current $2,300 per-donor limit (but only until their spending equaled that of the self-funding candidate). The law also allowed for raising contribution limits to in U.S. Senate races, with the threshold varying based on state population.

Writing the (5-4) majority opinion (pdf), Justice Alito said, “Different candidates have different strengths. Some are wealthy; others have wealthy supporters who are willing to make large contributions. Some are celebrities…” Trouble is, those advantages almost invariably accrue to the same individuals, not “different candidates.”

Alito absurdly argued that leveling the playing field actually impeded voters’ ability to make informed choices, then added, “The argument that a candidate’s speech may be restricted in order to level electoral opportunity has ominous implications.”

Restriction of speech? The amendment’s sole impact was to help prevent the candidate with the loudest amplification from drowning out all other voices. Jack Davis, the plaintiff, may have been deprived of the anti-competitive advantage he hoped to enjoy, but for a majority of the Court to claim his rights were violated is laughable.

Despite the Court’s ideological split, this is not a Republican-Democrat conflict. The plaintiff, Mr. Davis, is a Democrat who twice spent his own millions in losing bids for a U.S. House seat in New York. The 28 candidates spending enough to trigger the Amendment this year were split  between the dominant parties, though none are independents or “third party” representatives.

Ironically, the candidate who recently abandoned public financing for the general presidential election benefited directly from the amendment in 2004. Barack Obama was able to raise $3 million more than he otherwise could have in Illinois ‘ Democratic primary for Senate because one of his opponents, Blair Hull, spent nearly $30 million of his own money. It’s quite possible the Amendment already has changed the course of U.S. history.

The Justices’ ruling may affect just a few dozen congressional races this year, but the overall trend is more disturbing. Viewed in conjunction with their 2006 decision to strike down Vermont ‘s limits on campaign contributions in Randall v Sorrell*, it seems the Court steadily is diminishing the chance of any citizen winning a seat in Congress without huge sums of money. The Justices are accelerating the trend toward Congress becoming a rarified club populated by elites distinctly unrepresentative of average citizens.**

Not only will the Davis ruling impede citizens from learning the views of worthy candidates in several races, its language ominously suggests the Court may overturn long-standing limits on corporate and union campaign spending.*** Further, it implicitly attacks the most hopeful avenue for democratizing elections without overturning Buckley— public campaign financing (our Alaska chapter is advancing a clean elections initiative for 2008).

When the Court majority declares easing barriers to competitive elections an unconstitutional “burden” on wealthy candidates, it leaves little space for hope. With the existing majority likely to dominate the Court for a decade or more, reformers must confront a hard truth: the Supreme Court is a barrier to democratic elections and will be for many years. It’s time to aim below the beltway — away from legislative solutions subject to the Court’s approval and toward building bottom-up support to overrule the Court.

Ultimately, we need a constitutional Amendment to declare that investing cash in candidates is a privilege subject to democratic controls to prevent the buying both of elected offices and political influence — not free speech as intended by our Bill of Rights.

Jeff Milchen serves on the board of ReclaimDemocracy.org , a non-profit organization that has long advocated for a constitutional Amendment to overturn Buckley v Valeo.

*  ReclaimDemocracy.org engaged the court with this amicus brief in that case — a useful read for anyone seeking to dig deeper on this issue.

** Milchen details these impacts in this related 2006 commentary. 

*** e.g. Austin v. Michigan Chamber of Commerce (1990)

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