"In a time of universal deceit telling the truth is a revolutionary act." -George Orwell

Posts Tagged ‘Undue Political Influence’

Nations’ Pledges To Cut Carbon Emissions Insufficient To Avoid Catastrophic Climate Change; Set Course for Disastrous Warming: Analysis

In Uncategorized on September 11, 2015 at 8:14 pm

Oldspeak: “Here’s what we know: “Everyday politics is therefore dominated not by evidence-based policy-making but by attempts at ‘policy-based evidence-making‘ and global warming is likely to surpass the 2c “guardrail“, this news is a logical outcome. As we’ve seen from my last post, scientists are actually being discouraged from reporting facts. Is it any surprise then, that our policies are utterly incompatible with the reality we face? The reality is this: We’re currently on track for 3.2 to 5c of warming a.k.a extinction. The longer policy makers continue to pretend that 2c of warming is achievable at the same time that entirely too much carbon continues to be emitted by the day, while dirty energy producers keep on with “drill baby drill” and far too little is being done to reduce emissions the more certain our fate is sealed. It’s not difficult to understand. Technology that does not exist is being relied upon to make 2c warming scenarios plausible.  And by the way we’re destroying many of the life-forms that remove carbon from the atmosphere at breakneck speed. It’s time to accept that the 2c “guardrail” is no longer feasible. This is the awful truth about climate change that no one wants to admit. This delusional policy can only be countenanced for so much longer.  We’re fucked. “Ignorance Is Strength.” -OSJ

 

Written By Andrea Germanos @ Common Dreams:

Greenhouse gas reduction pledges countries have submitted to the United Nations in advance of global climate talks set the planet on a path that keeps critical climate goals out of reach.

That’s according to the Climate Action Tracker (CAT), a project of four research organizations that assesses nations’ climate pledges and actions. It released its findings Wednesday as talks are underway in Bonn, Germany, where global delegates are working to streamline the draft text for the UN climate change summit in Paris in December, known as COP21.

“One would have expected all the new Government climate targets combined to put the world on a lower emissions pathway, but they haven’t,” said Louise Jeffery of the Potsdam Institute for Climate Impact Research.

CAT analyzed what are called Intended Nationally Determined Contributions (INDCs) submitted by 15 governments, which together cover 64.5% of global emissions. Taken collectively, their plans would fail to avert a potentially disastrous level of warming, the analysis found.

“It is clear that if the Paris meeting locks in present climate commitments for 2030, holding warming below 2 degrees C could essentially become infeasible, and 1.5°C beyond reach,” said Bill Hare of Climate Analytics, which joins the Potsdam Institute as one of the four organizations comprising CAT.

It classified seven of the INDCs as inadequate, six as medium, and two as sufficient.

The United States was among those given the medium rating. That status, CAT states, “indicates that the U.S. climate plans are at the least ambitious end of what would be a fair contribution.”

CAT states that its “analysis shows that in order to hold global warming below 2°C, governments need to significantly strengthen the INDCs they have submitted to date.”

Regardless of pledges, some climate activists expect little progress from the Paris meeting.

As Alex Scrivener, policy officer at Global Justice Now, wrote at Common Dreams last month, COP21 won’t be the answer to climate change. That’s because “it will not be dealing with the underlying problem—the unfair economic system that puts the interest of fossil fuel addicted corporations above those of the people,” he wrote.

“So instead of being distracted by the false hope of a summit breakthrough, we should concentrate on putting pressure on our politicians to reduce emissions at home and building a broad and diverse movement to change the political context of climate policy. This means fighting trade deals that bestow rights on fossil fuel corporations. It means fighting the politics of austerity that forces us to accept ‘cheap’ coal instead of investing in clean, democratically controlled energy systems. And it also means fighting against the privatization of energy globally,” Scrivener writes.

The need for mass popular mobilizations to effect such change was also stressed in a joint statement recently issued by key leaders from the global climate justice movement.

“For more than 20 years, governments have been meeting, yet greenhouse gas emissions have not decreased and the climate keeps changing. The forces of inertia and obstruction prevail, even as scientific warnings become ever more dire,” the statement reads.

Yet “our actions are much more powerful than we think.”

“In the past, determined women and men have resisted and overcome the crimes of slavery, totalitarianism, colonialism or apartheid. They decided to fight for justice and solidarity and knew no one would do it for them. Climate change is a similar challenge, and we are nurturing a similar uprising,” they write.

 

IPCC Reports ‘Diluted’ Under ‘Political Pressure’ To Protect Fossil Fuel Interests Of Top Greenhouse Gas Emmitters In Saudi Arabia, U.S.,China, & Brazil

In Uncategorized on May 23, 2014 at 9:38 am
Berlin: April 14th 2014. Sigmar Gabriel speaking at the IPCC WG3 briefing. Future protestors watch him in silence.

Berlin: April 14th 2014. Sigmar Gabriel speaking at the IPCC WG3 briefing. ‘TheFuture.net’ protestors watch him in silence

Oldspeak: “Every word and line of the text previously submitted by the scientific community was examined and amended until it could be endorsed unanimously by the political representatives…The summary for policymakers is a document of appeasement, not fit for purpose. In reality, if my calculations are correct, we not only don’t have much of a carbon budget left, we have already overshot that budget – we’re in overdraft.” -Dr. David Wasdell, Director, Apollo-Gaia Project

“Omitted climate impacts. Deleted references to increases in greenhouse gas emissions. “….minimising text that could be perceived to be inconsistent with their negotiating positions.” Political wrangling devoid of any basis in science. This is what the most expansive & important international report on climate change was reduced to.  An absurdly flawed work of  “scientific vandalism”. The reality is we’ve already blown our carbon budget. We are well past the safe amount of carbon that can be emitted to avoid global ecological catastrophe. Every molecule of greenhouse gasses emitted plunges our world deeper into carbon debt. Accelerating every day, the rate of Anthropogenic global warming and climate change. The strength and number of amplifying positive feedbacks that are accelerating climate change continues to grow, as politicians negotiate. There is no negotiation with our Great Mother. The deal is done. Extinction of  the vast majority of life on earth is the only plausible outcome. ignore all the hopium fueled reports that we have time to fix, fight, or mitigate extinction inducing climate change. it’s nonsense. Time’s up. We’re fucked. Dead Species Walking. Accept this most basic of realities and live out the rest of your days on this dying planet in peace, compassion, gratitude & love.” -OSJ

By Dr. Nafeez Ahmed @ The U.K. Guardian:

Increasing evidence is emerging that the policy summaries on climate impacts and mitigation by the UN Intergovernment Panel on Climate Change (IPCC) were significantly ‘diluted’ under political pressure from some of the world’s biggest greenhouse gas emitters, including Saudi Arabia, China, Brazil and the United States.

Several experts familiar with the IPCC government approval process for the ‘Summary for Policymakers’ (SPM) reports – documents summarising the thousands of pages of technical and scientific reports for government officials – have spoken out about their distortion due to political interests.

According to David Wasdell, who leads on feedback dynamics in coupled complex global systems for the European Commission’s Global System Dynamics and Policy (GSDP) network, “Every word and line of the text previously submitted by the scientific community was examined and amended until it could be endorsed unanimously by the political representatives.”

In a detailed paper critiquing the WG1 Summary for Policymakers, Wasdell revealed that:

“Greatest pressure to establish grounds for the highest possible budget came from those countries whose national economy, political power and social stability depend on sustaining the asset value and production revenue derived from exploitation of their resources of fossil energy. Additional pressure was applied to the political agents by those vested interests whose sustained profitability was based on the extraction, refining, marketing and use of fossil energy as the ground of the global economy.”

As an accredited reviewer for the IPCC’s 2007 Fourth Assessment Report, Wasdell had previously criticised the political approval process for playing down amplifying feedbacks which could accelerate climate change. That charge was strongly denied by the IPCC’s lead authors at the time, although political interference amounting to “scientific vandalism” was alleged by other sources.

Wasdell told me that scientists familiar with the political approval process in Stockholm for the new WG1 Summary for Policymakers – including WG1 co-chair Prof Thomas Stocker who had signed the 2007 rejoinder to Wasdell – had confirmed that governments fought to amend text that would damage their perceived interests. His paper says:

“… the objections were led by Saudi Arabia, strongly supported by China, and associated with an emerging group of ‘like-minded nations.’ The impasse was broken following suggested modifications of both text and diagram provided by the representatives of the USA. The resulting compromise safeguards the vested interests of global dependency on fossil sources of energy, while constraining the capacity of the international community to take any effective action to deal with the threat of dangerous climate change.”

WG1 co-chair Prof Thomas Stocker, however, denied any knowledge of such political pressure, describing these allegations as “not correct for WG1.” He conceded that “the situation is different” for WG2 and WG3.

Wasdell said that the draft submitted by scientists contained a metric projecting cumulative total anthropogenic carbon dioxide emissions, on the basis of which a ‘carbon budget’ was estimated – the quantity of carbon that could be safely emitted without breaching the 2 degrees Celsius limit to avoid dangerous global warming. He said that the final version approved by governments significantly amended the original metric to increase the amount of carbon that could still be emitted.

The total carbon budget according to this estimate is about 1,000 gigatonnes of carbon (GtC) – although over 531 GtC was emitted already by 2011, leaving 469 GtC left. Applying the “corrected non-linear function” reduces this available budget to just “280 GtC” – this figure does not account for the role of greenhouse gases other than CO2, including the potential impact of thawing permafrost or methane hydrates.

If included, they would reduce the budget even further. Current emissions reduction pledges, therefore, still guarantee disaster. His paper reads:

“… present levels of international contribution towards the reduction of emissions still led to a cumulative total of 2000 GtC by the year 2100. That left an emissions reduction gap of some 1097 GtC between promised reductions and the 903 GtC required to prevent temperature increase exceeding the policy goal of 2°C.”

Wasdell thus told me:

“The summary for policymakers is a document of appeasement, not fit for purpose. In reality, if my calculations are correct, we not only don’t have much of a carbon budget left, we have already overshot that budget – we’re in overdraft.”

Wasdell’s claims about the politicisation of the IPCC’s summary reports for policymakers are corroborated by other scientists.

In a letter addressed to senior IPCC chairs dated 17th April, Prof Robert Stavins – a lead author for the IPCC’s Working Group 3 focusing on climate mitigation – complained of his “frustration” that the government approval process “built political credibility by sacrificing scientific integrity.” His critique was, however, widely misrepresented by climate deniers as proving that the IPCC’s scientific verdict about the dangers of global warming are too alarmist.

Leading the pack, Daily Mail reporter David Rose attempted to equate Stavins’ concerns with those of economist Richard Tol, who withdrew “from the summary of an earlier volume of the full IPCC report, on the grounds it had been ‘sexed up’ by the same government officials and had become overly ‘alarmist.'”

Yet as noted by Dimitri Zenghelis, principal research fellow at the London School of Economics Grantham Research Institute on Climate Change and the Environment, Tol’s claims about alarmism in the Stern review on the economics of climate change are riddled with “significant errors and misrepresentations,” “selective” and “misleading” quoting, and based on his own paper containing “a number of mistakes”, as well as a “fundamentally flawed” understanding of “the risks of climate change.”

The IPCC’s assessments of the potential costs of climate change “is probably an underestimate,” argued Zenghelis, “because it omits consideration of many of the impacts of climate change, including potentially catastrophic risks.”

Prof Stavins himself dismissed the denialist “fringe elements of the press and blogosphere” which “capitalised on the situation by distorting the message of my original post to meet their own objectives.”

“My expressed concerns,” Stavins told me, “were about the government approval process of one section on international cooperation of the Working Group 3 Summary for Policymakers.” He emphasised: “My remarks did not include any comments on and have no implications regarding the integrity of climate science.” Rather, government representatives in Berlin sought to “protect their respective countries’ interests by minimising text that could be perceived to be inconsistent with their negotiating positions.”

Stavins’ remarks were also backed up by Oxford University’s Prof John Broome, a IPCC WG3 lead author:

“At our IPCC meeting, they treated the SPM as though it were a legal document rather than a scientific report. To achieve consensus, the text of the SPM was made vaguer in many places, and its content diluted to the extent that in some places not much substance remained.”

Far from being too alarmist, these criticisms suggest that the IPCC’s summary reports are too conservative. Like Wasdell, Broome describes how “a coalition of countries led by Saudi Arabia” at the April approval session in Berlin “insisted” that all “figures” depicting increases of greenhouse gas emissions in countries classified by ‘income group’ “should be deleted.”

Saudi Arabia, he said, also “wanted to delete all references to any part of the main report that mentioned income groups… in the end Saudi Arabia got its way completely.”

According to the Sydney Morning Herald, other countries leading the drive to dilute the document included China, Brazil and the United States.

________________________________________________________________________________________

Dr Nafeez Ahmed is executive director of the Institute for Policy Research & Development and author of A User’s Guide to the Crisis of Civilisation: And How to Save It among other books. Follow him on Twitter @nafeezahmed

• This article was amended on 20 May 2014. An earlier version quoted comments by Dimitri Zenghelis and said they were in response to Richard Tol’s claims about “IPCC alarmism”. In the article Zenghelis was commenting on, Tol compares the IPCC’s conclusions on climate change costs with what he considers to be biased estimates in the Stern review on the economic effects of climate change.

Labor Day & The Election Of 2012: It’s The Inequality, Stupid.

In Uncategorized on September 3, 2012 at 6:53 pm

https://i0.wp.com/truth-out.org/images/090312in_.jpgOldspeak:” Seems pretty self-explanatory: “As wealth and income rise to the top, moreover, so does political power. The rich are able to entrench themselves by lowering their taxes, gaining special tax breaks (such as the “carried interest” loophole allowing private equity and hedge fund managers to treat their incomes as capital gains), and ensuring a steady flow of corporate welfare to their businesses (special breaks for oil and gas, big agriculture, big insurance, Big Pharma, and, of course, Wall Street). All of this squeezes public budgets, corrupts government, and undermines our democracy. The issue isn’t the size of our government; it’s who our government is for. It has become less responsive to the needs of most citizens and more to the demands of a comparative few.“-Robert Reich

By Robert Reich @ Robert Reichs Blog:

The most troubling economic trend facing America this Labor Day weekend is the increasing concentration of income, wealth, and political power at the very top – among a handful of extraordinarily wealthy people – and the steady decline of the great American middle class.

Inequality in America is at record levels. The 400 richest Americans now have more wealth than the bottom 150 million of us put together.

Republicans claim the rich are job creators. Nothing could be further from the truth. In order to create jobs, businesses need customers. But the rich spend only a small fraction of what they earn. They park most of it wherever around the world they can get the highest return.

The real job creators are the vast middle class, whose spending drives the economy and creates jobs.

But as the middle class’s share of total income continues to drop, it cannot spend as much as before. Nor can most Americans borrow as they did before the crash of 2008 — borrowing that temporarily masked their declining purchasing power.

As a result, businesses are reluctant to hire. This is the main reason why the recovery has been so anemic.

As wealth and income rise to the top, moreover, so does political power. The rich are able to entrench themselves by lowering their taxes, gaining special tax breaks (such as the “carried interest” loophole allowing private equity and hedge fund managers to treat their incomes as capital gains), and ensuring a steady flow of corporate welfare to their businesses (special breaks for oil and gas, big agriculture, big insurance, Big Pharma, and, of course, Wall Street).

All of this squeezes public budgets, corrupts government, and undermines our democracy. The issue isn’t the size of our government; it’s who our government is for. It has become less responsive to the needs of most citizens and more to the demands of a comparative few.

The Republican response – as we saw dramatically articulated this past week in Tampa – is to further reduce taxes on the rich, defund programs for the poor, fight unions, allow the median wage to continue to fall, and oppose any limits on campaign contributions or spending.

It does not take a great deal of brainpower to understand this strategy will lead to an even more lopsided economy, more entrenched wealth, and more corrupt democracy.

The question of the moment is whether next week President Obama will make a bold and powerful rejoinder. If he and the Democratic Party stand for anything, it must be to reverse this disastrous trend.

Why Is the ACLU Helping The Richest Americans Buy Our Elections?

In Uncategorized on February 21, 2012 at 4:17 pm

Oldspeak: “Plutocrats come in Red and Blue. Elephantine and Asinine. You can bet your ass Newt Gingrich isn’t the only Presidential candidate with a Billionaire benefactor. Obama has them too, the difference is he’s not being called to account for it, he’s openly talked of raising ONE BILLION dollars to finance his reelection campaign. I ask you What’s democratic about that?  How does someone with the means to raise that sum of money represent the interests of all Americans? He doesn’t.  He represent the interests of his benefactors. As long as unlimited monetary donations from multinational corporations, foreign investors and god knows who else with millions to ‘contribute’ is allowed, plutocracy will be order of the day in the U.S. of A.  Need we any more evidence that the 2 party system has failed, and it hopelessly corrupted with money, greed, and cronyism? ‘The ACLU thrives on being attacked and sees itself as the last legal line of defense against state censorship. But an honest look in a mirror may reveal that its anti-censorship absolutism is helping the wealthy to eclipse and suppress—if not silence—political speech of millions of ordinary Americans.’ -Steven Rosenfeld

By Steven Rosenfeld @ Alter Net:

The American Civil Liberties Union has earned its reputation as the nation’s foremost legal opponent of government censorship and defender of First Amendment political speech. But increasingly, this national organization with 500,000 members and a $70 million annual budget has another legacy—helping the wealthiest Americans and institutions spend unlimited sums on elections.

This complex legacy follows a nearly four-decade history of filing briefs in the Supreme Court and lower federal courts, virtually all of them arguing that the door to censorship, via regulation of core political speech, must never be opened. But various forces in the courts, the political world, and inside the ACLU are converging that may prompt the ACLU’s national board to reexamine its hardened stance in a more nuanced light, just as it moderated its policy on public financing of elections soon after the Supreme Court’s controversial Citizens United ruling.

The pressure went up considerably on Friday, as two U.S. Supreme Court Justices said the Court should reopen Citizens United, as they suspended a Montana Supreme Court ruling that upheld the state’s century-old ban on corporate electioneering. Unlike the ACLU’s national office, which urged the Court to remove restrictions on independent—or non-candidate related—electioneering, the Montana ACLU argued this wasn’t about censorship at all, but preventing corruption and ensuring Montanans’ voices could be heard in elections.

“Montana’s experience, and experience elsewhere since this Court’s decision in Citizens United v. Federal Election Comm’n, make it exceedingly difficult to maintain that independent expenditures by corporations ‘do not give rise to corruption or the appearance of corruption,’” wrote Justice Ruth Bader Ginsburg, with Justice Stephen Breyer joining. A hearing “will give the Court an opportunity to consider whether, in light of the huge sums currently deployed to buy candidate’s allegiance, Citizens United should continue to hold sway.”

Two phrases in the justices’ statement may have particular resonance for the ACLU’s national board—the “experience elsewhere” and “corruption or the appearance of corruption,” which suggest constitutional issues apart from censorship. In Citizens United, the ACLU had argued that independent expenditures were the kind of “speech that lies at the heart of the First Amendment” and must not be censored.

According to Burt Neuborne, the ACLU’s former national legal director and now legal director at the Brennan Center for Justice, only one perspective matters to an organization that has weathered criticism for decades for defending unpopular people and causes: whether new facts from current events and recent changes in law demand a reevaluation of their position. As the two justices suggest, the 2012 presidential campaign, in combination with the Court majority’s recent aggressive deregulation of campaign financing, may be that spark.

The presidential campaign has seen what’s left of the nation’s campaign finance laws flouted in a striking way that cannot have gone unnoticed within the ACLU; it has revealed that critical rulings in Citizens United (and the D.C. Circuit Court in a ruling that followed, SpeechNow.org) were at best politically naïve constructions. This is because 2012’s electoral landscape is presenting free speech issues that are not about state censorship—but what American democracy should look like and how big money functions in it.

The ACLU was not responsible for the Supreme Court’s decision to expand Citizens United from a narrow case to one remaking big portions of campaign finance law. But like many times before, it urged deregulation of electioneering—which the Court’s majority did for independent expenditures. Just weeks later, an appeals court in SpeechNow.org drew on this ruling, allowing individuals and corporations to make unlimited contributions to political committees, so long as those groups only make independent expenditures and do not coordinate with candidates. That is how today’s super PACs emerged.

In Citizens United, the Supreme Court made a series of remarkable assertions. It declared that independent expenditures could not corrupt candidates, as they would be truly independent and operate apart from the candidates. But neither the Supreme Court nor the Speechnow.org court said how to avoid coordination, assuming the problem away. Everyone on the Court but Justice Clarence Thomas held that disclosure of spending was permissible, not recognizing that current disclosure rules allow donors to operate in the dark behind innocuous stage names. Like coordination, corruption was also dumbed down. Invoking the long-established doctrine that the only legitimate reason for regulating campaign funds is curbing quid pro quo corruption or the appearance of it, the majority watered this concept down saying a lot about what corruption was not, namely access, influence and ingratiation of candidates, but next to nothing about what quid pro quo corruption was, apart from buying votes. Against this backdrop, Justice Anthony Kennedy, writing for the majority, made the startling assertion that limitless independent expenditures in elections could not possibly cause the public to lose faith in our democracy.

Needless to say, his prediction has not been borne out by events. Recent nationwide polling has found 55 percent of Americans oppose the decision, and bigger numbers believe that their voices are diminished compared to big donors and lobbyists. It is not hard to see why the public is upset and discouraged. Presidential candidates’ former campaign staffers are managing the supposedly independent committees, mocking that supposed independence. By uniformly taking the low road, they complement the official campaign’s positive messaging showing further coordination. The top donors use the fiction of independence to ignore federal contribution limits and write million-dollar checks, including to political non-profits that do not disclose their names. To suggest that an individual or corporation writing six- or seven-figure checks to back candidates or parties does not expect payback is naïve, former political consultants say. Meanwhile, a voluminous record discussing independent expenditures, coordination and corruption was before the Court during its deliberations. Citing this record, Justice John Paul Stevens in his Citizens United dissent wondered how the majority could be so indifferent.

“On numerous occasions we have recognized Congress’ legitimate interest in preventing the money that is being spent from exerting an ‘undue influence on an officeholder’s judgment’ and from creating ‘the appearance of such influence,’” he wrote. “Corruption operates along a spectrum, and the majority’s apparent belief that quid pro quo arrangements can be neatly demarcated from other improper influences does not accord with the theory or reality of politics.”

These developments raise specific First Amendment issues that are not about state censorship of political speech, but about corruption and distortions of the democratic process. These issues have been noted not only on editorial pages and parodied on late-night TV, but from within the ACLU itself. The Montana ACLU affiliate weighed in before the recent Montana Supreme Court decision, taking the opposite view of the national ACLU office. And New Mexico’s ACLU chapter did not interfere this month as that state’s legislature passed a resolution calling for a constitutional amendment to overturn Citizens United.

Moreover, in recent weeks, a respected Second Circuit judge took issue with Citizens United in a concurring opinion in a case involving New York City’s public financing system. “All is not well with this law, and I believe it appropriate to state in a judicial opinion why I think this is so,” wrote Guido Calabresi, a U.S. Court of Appeals judge and former Yale Law School dean, in comments to late 2011 ruling. Calabresi’s remarks address the majority’s contention in Citizens United—which echoes the national ACLU’s view—that unfettered political speech regardless of the speaker is paramount. He began by quoting Luke 21:1-4.

As Jesus looked up, he saw the rich putting their gifts into the temple treasury. He also saw a poor widow put in two very small copper coins. “Truly I tell you,” he said, “this poor widow has put in more than all the others. All these people gave their gifts out of wealth; but she out of her poverty put in all she had to live on.”

Like Luke, Calabresi noted that the wealthy will drown out the political speech of poorer people by virtue of spending more to send a message—having a larger megaphone. Additionally, he said that such domination of the airwaves also “obscures the depth of each speaker’s views,” as one cannot tell if the voice being eclipsed is whispering, crying or yelling—conveying the intensity of their opinions. “And that is a problem of profound First Amendment significance.”

“There is perhaps no greater a distortive influence on the intensity of expression than wealth differences,” he wrote. “The wider the economic disparities in a democratic society, the more difficult it becomes to convey, with financial donations, the intensity of an ordinary citizen’s political beliefs. People who care a little, if they are rich, still give a lot. People who care a lot must, if they are poor, give only a little. Jesus’ comment about the rich donors and the poor widow says it all.”

In other words, in 2012, when supposedly independent super PACs and political non-profits are raising millions from wealthy individuals and corporations whose actions are coordinated in all but name only with the candidates, and disclosure by those political entities is untimely or non-existent, the nation is facing serious First Amendment issues that do not neatly fit the ACLU’s anti-censorship line.

Convincing the ACLU

The ACLU is a nationwide organization with independent affiliates in every state and Washington, DC, and a headquarters and national legal department in New York. Its board of directors has representatives from every state and from its 500,000 members. As such, it is one of the most powerful legal advocacy organizations in the country.

For decades, people inside and outside the ACLU have tried to get its board to moderate its campaign finance views. Since 1970, it has taken up the issue two dozen times. The key question, according to Neuborne, its former national legal director, is whether today’s rising calls to restrict the wealthiest Americans and institutions from spending unlimited money ‘independent’ of campaigns is just today’s version of censoring society’s latest villain, as the federal government once tried to do with Communists, Nazis, gays, minorities and pornographers—or is something constitutionally different going on in today’s deregulated campaign finance environment?

One of the ACLU board’s long-held assumptions, which was affirmed in the Supreme Court’s 1976 Buckley v. Valeo ruling, is that candidates and independent groups who spend their own money in elections constitute a form of free speech that must not be regulated. In Buckley, the Court held that a new congressional law’s limits on campaign spending by office seekers and independent groups were unconstitutional. It ruled, however, that campaign contribution limits were constitutionally permissible in the interest of preventing corruption or its appearance with candidates, an interest that candidate and independent expenditures did not prevent. Buckley’s framework has led to today’s billionaires writing million-dollar checks to the supposedly independent super PACs and political non-profits, and in turn, voters in 2012’s early presidential contests hearing their views dominate the airwaves and debate.

The ACLU includes Buckley on its list of its most important 20th-century victories. Moreover, in the 36 years since that case, with few exceptions, the Court and the ACLU board both have treated spending money in elections as the purest form of protected constitutional speech there is—not conduct that can be regulated. That is a key legal distinction. Other areas of First Amendment law are not this clear-cut and all kinds of speech are regulated without seeing censorship issues. That raises the question of why should political speech in elections be so black and white, or can it be balanced with other democratic interests?

The ACLU’s assertion that political messaging is pure speech whose regulation amounts to censorship infuriates not just state and federal judges but many democracy advocates, particularly those who believe big money distorts the process and acts to suppress the speech of people of lesser means.

“It’s not speech itself and it never has been,” said John Bonifaz, co-founder and director of Free Speech for People. “It is conduct not speech, and any regulation of spending of campaign money in elections is the regulation of the manner of speech, to ensure that anyone who has a 1000-megawatt bullhorn is not able to drown out anybody else’s speech.”

A series of former top national ACLU officials have tried to get the national board to change its position. In fairness, the board did change its policy in April 2010 after Citizens Unitedsaying that spending limits were permissible for candidates that took public financing. And its board, noting this was unprecedented in ACLU history, agreed that “reasonable” contribution limits were acceptable, although that has been settled law since Buckley. But these changes re-enforced laws established decades earlier. And on the key holdings in Citizens United, the board did not budge.

“You can be furious at guys like that, especially when they win,” said Neuborne, who now believes the ACLU national policy is on the wrong side of history and the Constitution. He went before the board to make that case after Citizens United came out, debating Floyd Abrams, a famous First Amendment attorney whose legal career has spanned defending the New York Times to shielding major tobacco companies from federal health regulations.

“Their trumping legal argument is that you have to make an overwhelming showing of need before they will sit still for censorship. And they say your overwhelming showing of need is that rich people have too much power in the society, and they are distorting the democratic process. Their argument is, ‘Look, there are a lot of rich people and a lot of them disagree. So if the rich people cancel each other out, what’s the big deal? All they do is fund democracy. People get more speech and the rich folks pay for it.”

That’s not all the ACLU’s board says, said Neuborne. “Second thing they say [is that] if you think that rich folk’s speech is skewed, you have to show me facts to demonstrate that. You just can’t tell me it’s a problem. Show me which election it has happened in. Show me where one side blew out the other side to the point where the other side wasn’t able to make its case to the electorate. You know what, I can’t make that showing. The closest it happened interestingly was Florida, when Romney outspent Gingrich five to one. I think it demonstrably changed the outcome of the election. But you cannot argue that national elections are shifted that way, because in national elections that parties are relatively equally balanced in terms of money.”

Indeed, 2012 is turning into exactly that kind of political arms race. While most of the early independent spending has been in the Republican presidential race, the Democrats are quickly falling in line. The Obama re-election campaign has said it would refer donors to a super-PAC run by a top ex-Obama campaign staffer—another instance of admitting that these PACs were anything but “independent” of the campaigns, the concern that Justice Kennedy turned a blind eye to Citizens United. In liberal circles, Credo Mobile, a phone company that has raised millions for progressive causes, said it too would form a super-PAC for the 2012 election. So has ActBlue, which has a traditional PAC that can donate to candidates and an independent super-PAC.

Neuborne knows American elections do not benefit from this spiral—which only elevates the role of wealthier participants at the expense of Americans of more modest means. The question is how to convince the ACLU board. It may have debated its response to Citizens United too soon, he said, noting that Abrams argued the organization would look foolish after siding with the Court majority in the case and winning—only to reverse its position. That, however, was a political argument, not a constitutional one. Neuborne said 40 percent or more of the board believe it is time to take a more nuanced view.

“Where the ACLU goes off the rails is that it forgets at some point that spending massive amounts of money ceases to be analogous to just pure speech and becomes an exercise in power,” Neuborne said. “I think that the ACLU is forgetting that the First Amendment is democracy’s friend, not democracy’s enemy.  And when it demonstrably hurts democracy there has to be something wrong with a policy that just digs in and says, ‘Sorry, the First Amendment made us do it.'”

The ACLU’s national press office declined to comment or make any attorneys available for this article. Calls and emails to ACLU litigators, current and former, who litigated many of its political speech cases before the Court also were not returned.

However, Neuborne is hardly alone in his analysis of how First Amendment fundamentalism can fray the fabric of political speech and democracy. Supreme Court Justices, starting with Byron White’s dissent at the start of the Court’s modern deregulatory regime in Buckley, and John Paul Stevens, whose 2010 dissent in Citizens United, catalogued the dangers of unregulated big money in elections.

“While it is true that we have not always spoken about corruption in a clear or consistent voice, the approach taken by the majority cannot be right, in my judgment, “Stevens wrote. “It disregards our constitutional history and the fundamental demands of a democratic society.”

Unlike the 1976 Buckley decision, which slowly transformed America’s campaign finance landscape over many years, the impact from Citizen United has come in barely two years. The Court’s majority in Citizens United did not anticipate these consequences. It puts those who argued with the majority—such as the ACLU’s national office—in an awkward place, because as new facts have emerged, so have nuanced political speech issues that cannot be adequately answered by saying censorship is the most important First Amendment issue.

And Citizens United may be headed back to the Supreme Court. On Friday, the Court issued a stay in a suit challenging Montana’s 1912 ban on corporate campaigning. The Court could overrule Montana without a hearing—citing the supremacy of the nation’s highest court over state courts. Or it could hold a hearing to re-evaluate parts of it in light of new facts and public perceptions.

Should the Court hear the Montana case, the ACLU board may be pushed to re-evaluate its policy. Whether it will remains to be seen. The ACLU thrives on being attacked and sees itself as the last legal line of defense against state censorship. But an honest look in a mirror may reveal that its anti-censorship absolutism is helping the wealthy to eclipse and suppress—if not silence—political speech of millions of ordinary Americans.

Steven Rosenfeld covers democracy issues for AlterNet and is the author of “Count My Vote: A Citizen’s Guide to Voting” (AlterNet Books, 2008).

© 2012 Independent Media Institute. All rights reserved.
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