It was not entirely unexpected, but is still dramatic and depressing news: in a 5-4 decision, the U.S. Supreme Court has overturned a century-old ban on direct corporate political spending, potentially opening a very large spigot of special-interest money into our airwaves just in time for the 2010 elections.
The decision did not immediately affect federal limitations on contributions to candidates, or “soft money” contributions to party committees. But it did strike down the ancient prohibition of direct corporate sponsorship of “issue ads.” The decision also kills state-level corporate political spending bans.
It will take awhile to fully digest the impact of this decision, which is the most tangible consequence yet of George W. Bush’s Court appointments (Roberts and Alito joined the majority). And it’s not an unambiguous victory for corporations, since labor unions and progressive non-profit corporations are also “liberated” by the ruling.
But this does represent one of the hard-core Right’s long-term agenda items, and obviously strengthens the Court’s “money equals speech” formulation of First Amendment rights, which has long frustrated campaign reform advocates and puzzled observers from other countries. It also may feed the trend among reformers to focus on public financing of campaigns as an alternative to private political money, instead of increasingly futile efforts to regulate private political money.
All in all, though, the Supremes made sure this will go down as an especially bad week in progressive politics.
TDS Strategy Memos
Latest Research from:
Editor’s Corner
By Ed Kilgore
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December 18: Democratic Strategies for Coping With a Newly Trumpified Washington
After looking at various Democratic utterances about dealing with Trump 2.0, I wrote up a brief typology for New York:
The reaction among Democrats to Donald Trump’s return to power has been significantly more subdued than what we saw in 2016 after the mogul’s first shocking electoral win. The old-school “resistance” is dead, and it’s not clear what will replace it. But Democratic elected officials are developing new strategies for dealing with the new realities in Washington. Here are five distinct approaches that have emerged, even before Trump’s second administration has begun.
If you can’t beat ’em, (partially) join ’em
Some Democrats are so thoroughly impressed by the current power of the MAGA movement they are choosing to surrender to it in significant respects. The prime example is Senator John Fetterman of Pennsylvania, the onetime fiery populist politician who is now becoming conspicuous in his desire to admit his party’s weaknesses and snuggle up to the new regime. The freshman and one-time ally of Bernie Sanders has been drifting away from the left wing of his party for a good while, particularly via his vocally unconditional backing for Israel during its war in Gaza. But now he’s making news regularly for taking steps in Trump’s direction.
Quite a few Democrats publicly expressed dismay over Joe Biden’s pardon of his son Hunter, but Fetterman distinguished himself by calling for a corresponding pardon for Trump over his hush-money conviction in New York. Similarly, many Democrats have discussed ways to reach out to the voters they have lost to Trump. Fetterman’s approach was to join Trump’s Truth Social platform, which is a fever swamp for the president-elect’s most passionate supporters. Various Democrats are cautiously circling Elon Musk, Trump’s new best friend and potential slayer of the civil-service system and the New Deal–Great Society legacy of federal programs. But Fetterman seems to want to become Musk’s buddy, too, exchanging compliments with him in a sort of weird courtship. Fetterman has also gone out of his way to exhibit openness to support for Trump’s controversial Cabinet nominees even as nearly every other Senate Democrat takes the tack of forcing Republicans to take a stand on people like Pete Hegseth before weighing in themselves.
It’s probably germane to Fetterman’s conduct that he will be up for reelection in 2028, a presidential-election year in a state Trump carried on November 5. Or maybe he’s just burnishing his credentials as the maverick who blew up the Senate dress code.
Join ’em (very selectively) to beat ’em
Other Democrats are being much more selectively friendly to Trump, searching for “common ground” on issues where they believe he will be cross-pressured by his wealthy backers and more conventional Republicans. Like Fetterman, these Democrats — including Senators Bernie Sanders and Elizabeth Warren — tend to come from the progressive wing of the party and have longed chafed at the centrist economic policies advanced by Barack Obama, Hillary Clinton, and, to some extent, Joe Biden and Kamala Harris. They’ve talked about strategically encouraging Trump’s “populist” impulses on such issues as credit-card interest and big-tech regulation, partly as a matter of forcing the new president and his congressional allies to put up or shut up.
So the idea is to push off a discredited Democratic Establishment, at least on economic issues, and either accomplish things for working-class voters in alliance with Trump or prove the hollowness of his “populism.”
Colorado governor Jared Solis has offered a similar strategy of selective cooperation by praising the potential agenda of Trump HHS secretary nominee, Robert F. Kennedy Jr., as helpfully “shaking up” the medical and scientific Establishment.
Aim at the dead center
At the other end of the spectrum, some centrist Democrats are pushing off what they perceive as a discredited progressive ascendancy in the party, especially on culture-war issues and immigration. The most outspoken of them showed up at last week’s annual meeting of the avowedly nonpartisan No Labels organization, which was otherwise dominated by Republicans seeking to demonstrate a bit of independence from the next administration. These include vocal critics of the 2024 Democratic message like House members Jared Golden, Marie Gluesenkamp Perez, Ritchie Torres, and Seth Moulton, along with wannabe 2025 New Jersey gubernatorial candidate Josh Gottheimer (his Virginia counterpart, Abigail Spanberger, wasn’t at the No Labels confab but is similarly positioned ideologically).
From a strategic point of view, these militant centrists appear to envision a 2028 presidential campaign that will take back the voters Biden won in 2020 and Harris lost this year.
Cut a few deals to mitigate the damage
We’re beginning to see the emergence of a faction of Democrats that is willing to cut policy or legislative deals with Team Trump in order to protect some vulnerable constituencies from MAGA wrath. This is particularly visible on the immigration front; some congressional Democrats are talking about cutting a deal to support some of Trump’s agenda in exchange for continued protection from deportation of DREAMers. Politico reports:
“The prize that many Democrats would like to secure is protecting Dreamers — Americans who came with their families to the U.S. at a young age and have since been protected by the Deferred Action for Childhood Arrivals program created by President Barack Obama in 2012.
“Trump himself expressed an openness to ‘do something about the Dreamers’ in a recent ‘Meet the Press’ interview. But he would almost certainly want significant policy concessions in return, including border security measures and changes to asylum law that Democrats have historically resisted.”
On a broader front, the New York Times has found significant support among Democratic governors to selectively cooperate with the new administration’s “mass deportation” plans in exchange for concessions:
“In interviews, 11 Democratic governors, governors-elect and candidates for the office often expressed defiance toward Mr. Trump’s expected immigration crackdown — but were also strikingly willing to highlight areas of potential cooperation.
“Several balanced messages of compassion for struggling migrants with a tough-on-crime tone. They said that they were willing to work with the Trump administration to deport people who had been convicted of serious crimes and that they wanted stricter border control, even as they vowed to defend migrant families and those fleeing violence in their home countries, as well as businesses that rely on immigrant labor.”
Hang tough and aim for a Democratic comeback
While the Democrats planning strategic cooperation with Trump are getting a lot of attention, it’s clear the bulk of elected officials and activists are more quietly waiting for the initial fallout from the new regime to develop while planning ahead for a Democratic comeback. This is particularly true among the House Democratic leadership, which hopes to exploit the extremely narrow Republican majority in the chamber (which will be exacerbated by vacancies for several months until Trump appointees can be replaced in special elections) on must-pass House votes going forward, while looking ahead with a plan to aggressively contest marginal Republican-held seats in the 2026 midterms. Historical precedents indicate very high odds that Democrats can flip the House in 2026, bringing a relatively quick end to any Republican legislative steamrolling on Trump’s behalf and signaling good vibes for 2028.
Here’s another idea for reversing SCOTUS’ ruling on Citizens United v. FEC;
A diarist named Smintheus posted on unbossed.com a very quick and simply remedy for this power-grab by corporations;
Congress should prohibit any corporation from engaging in this new political spending if it has any non-American shareholders, or owners. Because after all, foreigners have no 1st amendment protections.
This brilliant idea was picked up by PLS who posted the diary “How to hoist the SCOTUS on their own petards!!!” on Daily Kos. This stroke of genius not only undoes SCOTUS’ treasonous decision, it seriously weakens the hold corporations CURRENTLY have over our democracy.
This is AN EXCELLENT way to punish SCOTUS and the Republicans for attempting a coup of our government on behalf of corporations.
Here is the statute upon which the tactic succeeds;
U.S. Code § 441e. Contributions and donations by foreign nationals
(a) Prohibition
It shall be unlawful for—
(1) a foreign national, directly or indirectly, to make—
(A) a contribution or donation of money or other thing of value, or to make an express or implied promise to make a contribution or donation, in connection with a Federal, State, or local election;
(B) a contribution or donation to a committee of a political party; or
(C) an expenditure, independent expenditure, or disbursement for an electioneering communication (within the meaning of section 434 (f)(3) of this title); or
(2) a person to solicit, accept, or receive a contribution or donation described in subparagraph (A) or (B) of paragraph (1) from a foreign national.
(b) “Foreign national” defined
As used in this section, the term “foreign national” means—
(1) a foreign principal, as such term is defined by section 611 (b) of title 22, except that the term “foreign national” shall not include any individual who is a citizen of the United States; or
(2) an individual who is not a citizen of the United States or a national of the United States (as defined in section 1101 (a)(22) of title 8) and who is not lawfully admitted for permanent residence, as defined by section 1101 (a)(20) of title 8.
Here is the above mentioned section 434 (f)(3)
3) Electioneering communication
For purposes of this subsection—
(A) In general
(i) The term “electioneering communication” means any broadcast, cable, or satellite communication which—
(I) refers to a clearly identified candidate for Federal office;
(II) is made within—
(aa) 60 days before a general, special, or runoff election for the office sought by the candidate; or
(bb) 30 days before a primary or preference election, or a convention or caucus of a political party that has authority to nominate a candidate, for the office sought by the candidate; and
(III) in the case of a communication which refers to a candidate for an office other than President or Vice President, is targeted to the relevant electorate.
(ii) If clause (i) is held to be constitutionally insufficient by final judicial decision to support the regulation provided herein, then the term “electioneering communication” means any broadcast, cable, or satellite communication which promotes or supports a candidate for that office, or attacks or opposes a candidate for that office (regardless of whether the communication expressly advocates a vote for or against a candidate) and which also is suggestive of no plausible meaning other than an exhortation to vote for or against a specific candidate. Nothing in this subparagraph shall be construed to affect the interpretation or application of section 100.22(b) of title 11, Code of Federal Regulations.
– end of code description –
Piecing together the most salient parts of the above statute, we have the following;
“It shall be unlawful for a foreign national, directly or indirectly, to make a contribution in connection with a Federal, State, or local election, or expenditure for an electioneering communication. The term “electioneering communication” means any broadcast, cable, or satellite communication which refers to a clearly identified candidate for Federal office, is made within 60 days before a general, special, or 30 days before a primary or preference election.”
The limiting phrase in this law is “which refers to a clearly identified candidate for Federal office.” Because the Citizens United v. FEC ruling refers to non-identified candidate communications, what Congress needs to do is extend this statute to include ANY elections-related communications. An example of why this extension seems very reasonable would be in order to prevent a foreigner from an oil producing country from bombarding U.S. television shows with ads that claim “Global warming is just a hoax; keep buying our oil.”
Smintheus’ solution seems very promising. We should explore it a bit further, and if it proves solid, quickly take action on it.
With their ruling in favor of Citizens United v. FEC, the Conservative members of the Supreme Court have committed treason far more dangerous and egregious than their having stolen the 2000 election for Bush. This time they have gone too far by handing our democracy to corporations. The way to remedy this treason is simple and straightforward.
The first step is for Congress to end or fix the filibuster rule so that Republican and Blue Dog Senators can no longer usurp majority rule in the Senate, and prevent the second step.
The second step is for Congress to create two new Supreme Court seats, increasing the total number of justices from nine to eleven. FDR failed in this in the 1930s because he tried to create SIX new justices, and because he was not facing as great an assault on our democracy as we are now. The American People would support Congress’s appointing these two new justices in order to preserve our democracy.
The third and final step is for someone to challenge the new ruling in the courts and have the suit move its way up to the Supreme Court. I’m not sure if that can happen before the Citizens United v. FEC decision allows corporations to hijack the 2010 election. If so, such a delay is not an acceptable option.
Until Citizens United v. FEC is overturned, Obama and the Democratic Congress have a course of action. According to the Constitution, the President is not bound by Supreme Court decisions. There is a famous instance when the Supreme Court rendered a decision and a president said something to the effect that; “Well, you’ve made your decision. Now try to enforce it.” I think it was FDR, but I’m not sure on that.
SCOTUS’ handing our democracy to corporations with this decision can and will, if we let it stand, defeat any and every major progressive initiative after the 2010 elections. If this decision stands, we risk losing both our Senate and House majorities.
We need to put aside every other initiative right now and concentrate our power on defeating this decision by advocating for Congress to end the filibuster, create two new SCOTUS seats, and then have the new SCOTUS reverse the decision. We need to alert the public about this assault on our democracy so that they will fully back Congress’s decision to end the filibuster in order to create the two new seats.
We cannot do everything at once. If we try to assume a business-as-usual approach and continue to work on many other initiative while also working on this one, we risk failing. That is not an option we can afford.
WE NEED TO TABLE ALL OTHER INITIATIVES UNTIL WE GET THIS JOB DONE.
The vast majority of blog posts on all of the Liberal/Progressive sites for the next several weeks should be about getting this done. We should organize our efforts so that some blogs are focusing on some parts of this, and other blogs are focusing on others. We need to organize and fight like our democracy depended on it, because it does.