Even as the nationwide grassroots rebellion sparked by the Supreme Court’s ruling in Citizens United v. Federal Election Commission continues to spread, citizens concerned that our  democracy is being auctioned off to secretive, unaccountable interests are getting some backup from the lower federal courts. On Monday afternoon, a panel of the DC Circuit Court of Appeals refused to stay the opinion of the district court that effectively closed – for the time being, at least — a regulatory loophole that allowed wealthy individuals and corporations funding so-called “issue ads” in the lead-up to an election to avoid disclosure, so long as they gave to “charitable” non-profit groups started by “philanthropists” like Republican political strategist Karl Rove.

Last month, a lower court found that the 2007 Federal Election Commission (FEC) regulation that created the loophole “arbitrarily and capriciously” undermined the law’s clear intent to force disclosure, one that even the Citizens United ruling affirmed. By declining to stay that ruling, and finding in the process that it will likely be upheld when it is argued on its merits this fall, the appeals court ensured that donors of more than $1,000 for electioneering communications previously shielded from the public eye are going to have to face disclosure.

This week’s ruling comes in the midst of a loud wave of shareholder activism demanding that corporate leaders stop meddling in electoral politics, and to at least fully disclose what they’re up to if they continue.

Meanwhile, states and local communities are continuing to demand a constitutional amendment that ends the auctioning of our democracy once and for all, by overturning Citizens United and related cases. Tuesday night, the Rhode Island General Assembly became the fifth state legislature to get behind an amendment; cities and towns across the country like Seattle, WA; Evanston, IL; and Hartford, CT continue to echo that call on (literally) a daily basis.

Of course, there’s no guarantee that the notoriously-divided FEC will take meaningful action to craft and enforce new rules. There’s still a possibility that the Supreme Court will grant a stay after all, but that is not likely. The very disclosure law that the district and appellate courts have upheld was even cited by Justice Kennedy in the Citizens United decision as a good thing that would help off-set any damage caused by unlimited corporate spending. More likely, such groups will shift their campaign spending from “electioneering communications,” where donors must now be disclosed, to “independent expenditures,” which still hide behind the anti-transparency rules of the FEC and were not subject to the court ruling.

And deep-pocketed donors and the organizations doing their will are bound to find ways to work around the new disclosure requirement for electioneering communications as well. In fact, they started plotting out potential shortcuts the other month, as Dan Froomkin and Paul Blumenthal report:

The April ruling already prompted one group, the conservative American Future Fund, to ask for an advisory opinion on whether they could continue to keep their donors secret as long as they used “White House” or “administration” in their ads rather than “Obama.”

Make no mistake about it, however: Monday’s ruling is a big victory for greater transparency, and will definitely make some of the corporate interests that have been shelling out record amounts since Citizens United was handed down think twice about the potential to be exposed to a public that is sick and tired of being drowned out by the rich and powerful.

In the end, we need a constitutional amendment to finitely overcome any loopholes and get the corrosive influence of money out of the decision-making process. But sunlight is a strong, and welcome, disinfectant that stands, at the very least, to facilitate public scrutiny of those who have attained unprecedented influence over elected officials in recent decades.

Sean Siperstein is a Legal Fellow with Public Citizen’s Democracy is For People campaign. Follow the campaign on Twitter @RuleByUs, as well as the hashtag #Democracy4 Sale, for the latest on the money and politics and the campaign for a constitutional amendment!

Revisiting the lessons from deregulating derivatives is particularly important right now because Congress seems to have forgotten them. A report we issued Monday provides a road map of how derivatives wrecked the economy in 2008, and could do so again if Wall Street gets its way.

Nine bills that would roll back the derivatives reforms created in the wake of the financial crisis are moving in Congress. These proposals, most of which have at least passed in committee, have been put forth in the name of furthering the competitiveness of U.S. companies and aiding Main Street job creation. These are quite brazen claims, since deregulating derivatives arguably did more to harm economic competitiveness and job creation than anything Congress has done for a very long time.

Here is the history, in brief: At the end of the Clinton administration, financial derivatives were relatively new and sat in a regulatory netherworld. In practice, they were not regulated. But they bore all the hallmarks of traditional futures, which by law must be traded on regulated exchanges.

Federal Reserve Chairman Alan Greenspan and successive Treasury Secretaries Robert Rubin and Lawrence Summers (a trio Time magazine dubbed The Committee to Save the World in 1999) argued that financial derivatives investors were too “sophisticated” to require oversight. Regulating derivatives would “cause the worst financial crisis since World War II,” Summers expanded.

In 2000, with the passage of the Commodity Futures Modernization Act, Congress established a regulation-free haven for financial derivatives. Derivatives soon became a petri dish for the growth of financial risk-taking, especially relating to the housing market.

In rough terms, derivatives’ dealers sold hundreds of billions of dollars’ worth of quasi-insurance policies (called credit default swaps) on mortgage-backed securities to holders of the securities. The illusion of protection provided by these insurance policies helped create a voracious appetite on Wall Street for mortgages to bundle into securities. This, in turn, led mortgage originators to adopt laughably low underwriting standards, causing housing prices to soar to unsustainable levels.

When reality intervened and mortgages defaults began occurring in droves, holders of defaulted mortgage-backed securities submitted claims to the provider of their credit default swap “insurance policies” (primarily American International Group, or AIG), only to learn that AIG could not make good on its promises. The absence of supervision of derivatives had permitted AIG to amass risks well in excess of its resources—and thereby put the entire economy in grave jeopardy.

AIG’s inability to pay its counterparties threatened to cause a ripple effect of institutional failures that could have thrown the economy back into the stone age. A $700 billion taxpayer-funded bailout was ordered up to prevent a total collapse of the financial system. Regular Americans were left to suffer through the deepest recession since the Great Depression.

Experts agree with the essence of the summary above. Each of the members of The Committee to Save the World, for instance, has recanted his advocacy for a laissez-faire approach to derivatives. Rubin now says he even favored regulation when critical decisions were being made in the late 1990s, but that “very strongly held views in the financial services industry in opposition to regulation were insurmountable.”

Which brings us to the present. The Dodd-Frank Wall Street Reform and Consumer Protection Act instituted a series of common sense reforms, including requirements for derivatives trades to occur on designated exchanges. This key step would ensure that prices are transparent and that a centralized clearing agency guarantees the credit worthiness of trading participants. This is how stocks and futures have been traded since the reforms of the 1930s. But because more money can be made trading on opaque, unsupervised markets, Wall Street objects to this reform. Once again, its leaders are attempting to subject Washington, and the country, to an insurmountable force.

Of the bills seeking to punch holes in Dodd-Frank, a few are comically ridiculous—and dangerous. One, H.R. 3283, cedes regulatory authority to foreign governments for the overseas activities of U.S. firms. Ask yourself, when was the last time Congress advocated submitting to foreign control of anything? Only Wall Street’s influence could convince lawmakers to favor such a thing.

Another bill is the cleverly titled Swaps Bailout Prevention Act. It does the opposite of what its title suggests. It would repeal Dodd-Frank’s prohibition against bailing out of major derivatives participants and, thus, allow federally insured banks to remain major derivatives players.

Last week brought news that JPMorganChase, the nation’s largest bank, suffered losses of at least $2 billion—which may climb above $4 billion—on bets on credit default swaps, the same scourge that led to the 2008 crisis. More alarming, the bank’s losses came on positions that may have been as high as $100 billion, meaning that a slight change in conditions had potentially enormous implications. This is exactly why derivatives, which financier Warren Buffett presciently labeled financial weapons of mass destruction in 2003, require vigilant public oversight.

The JPMorgan episode may be the warning that Congress needs to return to its role of protecting the public rather than coddling the banks. But it also raises a question: how many times does a lesson have to be taught before it is learned?

This week, we’ve got our eyes on Congress, Wall Street, the “#1 Corporate Power Tool,” school districts and more!"Public Citizen Lady Liberty"

For better or worse, Washington D.C. is a city of awash with acronyms. And this week, there are a few capital letters that the medical device industry would rather you not pay any attention to: MDUFA. Literally, MDUFA stands for Medical Device User Fee and Modernization Act, but in actuality these letters simply mean danger for consumers.  A lot of the coverage of MDUFA has focused on the prescription drug aspect. However, the story is about more than drugs. Medical device safety is at a crossroads, and Congress could really mess things up. Here is where MDUFA stands now.  We recently wrote a report, which documented the average number of high-risk recalls of medical devices in 2011 was more than double than in recent years. We also documented the keen interest the medical device industry seemed to have in weakening already lax regulations. This week Congress will vote on MDUFA and we urge them to put patient safety ahead of corporate profit.

Today, amid the news coverage of JPMorgan Chase’s $2 billion loss in derivatives bets, Public Citizen published a report, many weeks in the making, that expounds on the historical lessons of derivatives deregulation and the urgency to implement the rules called for in the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010. Read a copy of the press release which links to the report entitled: “Forgotten Lessons of Deregulation: Rolling Back Dodd-Frank’s Derivatives Rules Would Repeat a Mistake that Led to the Financial Crisis.” The report explains how America’s top financial policymakers deregulated the financial derivatives market in the 1990s and provides a detailed account of how deregulation led to the ensuing housing bubble, financial crisis and Great Recession.

The report comes as members of Congress have introduced nine bills that would weaken the derivatives provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010.

All seven bills moving in the U.S. House of Representatives have been approved by committees, and three have passed the full House. Two bills that would exempt overseas transactions from Dodd-Frank’s derivatives provisions may be voted on as soon as Thursday in the House Agriculture Committee. Other bills would exempt trades by supposedly “small” players, reduce transparency requirements and strike down a provision to ban derivatives trading by federally insured banks. At least three other bills would impose impediments for agencies to promulgate rules concerning financial services in general.

Continue Reading

We have stepped in to defend a blogger against a motion to compel him to identify the author or authors of two anonymous comments to one of his stories.  The First Amendment and other arguments are interesting in themselves, but it currently appears that

flickr by viteez

the case is going to become important for a different reasons – the subpoenaing party appears to be claiming the right to a forensic examination of the blogger’s computer system to see whether discarded identifying information can somehow be retrieved.

The case involves Escape Media Group, the host of a music streaming web site that is currently defending lawsuits brought in New York federal and state courts by various record labels accusing it of copyright infringement.  The blogger had written several stories about the controversy.  On one story reporting about complaints by a band member about the hosting of his music, an anonymous commenter, claiming to be an employee of Escape Media, posted comments purporting to “blow the whistle” on the creation of quotas for employee uploading which, in turn, encourages employees to grab  copyrighted recordings for the streaming site without the owner’s consent.  The plaintiffs in one of the copyright actions actually cited one of the anonymous postings in arguing that they had a legitimate basis for alleging copyright infringement.

Escape then sent a subpoena to the blogger claiming both that it needed to know who the poster was to know how to sue for defamation, and that it needed the identity of the poster in order to show that the basis for one of the allegations in the complaint is false.  The blogger began by representing himself pro se, claiming protection against the subpoena based on both the “Dendrite” standard and the California shield law.

We decided to represent the blogger because it seemed to us that the argued basis for the subpoena was transparently spurious.  To be sure, the anonymous posts said things about Escape Media that could damage its reputation, and that could well be defamatory if false.  But Escape Media wasn’t actually suing for defamation (and its reply brief seems to step away from the desire to sue for defamation as a ground for the subpoena).  And anonymous posts are not admissible evidence in the underlying infringement lawsuits; so showing the falsity of the anonymous comments would not, in itself, aid the defense of the lawsuit.  Indeed, the truth or falsity of claims about what Escape Media tells its employees to do, and what those employees actually do, can only determined through discovery of those employees and, perhaps, a careful review of Escape Media’s own documents (and computers).

Continue Reading

I have a nest egg, just like most working people have, where I tuck away a portion of my earnings in order to make things easier once it’s time for me to retire.

But, I wonder, what good is planning for the future if my retirement investments are being spent by companies like 3M, Target and Bank of America, to elect politicians who want to allow corporations to pollute our environment and ransack our economy?

This was the question kicking around my head when I joined other opponents of corporate money in politics during the 3M’s annual shareholder meeting earlier this week.

Protestors outside 3M shareholder meeting. Photo via 99% Power.

Despite the stormy weather, scores of protesters carrying signs with messages such as “Post-its, Not Politics” and “Corporat3Money OUT of Elections” rallied outside the meeting, which was held at River Centre in Saint Paul, Minn. Groups joining the rally included Common Cause, Public Citizen, Minnesotans for a Fair Economy, Take Action Minnesota, MPIRG and others associated with the Corporate Reform Coalition and the 99% Power movement.

Several demonstrators went inside as proxies for shareholders who are concerned about the impact of corporate money in elections. Their concern in 3M’s case is well-founded – in 2010, 3M (like Target) gave $100,000 to MN Forward, a front group backing radical right-wing gubernatorial candidate, Tom Emmer.

Continue Reading

© Copyright . All Rights Reserved.