The NRA is rightly catching a lot of flack for dropping its opposition to the DISCLOSE Act on the condition that it is shielded from the law’s provisions. But, in truth, it was simply responding to the incentives provided by a political system in which it is accepted that the government can limit speech with so-called "campaign finance" laws. Limiting the overall amount of speech puts the government in position to ration speech. The result is a zero-sum game in which groups are left to duke it out in the political process in order to determine who gets how much of the speech pie.

 

It’s no surprise that the victors will be those well-established powerful groups, like the NRA, that have the most political muscle. Smaller, less-established groups will inevitably lose out. (Remember that the next time someone tells you that "campaign finance reform" benefits the little guy.)

 

Yes, it’s outrageous that the NRA sold out the latter groups in order to guarantee its government-apportioned allotment of speech. But it’s a predictable result of what happens when Congress—having eschewed a free market in speech—arrogates to itself the power to dole out those allotments. Yet another reason why the public should demand a return to the United States’ first, and still best, policy on speech: "Congress shall make no law . . . abridging the freedom of speech."

It’s a sure bet that several of the Senators who sit on the Judiciary Committee will use Solicitor General Kagan’s confirmation hearing as a platform to continue attacking the Supreme Court’s decision in Citizens United v. FEC. For a primer on the top five myths promoted by the critics of this landmark victory for free speech—including the assertions that Citizens United is like Dred Scott and that it will allow corporations to "buy" our democracy—click here.

Welcome to Congress Shall Make No Law, a complement to the Institute for Justice’s fight, both in courts of law and the court of public opinion, to defend the freedom of speech from government encroachments—particularly so-called “campaign finance” laws.

 

Freedom of speech is one of the most important rights Americans enjoy, yet one of the least understood and most neglected. Like the air that we breathe, speech is so integral to our lives and so ubiquitous—think twitter, Facebook, blogs, cell phones, and email and much more—that most Americans take it for granted.

 

Yet we ignore the right to free speech at our peril. Indeed, it was not until 1931 that the Supreme Court first struck down a statute under the First Amendment, and the relatively vigorous legal protections our speech enjoys today have only existed for about 50 years.

When the U.S. Supreme Court stated in Citizens United that the FEC’s “business is to censor,” Justice Stevens protested in his dissent that this characterization was “nonsense” and “deeply disconcerting.” According to Justice Stevens, “[t]he FEC’s business is to administer and enforce the campaign finance laws.”

 

So who’s right? Well, both.

 

The FEC’s job is to enforce the campaign finance laws, but to do that, it has to censor speech. That is true whether or not the FEC is composed of a bunch of well-meaning bureaucrats who use smiley faces instead of “censored” stamps.

 

Imagine if every time The New York Times published an editorial about politics, the government cut a check to the New York Post, the Daily News, and The Wall Street Journal so they could respond.  The Times would rightly condemn this policy for discouraging that paper from exercising its First Amendment rights.

 

Nonetheless, the Times lauds Arizona’s so-called “Clean Elections” system, which does essentially the same thing to groups of citizens that merely want to speak about politics.  The Times also decries the U.S. Supreme Court’s decision to temporarily halt that system while the plaintiffs, represented by the Institute for Justice and the Goldwater Institute, ask the Court to review a decision of the Ninth U.S. Circuit Court of Appeals upholding that system.

 

Under Arizona’s law, when people spend money to advocate for a political candidate, the state gives a check for an equal amount of money to each of that candidate’s government-funded opponents.  If there are three government-funded opponents lined up against a candidate who raises money through voluntary contributions—that’s three checks sent to the traditional candidate’s opponents.  This system violates the First Amendment—no less than the hypothetical newspaper law described above would—and the Supreme Court was right to temporarily freeze it.  The Court should follow up by taking the case for consideration next term and striking down Arizona’s bad “Clean Elections” law for good.

The Supreme Court issued its opinion in Doe v. Reed today, holding that compelled disclosure of petition signatures must be analyzed under the First Amendment, but does not necessarily violate the First Amendment.  The Court remanded the case for further consideration.  The decision is 8-1 with Justice Thomas dissenting.  Several Justices filed concurring opinions.  We will have analysis of the opinion shortly.  The opinion is available here.

Imagine that a group of homeowners facing the threat of eminent domain for private development pools their money and takes out an ad in a local newspaper. The ad urges fellow citizens to tell their state representatives to vote for a bill that would stop such abuses statewide. Or imagine that a group of citizens concerned about government taxation and spending—or any other issue, for that matter—starts a website and a newsletter to inform others about pending legislation and spur them to contact legislators in advance of key votes. This is exactly the kind of citizen-to-citizen political speech about important issues of the day the First Amendment was intended to protect, right? 

 

Yes, but in at least 36 states this speech may be illegal without first registering with the government and then detailing your ongoing political activities through periodic (and mind-numbingly complex) reports. University of Missouri economist Jeff Milyo explained the problems that regulation of so-called “grassroots lobbying” creates for ordinary citizens in a report published by the Institute for Justice, Mowing Down the Grassroots, and he’s guest-blogging on the topic this week at the Volokh Conspiracy. 

 

IJ is challenging Washington’s restrictions on grassroots lobbying as a violation of the First Amendment. Prof. Milyo’s earlier research published by IJ examined how state laws create a thicket of red tape for people who want to speak out about issues on the ballot.

Today, the U.S. Supreme Court released its opinion in Doe v. Reed, a case that asked whether the First Amendment prohibited Washington State from ever disclosing the names and addresses of those who signed a petition to get an issue on the ballot.  In an 8-1 decision, the Court ruled against that broad challenge while reserving judgment on whether the petitioners in the case—who had signed a petition that sought the repeal of a bill that expanded same-sex partnership rights—were entitled to an as-applied exemption from the disclosure requirements on the grounds that they were potentially subject to threats and harassment.

After looking dead as a doornail as recently as one week ago, the unfortunately named “DISCLOSE Act” is showing signs of life. 

 

Yesterday the United States House of Representatives passed the DISCLOSE Act by a vote of 219-206.  Although only two Republicans ultimately supported the measure, thirty-six Democrats voted “no.”

 

Part of what spurred the DISCLOSE Act in the House was Senator Harry Reid’s promise that the Senate would take up the bill if it cleared the House.  Whether that turns out to be true, and whether the DISCLOSE Act can muster 60 “yes” votes in this tumultuous election season, is something that only time will tell.

 

For more IJ analysis of the DISCLOSE Act, click here.

Now that the DISCLOSE Act has passed the House, it’s worth considering anew the NRA’s decision not to oppose the bill in exchange for an exemption for itself. Perhaps news of the demise of DISCLOSE was a bit premature.

 

In a letter to The Washington Post, the NRA’s Chris Cox defends the group’s decision:

 

It’s easy to say the NRA should put the Second Amendment at risk over a First Amendment principle to protect other organizations—unless you work for the NRA and are sworn to defend the Second Amendment above all else. The NRA cannot defend the Second Amendment without the ability to speak.

 

But why would anyone defend the Second Amendment "above all else"?

 

As both a gun owner and a staunch advocate of individual rights, I’m a big fan of the Second Amendment. But gun rights are important because all rights are important. Compromising on the protection of any rights ultimately destroys protections for all of them. We can’t pick a list of favored rights and jettison protections for all the others—not if we want them to be treated as rights, rather than mere privileges doled out to us or taken away from us at the whim of a government official.

 

Unfortunately, that appears to be the NRA’s position—the First Amendment is expendable as long as we still have the Second. That’s both unprincipled and foolish, because without protections for free speech, we will end up losing all rights, including our right to keep and bear arms.

In his concurring opinion in Doe v. Reed, Justice Scalia concludes:

 

Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed.  For my part, I do not look forward to a society which . . . campaigns anonymously [ ] and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism.  This does not resemble the Home of the Brave.

 

Justice Scalia’s statement should shock any student of history.  Our “Home of the Brave” was birthed by anonymous pamphleteers such as Thomas Paine.  Indeed, our Constitution was ratified only after the anonymous “campaign” by Alexander Hamilton, John Jay and James Madison to sway voters through a series of essays known as The Federalist Papers, which were published in newspapers throughout New York under the pseudonym “Publius.”  Far from being protected from scrutiny, these essays engendered further anonymous campaigns by “Federal Farmer,” “Brutus,” “Cato” and “John DeWitt,” known today as The Anti-Federalist Papers—a campaign that resulted in our Bill of Rights.  Surely no one would suggest that these individuals lacked civic courage or that their endeavors doomed our democracy.  Why should the 137,000 citizens who signed a referendum petition to change state law be any different?

 

Real Clear Politics has a remarkable video of Rep. Hank Johnson (D-GA) speaking out in support of the DISCLOSE Act.  According to Rep. Johnson, the law is necessary because, otherwise, “we will see more Republicans getting elected” in the wake of the Supreme Court’s decision in Citizens United v. FEC.

 

It’s unusual to see an incumbent politician openly express his desire to use campaign finance regulation to stifle advocacy for his political opponents.  That sort of candor is usually reserved for closed-door meetings, like the one earlier this week at which DISCLOSE Act sponsor Rep. Chris Van Hollen (D-MD) is reported to have warned fellow Democrats that they “would find themselves in electoral trouble this fall should the bill not pass.”

 

Between these comments and the recent NRA carve-out, if the DISCLOSE Act passes, the judges who decide the inevitable legal challenge should be appropriately skeptical of the sponsors’ supposedly lofty goals.  Respect for the First Amendment requires nothing less.

Money can’t buy you love.  Or an election, it turns out.

 

A recent study that looks at self-funded candidates proves that “vanity candidacies” are just about as popular with the public as vanity books, vanity movies and other “look at me” projects.  In the past decade, self-funded candidates—i.e., those who raised more than half of all their campaign contributions from themselves or an immediate family member—have pumped more than $ 900 million into their own campaigns.  But despite these large amounts, self-financed candidates have prevailed only about 11 percent of the time.

 

This study demonstrates two important things.  The first is that elections are not a contest of who has more cash; candidates and their views do in fact matter.  The second is that when candidates don’t have to raise funds from the electorate—either because they self-fund or get their campaign cash from the government—they are not subject to the discipline of the political marketplace.  So what you often end up with are maladroit candidates whose views often fail to reflect those of their would-be constituents

There used to be a saying that a conservative is a liberal who has been mugged. On that theory, one might say that an opponent of campaign finance laws is, well, someone who has had to comply with them. It’s not a terribly principled reason to oppose the laws, perhaps, but we’ll take our converts where we can get them.

 

Mickey Kaus, who just ran for office in California, might be a candidate for just such a conversion. On his blog, he quotes an FEC publication informing him that even though he lost, his campaign committee “must continue to file periodic reports after submitting a termination report until you receive Commission approval for termination.”

 

Got that? You need FEC permission to stop being a committee. (God forbid the IRS gets wind of this. We all might need the government’s permission to die).

 

In Citizens United v. FEC, the U.S. Supreme Court invalidated a major part of the Bipartisan Campaign Reform Act of 2002, also known as McCain-Feingold, which banned corporations and unions from running certain types of political advertisements close to elections.  Today the Supreme Court summarily rejected (.pdf) a challenge to another major part of McCain-Feingold, the so-called “soft-money ban,” which limits the amount of money that individuals may donate to political parties.  The case is Republican National Committee v. FEC, No. 09-1287.

 

Lovers of liberty needn’t worry.  As Professor Rick Hasen notes, the Court’s one-sentence order does not signal a reversal of its recent trend in favor of greater protection for free speech and against campaign finance laws.  Challenges to McCain-Feingold are subject to a special procedure—the cases are tried before a three-judge panel, and the losing party has a direct right of appeal to the Supreme Court.  What this means in practice is that if the Court rejects the case, as it did here, that counts as a summary affirmance of the three-judge panel’s opinion.  Because the Court does not provide the reasoning for the summary affirmance, the ruling is not necessarily an endorsement of the lower court’s decision

 

So what can we take away from the summary affirmance?  Not much.  We know that three Justices—Kennedy, Scalia, and Thomas—opposed the summary affirmance and would have had the case argued before the Court, presumably to reverse the lower court and strike down the soft money ban as it applied to the Republican National Committee.  Beyond that, the only take-away is that the soft-money ban has been granted at least a temporary reprieve.  But it will undoubtedly be subject to future challenges, and this summary affirmance does not foreclose the Court from holding the law unconstitutional in the next case to raise the issue.

 

Additional commentary from our friends at the Center for Competitive Politics is available here.

Tom Bowden blogs at Voices for Reason about the many states that offer subsidies to filmmakers and the fact that those subsidies increasingly come with strings attached. Tom makes the quite sensible point that subsidies are a violation of taxpayers’ rights not to have to fund films at all, let alone those with which they might disagree.  

 

But this should also remind us that when the government pays the piper, it gets to call the tune. We should keep that in mind as the challenge to Arizona’s misnamed “Clean Elections” Act makes its way to the U.S. Supreme Court next term. (The case is being litigated by the Institute for Justice and the Goldwater Institute, which will be filing petitions for review in the U.S. Supreme Court later this summer.)

 

During his opening statement yesterday at Solicitor General Kagan’s confirmation hearings, Senator Al Franken unsurprisingly took the opportunity to criticize the U.S. Supreme Court’s decision in Citizens United v. FEC. Arguing that the Motor Vehicle Safety Act and the Clean Air Act wouldn’t have passed if companies like General Motors and Standard Oil had been allowed to run ads right before election season against the politicians who supported that legislation, he concluded that:

 

So here’s my point, General Kagan: Citizens United isn’t just about election law. It isn’t just about campaign finance.

 

It’s about seat belts. It’s about clean air and clean water. It’s about energy policy and the rights of workers and investors. It’s about health care. It’s about our ability to pass laws that protect the American people even if it hurts the corporate bottom line.

 

Put aside for a moment Senator Franken’s apparent belief—shared by other advocates of “campaign finance reform”—that the American people aren’t smart enough to hear corporations’ arguments on policy issues and then decide for themselves. (For my rebuttal of this ridiculous claim, click here.) Also put aside the fact that corporations hardly have a monolithic view on all of the issues he listed.

 

The most important thing about Senator Franken’s statement is that it is a clear admission by him that he favors restrictions on corporations' speech because he does not like the policy results that their speech may produce. Presumably, if every corporation liked all the policies that he does, he’d be fine with them speaking as much as possible.

 

Sorry, Senator Franken. The First Amendment doesn’t say, “Congress shall make no law . . . abridging the freedom of speech, except when Congress doesn’t like what the speaker has to say.”

At her blog, Crossroads, CBS News Chief Legal Correspondent Jan Crawford is commenting on the issues discussed during Solicitor General Kagan’s confirmation hearings. In her most recent post, she offers a “Reality Check” in rebuttal to the assertion that Citizens United reversed over 100 years of precedent and was an example of the Roberts Court “cozying up to corporations.”