John McCain is walking a tightrope.  In his previous life, he served as the lead Republican voice in favor of campaign finance “reform” and was one of the key sponsors of the Bipartisan Campaign Reform Act of 2002.  In fact, his role in that legislation was so vital that the law is frequently referred to as “McCain-Feingold.”

 

Among other things, one provision of McCain-Feingold banned corporations and unions from running “electioneering communications”—advertisements that mentioned federal candidates by name within a certain number of days before an election.  During oral arguments in Citizens United v. FEC last year, Justice Scalia said, “I doubt that one can expect a body of incumbents to draw election restrictions that do not favor incumbents.”  Senator McCain took umbrage at that and decried Scalia’s comment as ”an affront” to the ”decent, honorable men and women who have served this nation in these halls for well over 200 years.”

 

The Senator McCain of 2009 therefore saw “McCain-Feingold” as the product of a publicly spirited Congress that is only looking out for Americans’ best interests.  So he must view other politicians’ campaign finance efforts with equal magnanimity, right?  Not quite.  After the House passed the DISCLOSE Act last Friday, McCain jabbed, “It’s no surprise that Democrats craft a bill that favors their supporters.”

 

So I guess the rose-colored glasses are off now.  Here’s to hoping that Senator McCain has had an epiphany and comes to realize that when Members of Congress legislate on campaign finance matters, they typically design the laws to give themselves a leg up on their political opponents.  The Founders knew of this constant temptation, which is why they said in the First Amendment that “Congress shall make no law . . . abridging the freedom of speech.”

Last week I, along with Ilya Shapiro of Cato, debated Rick Hasen and Jamin Raskin over the Citizens United decision.  Here's a video of the debate.  Enjoy.

 

 

 

 

Hans von Spakovsky has a terrific article at Heritage's blog arguing that the DISLCOSE Act is the modern equivalent of the Alien and Sedition Acts.  Check it out.

The Boston Globe reports, somewhat belatedly, on the Federal Election Commission’s decision last month to classify the nonprofit group Citizens United as a “press entity.”  The consequence of that decision is that Citizens United—which has to date produced 14 documentaries—is spared from the intrusive and burdensome disclosure requirements that often apply to groups that spend money on political speech.

 

Predictably, supporters of stringent campaign finance laws are dismayed.  What’s remarkable, though, is that none of them express concerns with the press exemption generally.  Yet the very existence of the press exemption seriously undermines the case for campaign finance disclosure for independent groups.

 

When a traditional press entity like, say, the Boston Globe, publishes a political editorial, readers don’t have access to information about the paper’s financing.  Instead, they have to evaluate those political arguments on their merits.  So-called “reformers” seem to have no problem with this.  But if we trust the public to rationally evaluate corporate messages that just happen to come from the institutional press, there is absolutely no reason why we should not trust the public to rationally evaluate messages from nontraditional forms of media, whether it be a blog post, a 30-second television ad, or a two-hour documentary.

 

The real outrage is not that Citizens United was deemed worthy of the press exemption, but that others who engage in equally valid exercises of their First Amendment rights do not enjoy that same privilege.  No one should have to prove to a government bureaucrat that they have earned the right to speak free from government burdens—the First Amendment guarantees that right to all of us.

Politico recently reported that Senator Chuck Schumer has been sending out fundraising letters.  No problem there, but in his pitch, Schumer again admits why he sponsored the “DISCLOSE” Act in the U.S. Senate.  His goal is “reining in corporate spending on political ads through the DISCLOSE Act.”

 

Hmm.  A politician wants to silence his opposition and is willing to use government force to do so.  It is a shame we don’t have a Constitution in place that would stop him from abusing his power and U.S. Supreme Court precedents directly on point that would say such actions would be unconstitutional.

 

Oh, wait.  We do.

 

Schumer has said that the “deterrent effect” that the DISCLOSE Act would have on corporations and other groups’ speech “should not be underestimated.”  But as we at IJ (and more importantly, the Supreme Court) have said time and again, it is not for the government to decide who may speak and who must remain silent.  The First Amendment protects the freedom of speech for all Americans, not just those whom the party in power likes.

 

Image Souce: Atomische • Tom Giebel

It looks like people are waking up to the fact that the DISCLOSE Act’s whole raison d’etre is to squelch speech.  As DISCLOSE made its way through the House, only a few organizations were talking about how its sponsors and supporters frankly admitted that they were trying out to silence the voices of people and groups they didn’t like.

 

In recent days, though, that trickle of opposition has become a torrent.  Editorial boards, opinion writers, and columnists from across the country and on both sides of the political aisle are criticizing the DISCLOSE Act and the chilling effect it would have on free speech.  Some have even noted that the DISCLOSE Act, if passed, would kill off the traditional 30 second political ad.  After all, who wants to pay for an ad in which almost half the time must be devoted to government-mandated disclaimers?

 

It’s good to see that more and more people are starting to talk about the DISCLOSE Act.  While the House has passed the DISCLOSE Act, the Senate has yet to take up the bill.  As the next act in this play unfolds, Americans should continue to stand up in favor of the First Amendment and ensure that everyone, not just certain entrenched interests, can speak freely about candidates and the issues that they care about the most.

Along with Joseph Gay, one of IJ’s Constitutional Law Fellows, I’ve got an op-ed on the DISCLOSE Act in today’s Daily Caller. It begins:

 

What’s more important than putting together a new budget for the federal government? If you’re one of the 219 representatives whose vote secured the passage of the so-called “DISCLOSE Act” in the House last Thursday, the answer is simple:  providing incumbents with job security.

 

For the rest, click here.  

Proponents of campaign finance regulation often defend the constitutionality of their proposals with the slogan “money isn’t speech.”  But as scholars like Eugene Volokh have recognized, this facile argument is easily debunked by applying it to other constitutional rights:

 

Likewise, money isn’t education, and it isn’t lawyering. Yet a law that capped private school tuitions at $2000 (not just limited the amount of government-provided scholarships, but capped private spending by parents for tuition) would be a serious, likely unconstitutional, burden on the right to educate one’s child at a private school. Likewise, a law that barred wealthy defendants from spending more than $20,000 — or even $200,000 — for assistance of counsel would violate the Sixth Amendment. Even if for some reason you thought that these laws should be upheld, the response that “it is quite wrong to equate money and [education / lawyering]” would be an unsound response.

 

Moreover, this idea—that money is often a critical component to the meaningful exercise of rights—is hardly a modern insight.  Our Founding Fathers were well aware of the connection between property and political advocacy.  Indeed, this recognition is reflected in the closing words of the Declaration of Independence:

 

And for the support of this Declaration, with a firm Reliance on the Protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.

 

Here’s wishing everyone a safe and happy Independence Day.

“We want the DISCLOSE Act” is a website at which people can be "citizen co-sponsors" of the Act by signing an online petition.  The site contains a list of these "co-sponsors," but it provides an option, taken advantage of by several signers, to remain anonymous.  Might this option exist because the folks behind the petition effort—Senators Chuck Schumer, Russ Feingold, and Patrick Leahy—know that more people will sign if they don’t have to reveal their personal information to the public?

 

Of course it does.  Something to keep in mind the next time an advocate of mandatory disclosure laws—including the DISCLOSE Act, which Senator Schumer has admitted is intended to deter corporations from speaking—tells you they don’t chill speech.

When the Supreme Court issued its decision in Citizens United v. FEC, many said that it would lead to corporations using their vast treasuries to overwhelm their competition. The New York Times, for instance, said that the opinion “opened the floodgates for big business and special-interest dollars to overwhelm American politics.”

 

The evidence from several months later, though, shows that these dire predictions have not quite panned out. The Washington Post and Mother Jones have both reported about a number of new organizations that have begun to speak in the wake of Citizens United.  Rather than General Electric and Microsoft doing the talking, though, it’s been the AFL-CIO, the SEIU and the AFSCME. All three unions have run radio and television ads in recent primaries that explicitly called for the election or defeat of candidates.

 

This kind of “express advocacy” was illegal until the Supreme Court held in Citizens United that the First Amendment prohibits laws, passed by Congress, that prevent groups of citizens from speaking out during elections. Hopefully other groups - including corporations - will soon join these unions and make their voices heard.  After all, the Supreme Court in Citizens United said that “it is our law and our tradition that more speech, not less, is the governing rule.”  Perhaps if groups continue to speak out and the republic does not end as some have predicted, we will one day come to view the campaign finance laws in much the same way we now view the alien and sedition acts.

 

Image Source: Beige Alert

There’s a new campaign finance lawsuit challenging the State of Minnesota’s various restrictions on corporations engaging in political speech.  The case, Minnesota Citizens Concerned for Life, et al. v. Swanson, et al., 10-cv-2938, was filed yesterday in the U.S. District of Minnesota.  Judge Donovan Frank is the judge.

 

According to the complaint (not publically available online yet), the plaintiffs argue that Minnesota’s new law, although recently amended in the wake of the Supreme Court’s ruling in Citizens United, nevertheless violates the First Amendment.  This is because, among other things, it requires corporations to spend their money advocating the election or defeat of a candidate through a political fund and not directly from their treasuries.  This argument relies upon the Court’s statements in Citizens United that forming separate entities, such as political action committees (“PACs”) “are burdensome alternatives; they are expensive to administer and subject to extensive regulations.”  It’s similar to the argument IJ made, in the non-corporate context, in SpeechNow.org v. FEC.

 

Interestingly, the complaint also challenges Minnesota’s ban on corporations directly contributing money to candidates.

 

Jim Bopp of the James Madison Center is an attorney on the case, as is the Minnesota firm of Mohrman & Kaardal.

Over at the Volokh Conspiracy, Eugene Volokh has a couple of interesting observations on the Washington Post's report that unions are outspending corporations on campaign ads.

In a new case that builds off of IJ’s challenge to Arizona’s so-called “clean elections” system, Florida gubernatorial candidate Rick Scott is challenging that state’s similar system of taxpayer-financed campaigns.  Both  states' laws discourage nonparticipating candidates from robustly exercising their First Amendment rights, because once a nonparticipating candidate  spends more than a certain amount  to speak out to the electorate, the government starts writing checks directly to his opponent.  As political scientist David Primo documented (.pdf) in the Arizona case, the constant risk of triggering these matching funds creates incentives to delay or withhold spending on political speech, skewing the political debate.

 

In addition to Mr. Scott’s lawsuit, Floridians will have the opportunity to vote in November for a constitutional amendment that would repeal Florida’s system of taxpayer-financed elections.  And if the Supreme Court accepts review of IJ’s challenge to Arizona’s law—as it has hinted it might—it could invalidate these schemes nationwide.  One way or another, it looks like the days of taxpayer funds being used to squelch political speech in Florida are numbered.

Click here to go to his new column on these topics. He begins:

 

Two splendid recent developments have highlighted how campaign finance "reforms" have become the disease they pretend to cure. In Arizona and in Congress, measures ostensibly aimed at eliminating corruption or the "appearance" thereof illustrate the corruption inherent in incumbents writing laws that regulate political competition by rationing political speech.

That’s exactly right: The idea that incumbents write “campaign finance” laws with no eye toward protecting their reelection prospects is—as we have previously noted—absurd.  

 

For more of our recent commentary on the DISCLOSE Act, click here, here, and here.

 

IJ is challenging the matching funds provision of Arizona’s “Clean Elections” system. For some of our recent commentary on that system, click here and here.

The plaintiffs in Minnesota Citizens Concerned for Life, et al. v. Swanson, et al., 10-cv-2938, which we discussed here last week, have filed a motion for a preliminary injunction.  The motion is scheduled to be heard before the district court on August 20, 2010, although the plaintiffs have asked for expedited consideration.

 

The motion argues, among other things, that after Citizens United “The only constitutionally cognizable interest in limiting contributions is the interest in preventing quid-pro-quo corruption.”  This interest, under the seminal case Buckley v. Valeo (1976), is only implicated with “large” contributions, so contributions with a per-donor cap, such as the $2,300 cap in the last federal election cycle, satisfy that interest, even when a corporation is giving the money to a party or candidate.  Thus, according to the motion, corporations should be able to give money directly to parties and candidates, something currently illegal under Minnesota, and federal, law.

 

We’ll keep a close eye on this case for our readers.

The Los Angeles Times reports on spending by independent groups in three California elections, raising alarm that “insurance companies, lawyers and other interests were calling most of the shots in the three campaigns.”  These concerns were echoed by Dan Schnur, chairman of the California Fair Political Practices Commission (FPPC), who reacted to this independent speech by claiming that it “makes a mockery of the rules designed to create a level playing field.”

 

These sorts of overwrought claims are distressingly common in reporting on campaign finance, and this isn’t the first time the FPPC has been critical of the role of independent speech in elections (see, for example, their 2008 report on the phenomenon, the cover of which features the California capital building being menaced by a giant gorilla hurling $100 bills).  But these claims also fundamentally misunderstand the role that independent speech plays in elections.

 

Contrary to the view of many proponents of campaign finance regulation, voters are not automatons—interest groups cannot simply pour opinions into their heads.  Voters must be persuaded, and the groups profiled in the Los Angeles Times article are simply attempting, through independent political advocacy, to persuade voters to take action at the ballot box.  Those efforts may succeed or fail and, as the FPPC’s 2008 report shows, such efforts often do fail.  But as the Supreme Court recognized in Citizens United v. FEC (.pdf), “[t]he fact that a corporation, or any other speaker, is willing to spend money to try to persuade voters presupposes that the people have the ultimate influence over elected officials.”  In other words, it’s the voters who call the shots.

According to this recent report from The Hill, after Senator Scott Brown’s (R-MA) decision to oppose the DISCLOSE Act, the bill’s fate now rests in the hands of the following senators: Olympia Snowe (R-ME), Susan Collins (R-ME), Blanche Lincoln (D-AR) and Ben Nelson (D-NE):

 

Democrats had hoped Brown would provide key support to move forward with the Disclose Act, which has been criticized by many Republicans and free-market groups as infringing on free speech. With Democrats in control of only 59 Senate seats, they need at least one Republican to reach the 60 votes necessary to overcome a filibuster and move forward with the bill.

 

With their hopes for a Brown yes vote now dashed, Democrats and watchdog groups are training their lobbying fire on GOP Sens. Olympia Snowe and Susan Collins, two Maine centrists who along with Brown have played decisive roles in a bevy of controversial summer bills.

 

The pair have been vocal supporters of past campaign-finance bills but have been tight-lipped about how they plan to vote on the Disclose Act, although Snowe denounced the Supreme Court decision after it was first issued.

 

Their offices did not respond to requests for comment from The Hill.

 

Democrats also could lose the support of two centrist Democrats, Sens. Ben Nelson (Neb.) and Blanche Lincoln (Ark.) — who is locked in a tight reelection contest — making Republican support even more crucial to overcoming an expected GOP filibuster.

 

Furthermore, the Daily Caller quotes Dianne Feinstein (D-CA) as saying on Tuesday that she won’t vote for the DISCLOSE Act as long as long as it has exemptions for the NRA and other groups. Last month, Senator Frank Lautenburg (D-NJ) said that he would not vote for the Act if it contained the NRA carve-out.

 

As we’ve noted on various occasions, the DISCLOSE Act is a blatant attempt to stifle speech in order to protect incumbents’ reelection prospects. Whether it lives or dies is up to the above-mentioned Senators. If they still need help making up their minds, we suggest that they dust off their copies of the Constitution and read a certain amendment that talks about how they’re supposed to “make no law . . . abridging the freedom of speech.”

Yesterday the U.S. Circuit Court of Appeals for the Second Circuit issued an important ruling (.pdf) for First Amendment rights, striking down Connecticut’s unconstitutional “matching funds” law in the case of Green Party of Connecticut v. Garfield.  The court specifically rejected the Ninth Circuit’s decision in McComish v. Bennett that refused to strike down Arizona’s largely identical matching funds scheme.  The Institute for Justice, which has been challenging Arizona’s law in McComish, wrote a friend-of-the-court brief (.pdf) in the Second Circuit in support of the victorious Green Party.

 

As we’ve described previously on this blog, matching funds discourage privately funded candidates and outside groups from speaking because, if those groups spend more than a certain amount on political speech, the government starts cutting checks directly to their government-financed opponents.  The Second Circuit’s ruling deepens a split among the federal courts of appeals on whether matching funds are constitutional, making it all the more likely that the U.S. Supreme Court will grant IJ’s forthcoming appeal in the McComish case.

 

If the Supreme Court takes on the issue—as it should—matching funds will likely be held unconstitutional.  And that’s not just our opinion—as the Associated Press reports, even so-called “reformers” are starting to look for alternatives:

 

“The handwriting was on the wall with the trigger provisions” when the Supreme Court made its ruling [temporarily halting Arizona’s matching funds], said Karen Hobert Flynn, vice president for state operations at Common Cause and a Connecticut resident. “They signaled that they don't like trigger provisions and they're on their way out.”

Nick Nyhart, president and CEO of Public Campaign, a Washington, D.C.-based public financing advocacy group, said there are other ways to help publicly financed candidates who face wealthy opponents.

 

We will continue to keep our readers updated as we move towards appealing McComish to the Supreme Court.

In response to intense lobbying by a number of campaign “reform” groups, Senator Scott Brown has said that he will oppose the DISCLOSE Act because it “advances the political agenda of the majority party and special interests in an effort to gain a tactical and political advantage little more than 100 days before an election.” Brown contrasts DISCLOSE with McCain-Feingold, which he claims was “an honest attempt to reform campaign finance laws.”

 

One can take issue with Brown’s view of McCain-Feingold—indeed, during debates over the law, members of Congress expressed more disdain for the negative ads it banned than for the corruption it was supposed to prevent—but I’m willing to cut Brown some slack because he at least understands that DISCLOSE is all about partisan politics. In fact, I’d go a lot farther than that. The DISCLOSE Act shows that the desire to censor speech is alive and well among America’s political elites.

 

Of course, campaign reform groups are not giving up easily. As Roll Call reports, they’ve vowed to continue pressuring Brown “through a combination of personal lobbying and messaging efforts aimed at Massachusetts.” (For some reason, reformers never have a problem with efforts like these when they are carried out by people who support their agenda. But I digress.) Ironically, they’ve even threatened to “make the case over the coming weeks that his opposition is tantamount to supporting the kind of ‘Swift Boat’ ads that helped sink the 2004 presidential campaign of Brown’s home-state colleague, Sen. John Kerry (D).”

 

Wait, doesn’t that count as “Swift Boating” itself? This is all so confusing. What isn’t confusing is the contempt supporters of DISCLOSE have for the First Amendment and for anyone who dares disagree with their political agendas.

 

According to this report in The Hill today, it is looking less likely that Senators Olympia Snowe (R-ME) and Susan Collins (R-ME) will support the DISCLOSE Act. But, as the wisdom of Yogi Berra teaches us, the fight to defeat this speech-squelching legislation isn’t over until it’s over.