Congress Shall Make No Law...

    Over at ACSblog, Ohio State law professor Dan Tokaji argues that it’s time for campaign finance “reformers” to proclaim proudly that “equality,” rather than “corruption,” is the reason they favor restricting political speech:


    Acceptance of equality as a rationale won't make hard questions surrounding campaign finance regulation disappear. It will, however, ensure that we are asking the right question: Whether particular regulations will really promote political equality, without unduly infringing other values like fair competition. The time has come for U.S. reformers to embrace equality openly, rather than continuing to disguise it in the garb of anticorruption. This approach will not find favor before the current U.S. Supreme Court. In the long run, however, it will lead us toward a healthier democracy that more closely approaches the ideal of equality for all citizens, regardless of wealth.


    We agree that “reformers” should be more candid about how the equality rationale is at the heart of their efforts to limit speech. But Professor Tokaji fails to realize that there’s a very good public-relations reason for “reformers” to keep that rationale under wraps: It’s pretty obvious that it will inevitably lead to censorship.


    For example, under the equality rationale, there’s no reason the government couldn’t silence media outlets and outspoken critics of the government’s policies on the ground that those speakers aren’t promoting political equality—defined by the government as the implementation of its policies. If the public rejects those policies, then speech must be limited further to avoid what the government deems to be inegalitarian outcomes.


    These logical implications of the equality rationale do not, to say the least, enhance the marketability of campaign finance “reform.” 


    Professor Tokaji does not grapple with these implications.  Perhaps he hopes that wise and benevolent leaders will be fair in their policing of political speech, including speech they don’t like, but he should know better. Perhaps he hopes that the only leaders who will exercise this power will be those who promote his notion of “equality,” but, again, he should know better.


    Thankfully, the Founding Fathers did know better. That’s why the First Amendment commands that “Congress shall make no law . . . abridging the freedom of speech.” Whether regulations comply with it—rather than whether they promote an amorphous notion of political equality—is the right question to ask. Until he does so, Professor Tokaji (and other proponents of the equality rationale) will keep coming up with the wrong answers about the government’s power to limit political speech.

    Republicans in Congress have responded to the apparent desire among voters for smaller government with a proposal to eliminate the public financing system for presidential elections. Our friends over at the Center for Competitive Politics present some very compelling reasons for ending the program. As they point out, doing so would save a minimum of $617 million over ten years on a program that, after President Obama declined funds in 2008, is unlikely to draw any interest among serious candidates in the future without a substantial increase in the program. Brad Smith estimates that the fund would need at least $750 million to entice candidates to participate, which is more than the budgets of the Corporation for Public Broadcasting, the Consumer Products Safety Commission, the U.S. Commission on Civil Rights, the Holocaust Museum, and the FEC combined. Of course, unserious candidates seem to love public financing. As CCP points out, such luminaries as Alan Cranston of Keating Five fame, ex-Gov. Milton Schapp of Pennsylvania, who was later convicted of fraud, and perenial political gadfly Lyndon LaRouche have received financing under the program.


    Another very good reason to eliminate the program is that the Constitution nowhere authorizes Congress to give taxpayer dollars to presidential candidates. Admittedly, we are in the minority in making this claim. In 1937, the Supreme Court regrettably upheld Congress’s power to spend money on anything deemed to serve the “general welfare,” and it later applied that reasoning specifically to the presidential public financing program in Buckley v. Valeo in 1976. But it’s never too late to get things right, and fortunately, the Constitution is on our side. (Toward that end, yesterday IJ launched the Center for Judicial Engagement, which is dedicated to demonstrating that the courts ought to take the Constitution, and, in particular, the limits on the size and scope of government, seriously. You can read more about it here.)


    Finally, public financing of campaigns inevitably leads to restrictions or burdens on freedom of speech. For example, Arizona has set up a system that effectively punishes privately funded candidates and independent groups for spending more on their campaigns than their publicly funded opponents. The system is designed to force all candidates into the public system, where their spending is “leveled” and their voices equalized. The government has no place regulating speech in this way. IJ, along with the Goldwater Institute is challenging that system before the U.S. Supreme Court.


    As Brad Smith says, “Congress should return to First Amendment first principles and create a doctrine of separation of campaign and state.” Politicians have been talking the limited government talk for months now. It’s time for them to walk the walk.

    Today, Citizens United v. FEC turns one year old. That’s cause for celebration.


    As readers of this blog know, in Citizens United the Supreme Court vindicated free-speech rights by holding that the First Amendment prevents the government from banning corporations from spending their money to express their views about candidates for office. The Court’s decision was an emphatic reminder that, under the First Amendment, the government may not censor political speech, no matter who is doing the speaking: “When Government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful.”


    There will be time enough to document, rebut—and yes, laugh at—the continuing hysterical attacks on Citizens United by campaign finance “reformers.” But for now, I hope you’ll join Congress Shall Make No Law in celebrating Citizen United’s first birthday by changing your Facebook status to “Happy Birthday, Citizens United v. FEC.” And when you’re at happy hour this evening, please raise a glass to that decision’s robust defense of free speech.


    Image source: Zellaby

    “People for the American Way” has released a deeply ridiculous video that purports to explain the impact of Citizens United.  The takeaway seems to be that the biggest beneficiaries of the Citizens United ruling are homophobes, anti-Semites and people who want to poison babies (seriously, we aren’t making this up).  Their solution?  Amend the Constitution to restrict free speech.




    Even setting aside PFAW’s outrageous hyperbole, their calls to restrict speech should offend all Americans.  While PFAW positions itself as a defender of democracy, the entire premise underlying their video is that voters are too stupid to elect the “right” candidates if they are also permitted to listen to corporate speech.  And PFAW’s proposed “solution”—silencing disfavored speakers to “improve” democracy—is nothing more than what the U.S. Supreme Court correctly described as censorship for the purpose of thought control.


    If you agree with the Supreme Court that “the First Amendment confirms the freedom to think for ourselves,” then make your voice heard by letting PFAW know what you think of their video.

    At a time when proponents of stricter campaign finance regulations continually howl about the increasing costs of political campaigns, you would think that a grassroots political group would be applauded for trying to keep costs down.  But according to a Washington Post story released late last week, the organizers of a write-in campaign for former D.C. Mayor Adrian Fenty may soon be fined $18,500 for violating campaign finance laws.


    Their crime?  Recycling.


    It seems that the Save D.C. Now Committee “used unused campaign signs, leaflets and stickers to try to get voters to write in Fenty instead of supporting [Vincent] Gray.”  The materials were left over from Fenty’s unsuccessful primary campaign.


    recycleGray’s campaign lawyer responded by filing a campaign finance complaint against the group.  “They alleged that campaign finance laws forbid a political community [sic] from using materials paid for by another.”


    Regardless of the legal merit of these allegations, this is yet another example of how campaign finance laws—ostensibly passed to limit the “corrupting” influence of big money on politics—make genuine grassroots political campaigning virtually impossible.  The Save D.C. Now Committee raised a grand total of $7,000.  They are now being fined more than twice that, and for what?  For not letting perfectly usable political signs and stickers go into the garbage.


    The Office of Campaign Finance still has an opportunity to reverse this ridiculous fine.  Here’s hoping they do.


    Image source: TheTruthAbout

    Linda Greenhouse uses the occasion of congressional Republicans reading the Constitution on the House floor to take a jab at the Supreme Court’s ruling in Citizens United v. FEC and the constitutional fidelity of its supporters.  Says Greenhouse:


    It was just last January, in the Citizens United case, that the court granted corporations a robust First Amendment right, as citizens, to spend money in support of or against candidates in federal elections.


    House Republicans could read the Constitution every day between now and July 4 without finding a word about corporate citizenship. Funny, but it just doesn’t seem to be there.  Call it a problem of democracy.


    This critique turns the Constitution on its head.  It should surprise no one that the Constitution does not explicitly address the right of citizens to speak through the corporate form.  Indeed, the genius of our constitutional system is that it makes such an explicit statement unnecessary, because the rights we enjoy as Americans are numerous and indefinite, while the powers of Congress are limited and enumerated.


    We_the_peopleFor those who complain that Citizens United lacks a basis in the text of the Constitution, we ask, “What is the textual foundation for Congress’ power to ban independent corporate speech?”  One could, after all, read the First Amendment every day between now and July 4 without finding a single exception to the plain command that “Congress shall make no law . . . abridging the freedom of speech.”  One could also scrutinize Article I of the Constitution—which establishes the powers of Congress—in search of an enumerated power that grants Congress the authority to regulate the independent speech of any group of people, but this search too will turn up nothing.


    If anyone is ignoring the text of the Constitution, it is the opponents of Citizens United.  A faithful reading of that text makes clear that Congress lacks the authority to restrict political speech, whatever the source.


    Image source: Roberthuffstutter

    Check out my colleague Bill Maurer's guest column in the Seattle Times warning the Washington State Legislature not to convert a political scandal into speech-squelching legislation.

    Will the new Congress respect free speech, or will its members act like they went to Camp Politics?  Below, check out IJ’s new video of bonus footage not seen in its original Camp Politics video, which explained how politicians learn how to circumvent the First Amendment with campaign finance laws.


    More Lessons From Camp Politics

    Will the new Congress respect free speech, or will its members act like they went to Camp Politics?  Below, check out IJ’s new video of bonus footage not seen in its original Camp Politics video, which explained how politicians learn how to circumvent the First Amendment with campaign finance laws.

    [Embed of new video here].  

    More Lessons From Camp Politics


    Will the new Congress respect free speech, or will its members act like they went to Camp Politics?  Below, check out IJ’s new video of bonus footage not seen in its original Camp Politics video, which explained how politicians learn how to circumvent the First Amendment with campaign finance laws.


    [Embed of new video here].