Congress Shall Make No Law...

    Over the weekend we blogged about Justice Ruth Bader Ginsburg’s statement regarding a stay issued by the U.S. Supreme Court in American Tradition Partnership, Inc. v. Bullock, the decision in which the Montana Supreme Court thumbed its nose at the ruling in Citizens United. Writing at the blog of the Center for Competitive Politics, friend of IJ Brad Smith has a great post taking down claims that Justice Ginsburg’s statement indicates that she is “ready to speak truth to power” when—as is widely expected—the Court takes the case. As Smith notes:

     

    Justice Ginsburg is a member of the Supreme Court of the United States. She is power. Truth? What truth was there in her little Western Tradition Partnership concurrence? Didn’t she just offer an opinion, slandering both donors and candidates, without any facts at all?

     

    Well said. The rest of Smith’s post is available here. And be sure to check out the rest of CCP’s blog, which provides consistently great coverage of campaign finance news from a pro-First Amendment perspective.

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    The U.S. Supreme Court has unanimously stayed the decision of the Montana Supreme Court in American Tradition Partnership, Inc. v. Bullock, in which the Montana court explicitly thumbed its nose at the U.S. Supreme Court and the Citizens United decision. The stay itself is not surprising—most assumed that the Court would stay the Montana court’s version of jury nullification and many expect the Supreme Court to summarily reverse the lower court.

     

    What is surprising, however, is the separate statement of Justice Ginsburg, joined by Justice Breyer (notably, Justices Sotomayor and Kagan did not join the separate statement). Justice Ginsburg urges the Court to grant certiorari and reexamine the Court’s conclusion in Citizens United that independent expenditures do not cause corruption “in light of the huge sums currently deployed to buy candidates’ allegiances.”

     

    What a cynical and insulting way to describe the activities of Americans, like IJ clients SpeechNow.org and David Keating, who use their resources to attempt to persuade their fellow citizens of the wisdom of their political view.

     

    Interestingly, Justice Ginsburg cites no source for this remarkable accusation and it is not clear if she means that all expenditures are designed to “buy candidates’ allegiances” or just some. Regardless, if Justice Ginsburg believes that people spend money in elections “to buy candidates’ allegiances” and not to persuade others that their political view is correct, then her view that the government should be able to throw people in prison for producing a film or book about politics finally makes sense. Fortunately, other justices on the Court have, for now, more respect for American voters, candidates, and political activists that Justices Ginsburg and Breyer.

     

    Perennial campaign-finance scold Fred Wertheimer from Democracy 21 has never seen a speech restriction he didn’t like.  So it comes as no surprise that Wertheimer recently published an opinion piece on CNN.com declaring the Super PACs are, in his words, “a disaster for democracy” and an “unmitigated disaster.”  Why?  Well, because Super PACs let certain people speak more than Wertheimer likes.  So his proposed answer is to resurrect the long-dead DISCLOSE Act from the grave in order to get those disfavored speakers to shut up.

     

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    In its most-recent incarnation, the DISCLOSE Act would force independent groups—whose speech does not raise any specter of corruption—to list their top five contributors in each advertisement. And it would require the head of those groups to appear on camera and say that their organization approved the message. If those provisions seem pointless because 1) Super PACs already disclose the identity of their contributors and 2) the group wouldn’t have put out the advertisement unless it agreed with its message, you’re right. The dirty secret of this DISCLOSE Act, like its predecessor, is that it’s not about information; it’s about chilling speech. As my colleague Paul Sherman previously noted, “For the reform lobby, the fact that some groups might stop speaking rather than comply with these new burdens is a feature, not a bug.”

     

    The chance that this newest speech-squelching legislation will become law is between slim and none, and slim just left town.  That’s a good thing; although Wertheimer complains that Super PACs let “a relatively few super-rich individuals and other wealthy interests to have greatly magnified and undue influence over the results of our elections,” that view betrays a fundamental misunderstanding of how elections actually work.

     

    The speech police see voters as empty vessels that candidates and groups can hoodwink and manipulate.  That condescending view of the American electorate, however, is just plain wrong.  Instead, the whole purpose of political campaigns is persuasion.  Candidates and groups can only present information and arguments to the public.  It is ultimately the voter who weighs that information and decides whom to cast a ballot for.  Super PACs help improve democracy by giving voters another source of information to consider.

     

    It’s odd to say that people can be made better off by limiting the voices they can hear from and consider, but that’s the argument that Wertheimer and his ilk make.  Fortunately for Americans, “[t]he First Amendment confirms the freedom to think for ourselves” and to hear from everyone, Super PACs included.

    In the world of public interest law, nothing is possible without clients who are willing to stand up for their rights against overwhelming odds. The Institute for Justice and the Center for Competitive Politics were privileged to have two such clients in Edward Crane and David Keating.

     

    Crane and Keating have a long history of fighting for free speech against burdensome campaign finance laws. Crane, the president of the Cato Institute, was one of the plaintiffs in Buckley v. Valeo, the seminal 1976 decision that struck down major portions of the Federal Election Campaign Act. And Keating, who has long had to navigate campaign finance laws as executive director of the Club for Growth, has recently been named president of the Center for Competitive Politics.

     

    freeing-speechnowBack in 2008, Crane, Keating and others teamed up to form SpeechNow.org, a group that wanted to raise and spend money to promote or oppose candidates based on their support for the First Amendment. Federal law prohibited them from doing so, so SpeechNow.org and its donors—represented by IJ and CCP—filed suit against the Federal Election Commission. The result was SpeechNow.org v. FEC, in which the D.C. Circuit Court of Appeals unanimously held that individuals and groups have a First Amendment right to pool unlimited amounts of money to spend on independent political speech. That ruling led directly to the creation of so-called “Super PACs.”

     

    Now, writing in The Wall Street Journal, Crane and Keating are stepping up to defend the results of that decision and the power it gives to grassroots groups to educate voters:

     

    [I]n Buckley [v. Valeo] the court ruled that individuals could spend unlimited amounts to support a federal candidate if those expenditures were not coordinated with the candidate's campaign. SpeechNow.org went further. It held that the First Amendment allows two, or four, or 400 or more individuals to pool their resources and exercise the same right to make independent expenditures that one individual could make under Buckley. Hence, Super PACs.

     

    Money is a proxy for information in campaigns. Yet Americans spend as much on potato chips as they do on all federal elections ($3.6 billion in 2010). Maybe that partly explains why most Americans cannot name their congressman, much less say where he or she stands on the issues.

     

    That's why we believe Super PACs are a good thing. In the recent Republican South Carolina primary, Super PACs reportedly outspent the candidates' campaigns by two to one. That means more information was available on the candidates and more interest in the campaigns has been generated. It could be argued that Super PACS are the reason the GOP primary campaign this year is a horse race and not a coronation.

     

    Subscribers to the Journal can read the whole thing here.

    The Seattle Post-Intelligencer’s Joel Connelly has a column bemoaning how political campaigns in America are conducted and laying the blame for what he sees as the poor state of things at the feet of the U.S. Supreme Court and the Citizens United decision. Almost everything he says in the article is wrong—even if one were to put aside his unsourced statement that one Super PAC has received $50 billion in contributions. (This would be quite the accomplishment as the total amount of political spending in all elections in 2012 at the federal, state, and local level is expected to be $5 billion.) Moreover, I do not recall him filing any stories about how well politics functioned when McCain-Feingold was robustly throttling political speech in the days prior to Citizens United.

     

    Coincidentally, Connelly’s piece came out the same day that Dan Abrams takes his fellow journalists to task for not understanding what Citizens United said and distorting its impact on elections. Abrams is no fan of the decision, but he does have an insight into the case that others do not: His father Floyd represented Mitch McConnell in the case. His insight leads him to take on those, like Connelly, that regurgitate what they hear others say about the case, regardless of whether it is accurate or not. His piece could have been written in response to Connelly’s column, but sadly, columns like Connelly’s have become the standard media analysis of the decision, not the exception.

    Roll Call columnist Eliza Newlin Carney, who coined the term "Super PAC," has written a column titled “Some Super PAC Money Untraceable.”  The column discusses the findings of a report titled “Auctioning Democracy,” released by Demos and the U.S. PIRG Education Fund.

     

    As Carney reports, “Since 2010, 6.4 percent of the itemized contributions underwriting super PACs could not be traced to their original source, the report found.”

     

    Wait a minute . . . this is the torrent of secret money we keep hearing about?

     

    It seems to us that the really newsworthy thing about the Demos/PIRG study is that, for all the “reform” lobby’s complaining about secret money in politics, a full 93.6% of itemized contributions to Super PACs can be traced back to their original source.

    Washington Post columnist E.J. Dionne has been complaining about Citizens United v. FEC since before Citizens United was decided. In his latest attack on that ruling, Dionne argues that the decision doesn’t work “if you think we are a democracy and not a plutocracy.”  As famed First Amendment lawyer Floyd Abrams notes in a response, much of Dionne’s critique is based on false factual premises.

     

    There is, however, another, more fundamental problem with Dionne’s critique. Like so many critics of Citizens United, Dionne largely ignores the intermediate step between political spending and electoral results:  voting.

     

    Citizens United freed corporations and unions to spend money on political speech.  A later ruling, SpeechNow.org v. FEC—litigated by the Institute for Justice and the Center for Competitive Politics—freed individuals and groups to form Super PACs to do the same thing.  But neither ruling freed anyone to buy votes.  The most corporations, unions, or Super PACs can do is attempt to persuade American voters.

     

    Dionne apparently believes that voters should be spared from hearing Super PACs’ speech.  But that sort of paternalism is precisely what the First Amendment forbids.  As the Court noted in Citizens United, “The First Amendment confirms the freedom to think for ourselves.”

    On Monday night, President Barack Obama announced that he is giving his blessing to Priorities USA, a Super PAC supporting his reelection.  Campaign manager Jim Messina, writing at the Obama campaign’s official blog in a post titled “We Will Not Play by Two Sets of Rules,” declares that the change in position is a necessary response to Republican-favoring Super PACs.  Thus, even though the president supports a constitutional amendment to allow for “reasonable limits” on campaign spending, winning reelection has to come first.

     

    If this sounds familiar that’s because four years ago the Obama campaign issued a nearly identical apologia for the then-Senator’s decision to renege on a promise to take part in the presidential public-financing system.  Then, as now, it was presented as a choice forced upon the campaign; he didn’t want to do it, but had to because the other side was “gaming” a “broken” system of regulations.

     

    Such excuses are commonplace.  Self-styled “reformers” claim they have to work within the system to change the system.  But these excuses expose the hollowness of the arguments for stricter limits on campaign finance.

     

    The theory behind campaign finance limits is that political spending causes corruption.  But there is no evidence to support this belief and good reason to believe that both political spending and corruption are driven by excessive government power.  Indeed, the response to the President’s change in position reveals that even the reform lobby doesn’t believe that political spending corrupts everybodyThe New York Times criticized the President’s decision as a betrayal of his stated principles, but made no suggestion that the President is personally more corrupt because of it.  Ditto Common Cause, which called the move merely “disappointing.”  Ditto Thomas Mann of the Brookings Institution, who described the move as “regrettable” but “inevitable.”

     

    It seems that many people believe that the President is guilty, at most, of hypocrisy.  Perhaps they believe that the only candidates who are actually corrupted by money in politics are those who don’t think it’s appropriate for the government to ban or otherwise restrict peaceful political speech and association.  But that is not a serious account of political corruption—it’s just cheerleading for one’s preferred side of the political debate.

     

    For our part, we don’t object to President Obama encouraging people to give to Super PACs supporting his reelection.  Nor do we believe that his decision to do so makes him any more or less corrupt.  What we do object to is the apparent belief by some that a political candidate can demonstrate integrity by promising to ban other people’s political expression once elected.

    Most of the popular arguments against the U.S. Supreme Court’s ruling in Citizens United v. FEC boil down to two sound bites: “Money isn’t speech” and “Corporations aren’t people.” Both of these statements are obviously true. But neither has anything to do with whether political spending—even spending by corporations—is protected by the First Amendment.

     

    IJ has made these points many times, but we’re not alone. Writing yesterday in the Huffington Post, law professor Geoffrey Stone explains why it doesn’t matter that money isn’t speech:

     

    Even though an object may not itself be speech, if the government regulates it because it is being used to enable free speech it necessarily raises a First Amendment issue. Thus, a law that prohibits political candidates to spend money to pay for the cost of printing leaflets, or that forbids individuals to contribute to their favorite political candidates to enable them to buy airtime to communicate their messages, directly implicates the First Amendment. Such laws raise First Amendment questions, not because money is speech, but because the purpose of the expenditure or contribution is to facilitate expression.

     

    Similarly, last month, law professor Kent Greenfield wrote an excellent takedown of the “corporations aren’t people” meme:

     

    Citizens United did not hold corporations to be persons, and the court has never said corporations deserve all the constitutional rights of humans. The Fifth Amendment’s right to be free from self-incrimination, for example, does not extend to corporations.

     

    In fact, saying corporations are not persons is as irrelevant to constitutional analysis as saying that Tom Brady does not putt well in handicapping the NFL playoffs. The Constitution protects the rights of various groups and institutions — whether Planned Parenthood, Bob Jones University or the AFL-CIO — though they are not “natural persons.”

     

    Neither of these professors appears to be a fan of the result in Citizens United. Nevertheless, they recognize—as any honest critic must—that the most popular arguments against that ruling are empty slogans. We hope that other critics of Citizens United will follow their lead.

    Slate’s U.S. Supreme Court commentator Dahlia Lithwick has written a paean to Stephen Colbert and his satirical Super PAC, Americans for a Better Tomorrow, Tomorrow.  As Lithwick sees it, the members of the Citizens United majority are getting their just deserts, as Colbert uses his Super PAC to attack a decision that contributed to the creation of Super PACs.

     

    But there’s a problem with Lithwick’s narrative:  Virtually everything Stephen Colbert is doing was legal before Citizens United.

     

    ColbertAlthough Colbert has often used the phrase “unlimited corporate money” in reference to his Super PAC, last Tuesday’s disclosures paint a very different picture.  Colbert’s PAC, which raised more than $825,000 through the end of the year, has raised almost no corporate money.  Indeed, the only two corporate donations he reported to the Federal Election Commission amount to $714, total.  In addition to barely raising any corporate money, Colbert’s Super PAC accepted only one contribution from an individual (of $9,600) in excess of the $5,000 limit that applies to regular PACs.

     

    In other words, more than 99% of the money Colbert has raised to mock Citizens United and Super PACs is money that has been legal under the campaign finance laws for decades.

     

    So what are the real lessons to be learned from Colbert’s surprisingly un-Super PAC?

     

    Perhaps the most obvious is that campaign finance laws are rarely a hindrance for people with television shows espousing political messages that are already popular.  Those people already have the ability to get their message out to a national audience.  Political upstarts or outsiders—the real beneficiaries of the rulings in Citizens United and SpeechNow.org v. FEC—don’t have that option.

     

    But another lesson—or perhaps more of a sad reminder—is that free speech will never want for critics.  There will always be those who use their free speech rights to advocate that others’ be restricted.  And it is surely their right to do so.  But such people aren’t—as Colbert and Lithwick seem to believe—cleverly using the tools of the Machine to attack the Machine.  They’re simply advocating censorship for speech they disagree with, and weakening the basis of their own rights in the process.

     

    Image source: MHimmelrich

    Last Tuesday, many so-called “Super PACs” for the first time disclosed their donors to the Federal Election Commission. But as proponents of campaign finance laws savor this newly released data—and whinge over how long it took for them to get it—here’s one thing you won’t hear them admit: We would have had this information weeks ago if our campaign finance laws were less strict.

     

    Surprised? Don’t be. It’s just the latest example of the unintended consequences of the reform lobby’s zeal for ever-greater regulation of political speech. To understand how it happened, it helps to know a bit about the history of Super PACs.

     

    Although the media commonly associates Super PACs with the U.S. Supreme Court's decision in Citizens United v. FEC, that decision is only indirectly related to the rise of Super PACs. Citizens United freed corporations and unions to spend on their own. But even after that decision, individuals and groups were still limited in their ability to pool money to spend on political speech.

     

    freeing-speechnowIt wasn’t until the D.C. Circuit Court of Appeals decided a case called SpeechNow.org v. FEC that individuals and groups were permitted to pool money in unlimited amounts to spend on political speech. As the D.C. Circuit recognized in that case, if a wealthy individual or a corporation acting alone is permitted to spend an unlimited amount on political speech, it makes no sense to limit the amount that individuals and other groups can pool together to spend on political speech.

     

    But the D.C. Circuit also did something else: It held that groups that pool money to spend on independent political speech may be required to speak through heavily regulated political committees (or PACs). Reformers cheered this portion of the ruling because PACs are the most heavily regulated groups under federal campaign finance law. The Campaign Legal Center—the pro-regulation group run by Stephen Colbert’s personal lawyer, Trevor Potter—called it “a victory for disclosure.”

     

    It turns out to have been a Pyrrhic victory.

     

    The reform lobby ignored the fact that PACs, while heavily regulated, disclose their donors on a preset schedule. The plaintiffs in the SpeechNow.org case had argued that they should be subject to the less stringent regulations that apply to groups other than PACs. Those groups, however, are required to disclose their donors within 48 hours of spending $10,000 or more on political ads (and within 24 hours if it’s less than 20 days before a primary or general election).

     

    In other words, we could have known all along who was giving to Super PACs if the reform lobby and the Federal Election Commission, driven by a mantra that “more regulation is always better,” hadn’t turned their noses up at the offer.

     

    None of this is to endorse the idea that contributions to Super PACs should necessarily be disclosed. The First Amendment protects the right to engage in anonymous speech, and people who get together to engage in independent political speech should, ideally, be allowed disclose as much or as little about their donors’ identities as they like. But it’s a great example of how the reform lobby’s tactics invariably focus, first, on making it difficult to put spend money on political speech, with all other considerations being secondary.

     

    In light of this, there are good reasons to be skeptical of their efforts to revive last year’s failed DISCLOSE Act, which would impose extensive new disclosure requirements on Super PACs and nonprofit organizations. For the reform lobby, the fact that some groups might stop speaking rather than comply with these new burdens is a feature, not a bug.