What does the DISCLOSE Act have in common with movie monsters like Jason Voorhees and Freddy Krueger? No matter how many times it appears to die, it keeps coming back to life. The Hill reports that Senate Democrats are preparing to force—as early as next week—a vote on a “bare-bones” version of the DISCLOSE Act that they hope will appeal to Senate Republicans like Susan Collins and Olympia Snowe, who have supported campaign finance restrictions in the past.
This “bare-bones” version, although it will not include things like prohibitions on political spending by companies with more than twenty percent foreign ownership, will still have “disclosure” mechanisms designed to discourage corporations from speaking during election season. Thus, DISCLOSE remains, as it always has been, a cynical assault on First Amendment rights by politicians who are afraid of corporations speaking out against their reelection.
As First Amendment advocates work again to put a stake in DISCLOSE’s heart, they should make sure, once and for all, that—unlike with Jason and Freddy—there is no possibility of a sequel.
In a recent article in National Journal, Jonathan Rauch explains that the “Tea Party” is not one organization run by a top-down command structure, but rather a large number of local organizations across the country. Almost all of them are completely run by volunteers, and they do a multitude of different things: recruit candidates for office, hold rallies, network with other activists, etc. Many do not even have a formal organizational structure, but are merely a band of interested people who get together to talk and strategize, then take it upon themselves to accomplish various goals and see if others want to help out.
One particularly telling anecdote is the following:
Asked how many neighborhood tea parties exist in the Dallas area, another citywide coordinator replied, “I don't even know.”
The coordinator does not know because “tea parties” are often just groups of people who get together and start engaging in political activism. Their existence ebbs and flows, with groups constantly forming and disappearing. Groups frequently coordinate, but often they do their own thing.
What the article does not mention is that much of what these various groups do is potentially subject to campaign finance laws. For instance, if the members of a small grassroots tea party group want to put up signs for a candidate they like, under federal law (for a Congressional race) and the law of most states (for state and local races), they need to report their spending on those signs. If the “group” (I use quotation marks as it could just be a few people who belong to a Meetup group or even an email list) is coordinating the effort with other “groups,” then all of the people involved may be subject to complex administrative and reporting requirements that can be navigated safely only with the aid of lawyers and accountants. Much of this activity, luckily, flies under the regulators’ radar, but the potential for liability is widespread and ominous.
All of this goes to show that campaign finance laws are not designed for a decentralized bunch of activists like the Tea Party movement. But the application of campaign finance laws to the activities of these citizens is more than just another example of the government applying antiquated laws to a world they weren’t designed for. More importantly, these laws threaten to wrap tea partiers—as well as activists of all political stripes—in so much bureaucratic red tape that they can’t speak. While that’s a result that most professional politicians facing reelection this November would probably like, it’s one that those of us who care about keeping political speech in this country robust should abhor.
Last week, Paul Shermanblogged about how campaign finance laws are often used as weapons by opponents in political campaigns. That shouldn’t surprise us a bit. Businesses often use regulations to gain an upper hand against their competitors. It’s hardly surprising that competitors in the political marketplace do the same thing.
Examples of this sort of thing abound. Kim Strassel of The Wall Street Journal recently reported on how opponents of Washington senatorial candidate Dino Rossi have been dogging him for years with lawsuits alleging violations of campaign finance laws. Conveniently, these suits tend to become active right around election time.
Both political parties give as well as they get when it comes to the strategic use of campaign finance laws. But that doesn’t make these abuses acceptable. For one thing, the laws are just as likely to be used against ordinary Americans as professional politicians.
A few years ago, the Institute for Justice defended an initiative campaign in WashingtonState that was sued for failing to disclose the on-air commentary of two talk radio hosts as “in-kind” contributions. The hosts supported the initiative, which sought to repeal a controversial gas tax, and they had the temerity to say so on the air. A number of local governments who stood to gain millions from the gas tax objected and expressed their disdain by suing the initiative campaign for allegedly violating disclosure laws.
The same thing happened to a group of neighbors outside of Denver in 2006. They opposed an initiative to annex their neighborhood into the adjoining town. For talking to neighbors, sending out post cards, and putting up lawn signs, they were sued for failing to register as an “issue committee” under Colorado law. Not surprisingly, the supporters of annexation were the ones who filed the suit. IJ is also litigating this case, which is currently on appeal before the Tenth Circuit Court of Appeals.
Campaign finance laws have done next to nothing to take the corruption out of politics. But they’ve done a great deal to put the lawyers and regulators in. That may provide for great political theater on occasion, but it doesn’t exactly inspire confidence in our electoral system, and it’s no way to protect free speech.
The Holztman Vogel blog reports that New York City Public Advocate Bill de Blasio has a new front in his efforts to dissuade associations of Americans from exercising their First Amendment rights. A new website established by the Public Advocate condemns companies unless they pledge to not “tak[e] advantage” of the Supreme Court’s decision in Citizens United. In other words, he is using the taxpayers’ funds to castigate companies for retaining their ability to exercise their First Amendment rights.
The website allows the visitor to scroll over the names of different companies divided into whether they have publicly pledged to refrain from speaking about politics. If a company has not sufficiently renounced its First Amendment rights to the Public Advocate’s satisfaction, the visitor is encouraged to “reach out and demand that companies which can still use treasury money in elections reform their spending policies.” No one is really sure what the Public Advocate's actual duties are, exactly, although the current holder of the office apparently believes part of his responsibilities is to spend the taxpayers’ money bullying organizations into renouncing their constitutional rights.
The Democratic Governors Association (DGA) has filed a complaint with the Ohio Elections Commission, accusing Fox News of violating Ohio campaign finance laws. Fox News’ supposed crime? While Ohio gubernatorial candidate John Kasich was being interviewed by Bill O’Reilly, Fox News displayed the URL for Kasich’s campaign website under Mr. Kasich’s image for approximately 1 minute and 30 seconds of the 6 minute interview.
Here’s a video of the interview, which the DGA apparently believes is so damning that they’ve uploaded it to YouTube themselves. Kasich's URL appears 1:34 into the video:
If you watch the video you’ll notice that the chyron at the bottom of the screen cycles through several different versions, including “John Kasich (R), Running for Ohio governor,” “John Kasich (R), Author of “Every Other Monday,” and “John Kasich (R), KasichforOhio.com.”
That last one is what has the DGA up in arms. The DGA claims that by displaying Kasich’s website, Fox News made an illegal “in-kind contribution” to Kasich’s campaign. They also claim that Fox News should have included a disclaimer beneath the graphic, labeling it as a paid political advertisement.
The DGA’s complaint is absurd, and the implications if it were taken seriously are astounding.
Following up on the post below by my colleague Anthony Sanders, Ohio Senator Sherrod Brown’s speech to the Ohio State Chapter of the American Constitution Society assailing the Citizens United ruling had a revealing theme. Much of what he said was the usualapocalyptic hysteria about the ruling that Brown has made before. However, Brown also suggested why he believed the ruling was so problematic: he believes it will make it harder to pass legislation he thinks is important. In other words, Brown believes the government must suppress speech in order to prevent some groups from interfering with his ability to get the policy outcomes he wants.
This view is not new, unfortunately. One can easily disregard Brown’s simplistic Manichean worldview, where corporations run by autocratic robber barons (undoubtedly all fat men sporting walrus mustaches and wearing waistcoats and top hats) frustrate the noble legislature’s selfless quest for social democracy by manipulating the beliefs of a sheep-like public. More fundamentally, though, it is hard to find a position more antithetical to the First Amendment than the argument, “we need to suppress speech so the government has an easier time doing what it wants.”
The First Amendment prevents the government from abridging free speech and the law at issue in Citizens United did just that—it banned books, pamphlets, advertisements, etc. because of the identity of the speaker. The fact that the Court struck down a law that silenced speakers with which government officials often disagree is precisely why the case was so important for the continued vitality of the First Amendment. Perhaps Senator Brown’s real problem with the case is that it establishes that if the First Amendment protects anything, it protects political speech—even the speech of those who disagree with wanna-be censors like Sherrod Brown.
In a recent speech Senator Sherrod Brown of Ohio unwittingly illustrated the folly of attacks on “judicial activism” by the left and the right. Senator Brown decried the Supreme Court’s opinion in Citizens United because it allowed corporations (and unions, although it does not appear the Senator complained about that result) to speak about elections. He claimed there is no “better example of an activist judiciary legislating from the bench than the Citizens United case.” He said this flew in the face of decades of complaints from conservatives arguing “that liberal courts are making law from the bench.”
Senator Brown is right that conservatives have used the rhetoric of “judicial activism” for years when courts have struck down laws that they like. And many of those same conservatives support the Court when it strikes down laws they do not like, such as the ban on corporate speech at issue in Citizens United. But the same can be said of leftists. They support the Court when it strikes down, for example, bans on flag burning or nude dancing, but excoriate the Court when it defends the right of people to associate in the corporate form and speak, as the Court did in Citizens United.
Here at the Institute for Justice we disagree with both sides. We reject the terms “activism” and “restraint” as they are commonly used as two sides of a false dichotomy. Instead, judges should practice judicial engagement, no matter what the context. That is, they should do their jobs. The First Amendment says “Congress shall make no law . . . abridging the freedom of speech.” It is not “activist” to actually enforce that language. Judges, just like Senators, swear an oath to support and defend the Constitution. Instead of complaining when judges do their job, we should be outraged that many judges, such as the dissenters in Citizens United, vote to uphold laws that violate the Constitution. In short, the real outrage is not judicial engagement, but judicial abdication.