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.
Image source: Cayusa
As we’ve noted, Target has drawn heavy fire for its donation to an organization that’s speaking out in support of Minnesota gubernatorial candidate who opposes gay marriage. One of the latest examples of this criticism is a humorous viral video featuring a flash mob that performs a song called “Target Ain’t People”—set to the tune of Depeche Mode’s hit song “People are People”—in the middle of a Target store as employees and customers look on with varying degrees of bemusement.
A link to the video is here. A small sample of the lyrics follows:
I can’t understand what makes Target
think they’ll get away. Gonna make them pay.
Target ain’t people so why should it be
allowed to play around with our democracy.
Later, the performers tell their audience: “Boycott Target. Take America back!”
You could dismiss this video as the frivolous ramblings of slackers who like to dress up in costumes and make an annoyance of themselves instead of, you know, getting a job. But that would be a mistake. That’s because the video unwittingly provides all the insight you’ll ever need into what makes critics of Citizens United tick.
For all their railing against Target spending money on speech, it’s clear that the not-ready-for-prime-time players don’t think that corporations like Target can make them do their bidding. They want the audience to know that they’re smarter and hipper than that. And they clearly believe that there are at least some like-minded individuals of a progressive political mindset who will join them in their anti-Target crusade.
Inevitably, whenever one starts reading about the government’s “compelling” need to collect information on the political activity of American citizens, one comes across this quote from Justice Louis Brandeis: “Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.” Ever since the Supreme Court used the quote in Buckley v. Valeo to support federal campaign disclosure laws, anyone arguing that the government should not be in the business of maintaining databases of the political activities of its citizens is confronted with this chestnut.
It’s time to put this cliché to rest, if for no other reason than it is purely idiotic from a substantive standpoint. Try treating your next bout of sepsis with sunlight and see how well that goes. Somehow widespread electrification across the U.S. has not alleviated the need for policemen. If someone other than Louis Brandeis had said this, most people would think that that person was delusional.
Moreover, this line has nothing to do with the First Amendment. Brandeis wrote this line in a book, Other People’s Money and How the Bankers Use It that dealt with bankers’ use of “other people’s money” to invest in companies in which they held interlocking directorates and other financial shenanigans. He was urging that the financial interests of these bankers should be transparent so that investors and depositors knew what happened to their money. His line was not a call for the widespread collection of data on citizen speech that the government engages in today.
Finally, when employing this quote, most pro-regulation writers do not include the sentence that immediately precedes the “disinfectant” line: “Publicity is justly commended as a remedy for social and industrial diseases.” Whatever a “social or industrial disease” may be, the First Amendment does not qualify. Rather, the First Amendment is the key to American liberty and an indispensible tool against tyranny; when government monitors and collects information about the political speech and activities of Americans, First Amendment rights are harmed. It’s high time we stopped applying a remedy assumed to eliminate “social and industrial diseases” to one of our most fundamental constitutional rights.
Image source: Roadsidepictures
Glenn Greenwald wrote a column in Salon back in 2008 that bears on the debates over Citizens United and the Shareholder Protection Act. Greenwald rightly criticized Palin for claiming the First Amendment was threatened when reporters attacked her for making negative comments about President Obama:
The First Amendment is actually not that complicated. It can be read from start to finish in about 10 seconds. It bars the Government from abridging free speech rights. It doesn’t have anything to do with whether you’re free to say things without being criticized, or whether you can comment on blogs without being edited, or whether people can bar you from their private planes because they don’t like what you’ve said.
Amen to that.
In a recent op-ed, Steven Maviglio and Jon Fleischman, two veteran California bloggers, lavish praise on the Fair Political Practices Commission for its suggestions on how to regulate online political activity. According to the two, “the use of the Internet for political activity has enriched democracy, inspired creativity and fostered robust debate.” So what’s the problem? Well, it turns out that some people have been talking in ways that the two don’t like. So in order to “tame politics on [the] Web,” as the two put it, California has chosen to toss anonymity out the window and to require that candidates’ Facebook posts, tweets, and e-mails be larded up with as many disclaimers as they can bear.
Although Maviglio and Fleischman commend the FPPC for its light touch, we here at Congress Shall Make No Law have an even more modest suggestion: do nothing. The First Amendment protects all Americans’ rights to talk about whatever they want. Freedom of speech is our birthright, not a mere privilege that the government may grant or deny as it sees fit.
In an op-ed in yesterday’s San Francisco Chronicle, R. Warren Langley and Ciara Torres-Spelliscy argue that Citizens United opens the door to corporate abuse of shareholder rights:
What's really the problem with Citizens United, the case that welcomes corporate money into politics? It lets CEOs spend your money for any political reason they want. So if the CEO wants a ticket to the inaugural ball, a night in the Lincoln Bedroom in the White House or an ambassadorship, he can buy it with your money.
Given the hyperbole to which critics of Citizens United are prone, it seems almost churlish to point out that everything in the preceding paragraph is nonsense.
As the U.S. Supreme Court considers whether to take up IJ’s First Amendment challenge to Arizona’s system of taxpayer-funded campaigns, it is worthwhile to ask whether systems like these deliver the promised benefits to the public that pays for them. Inevitably, supporters claim that public funding will revolutionize—and, of course, elevate—democracy. See, for example, the lofty list of promises made by drafters of a proposal currently before Congress.
Arizona has been using taxpayer dollars to pay politicians to run for office for 10 years, and so has Maine. Other states and localities have likewise experimented with different varieties of full- or partial-public funding for political campaigns. In all that time, what have we learned?
In his new IJ research brief, political scientist David Primo takes a clear-headed look at the social science evidence for key claims of public funding backers. His conclusion: The reality falls short of the rhetoric.
As Bill Maurer notes below, at the heart of IJ’s challenge to Arizona’s “Clean Elections” law is an obvious and important claim: If the government gives additional money to your political and ideological opponents whenever you speak, you are less likely to do so. Thus, the so-called “matching funds” (or “rescue funds”) in Arizona’s law and several others chill the exercise of the First Amendment right to speak freely about politics.
Incredibly, defenders of such laws claim that those facing matching funds—candidates who refuse taxpayer funds and independent groups that support them—are free to speak as much as they like. This is contrary to common sense: Who wants to speak more when the inevitable result of that speech will be more taxpayer dollars for the candidate (or candidates) you oppose?
It is also contrary to recent scholarly research. David Primo, associate professor of political science at University of Rochester, analyzed four cycles of Arizona election data and found that candidates at risk of triggering matching funds employ a clever strategy to avoid having their campaign speech drowned out—they hold their tongues until the last minute. That way, the matching funds arrive too late to do their opponents much good.
Primo explains his findings in a new research brief published by the Institute for Justice. He also notes research from political scientist Michael Miller that suggests this practice is common among privately funded candidates in Arizona. As one candidate told Miller, “Every dollar I spend over the threshold starts feeding the alligator trying to eat me . . . . I sent out a lot less mail and held a lot less events than I would have but for my hands feeling like they were tied under this system.” That sure doesn’t sound like someone who feels free to robustly exercise his First Amendment rights.
Update: Primo has this op-ed on his research at Huffington Post.