Congress Shall Make No Law...

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.


Today, the Institute for Justice filed a petition for certiorari with the U.S. Supreme Court, asking the Court to overturn a decision of the Ninth Circuit upholding Arizona’s punitive system of taxpayer-financed campaigns.  IJ’s challenge is Arizona Freedom Club PAC v. Bennett (known as McComish v. Bennett at the Ninth Circuit).  At issue is Arizona’s so-called “clean elections system,” which provides full public financing for candidates who opt into the system.  In order to “level the playing field” among candidates, the system provides additional public subsidies to government-funded candidates when candidates that do not take public money and the groups that support them engage in political activity above a certain, government-set, level.


Even though the decision only came out in May, the Ninth Circuit’s reasoning has already been rejected by two other federal appellate courts—the Second Circuit in New York and the Eleventh Circuit in Florida.  The reason for the split among the circuits is simple—the Second and Eleventh Circuits got the First Amendment right and the Ninth Circuit got it wrong.  The time has arrived for the Supreme Court to end the confusion and hold once and for all that these types of systems are unconstitutional.  The Court should act now, as creating the most heavy-handed system of financing elections using the taxpayers’ money is a priority for “reformers” eager to more fully inject the government into the decision of who should govern us.


IJ represents two independent expenditure groups in the case, as well as two elected officials who would prefer to run without taxpayer money.  Also seeking the Court’s review of the Ninth Circuit’s decision is the Goldwater Institute, which represents three privately financed candidates in the case.  IJ’s petition requests the Court to grant both petitions and consolidate the challenges so that the Court has the entire range of harm caused by this scheme before it.

It turns out we were a little too quick in our post last week proclaiming the end of the case challenging the new Wisconsin campaign finance rule.  Thwisccheesee case is in federal court and the judge has expressed concern that he might not have jurisdiction to enter a judgment, even an agreed one, that effectively rules on a state law issue (because, typically, federal courts have no jurisdiction over state law issues like this).  A separate case challenging the rule may still proceed in the Wisconsin Supreme Court, where the challengers have asked for expedited consideration because the election is looming.  Indeed, the Court has now issued a temporary injunction barring the state from enforcing the new rule.  The state seems terrified of an actual final ruling in any challenge to this rule, and had stated to the Wisconsin Supreme Court that it would agree not to enforce the rule even if the judge in the federal case concludes he lacks jurisdiction to enter the state’s agreement not to enforce the rule in federal court.


Apparently, no one is in favor of keeping this rule on the books, which raises the question, how did we get here?  The answer is either that the state does not understand campaign finance law and has realized the error of its ways now that the lawyers are involved or that the rule was an attempt to get away with something that the First Amendment does not allow.  Either way, it is not exactly a ringing endorsement of campaign finance laws and the cases applying them, which are so complicated and byzantine that few legislators and even courts can sort out the rules and know what speech can be regulated and what cannot.  Perhaps the questions in this case will be sorted out if two different courts take a shot at it, but that is small consolation for anyone who believes, as we do, that the purpose of the First Amendment is to prevent people who want to speak from having to go through all of this nonsense in the first place.  This is all part of the censors' playbook: throw enough regulations at the wall and at least a few restrictions on speech will stick.


Image Source: quinn.anya

Eliza Carney has an interesting article in the August 7, 2010, edition of the National Journal (subscription required).  Entitled “Six Myths About Campaign Money,” it is an-at-times refreshing look at a number of popular ideas about so-called “campaign finance reform” and the impact of Citizens United.  Carney’s six myths are (i) corporate money will now overwhelm elections, (ii) Citizens United won’t change much, (iii) Congress is more corrupt than ever, (iv) money equals speech, (v) disclosure is the silver bullet, and (vi) public financing will never happen.


Carney does an effective job of dismantling some of the more obvious misconceptions about campaigns and money—read it for yourself to get her full analysis.  But, ultimately, she wants to dispel these myths for one reason:  to make regulating political speech more effective.  Her goal is to “identify solutions and common ground…  Inevitably, regulating democracy is messy and complicated.”  In other words, it’s not that campaign finance regulations are wrong—it’s just that the ones that are in place or being debated are based on misconceptions and more realistic regulations would be more effective.


Her effort is in vain, however.  Better informed attempts to “regulat[e] democracy” will fail like past attempts.  This is because campaign finance regulations treat a symptom—corruption—and not the disease, which is a government that has grown far outside its constitutional boundaries.  The problem is not that the government gives out favors to the wrong people; it is that our elected officials think the government has the power to give out favors at all.  When the government acts like a piñata, people are going to try to get candy from it.  It is senseless to try to solve this problem by allowing the same politicians who refuse to recognize Constitutional limits on their power to chip away at the First Amendment.  The only solution is to insist that they respect the Constitution, even when it tells them that they cannot simply do as they please.

Faced with three separate lawsuits the State of Wisconsin has backed-down from enforcing an incredibly-broad new campaign finance regulation.  If the regulation had been enforced, then conceivably millions of people across the Wisconsin would have had to register with the government for merely mentioning candidates for office.



No, this is not a conspiracy theory post.  Let me repeat that: Millions of people may have had to register with the government for the privilege of mentioning candidates.


Here’s how the scheme was going to work.  Under Wisconsin’s campaign finance statutes (pdf) a group or individual must register with the state if they receive contributions or make “disbursements” of over $25 in a calendar year.  “Disbursements” is further defined as spending on a “communication” for a “political purpose.”  There are some minor exceptions to what constitutes a “disbursement” but it includes spending money on “correspondence” that is reproduced by a machine.  Heard of email?  Yes, your spending on your computer, your smart phone, or your service plan, that enables you to send emails, or set up a webpage (every heard of Facebook?  Twitter?) that are for a “political purpose” would qualify.


supremecourtIJ Board Member, Cato Institute Chairman and all-around friend of liberty Bob Levy writes in today’s Washington Times about the recent clean-elections brouhaha in Florida’s gubernatorial race.


As Levy notes, and as IJ’s Congress Shall Make No Law blog reported last week, the U.S. Court of Appeals for the Eleventh Circuit wisely followed an on-point Supreme Court precedent in concluding that Florida’s “excess subsidy” provision—which gives publicly financed candidates extra cash whenever their private opponent speaks more than what the state deems proper—violates the First Amendment. This ruling came on the heels of the Second Circuit’s recent decision that invalidated Connecticut’s excess subsidy provision.


Other courts, though, have gone a different route. The Institute for Justice and the Goldwater Institute brought challenges to Arizona’s “clean elections” system, which like the systems in Florida and Connecticut contains a matching funds provision. Unfortunately, the Ninth Circuit ruled in May that Arizona could “level the playing field” by giving publicly financed candidates additional funds to match the speech of their privately financed opponents or independent groups. But “leveling the playing field” is really just a polite way to say “restricting free speech.”


A deep and impracticable split in the law now exists between the various federal circuits. There is cause for optimism, though: Two weeks after the Ninth Circuit’s ruling, the Supreme Court issued a stay to keep Arizona from issuing any matching funds. Hopefully the Supreme Court will reverse the Ninth Circuit’s decision and make it clear once and for all that states may not constitutionally burden the speech of those they believe are speaking too much or are too persuasive.

socialIt was inevitable: Politicians are starting to turn to the campaign finance laws to silence their critics on the Internet.


In Ohio, for instance, Edmund Corsi runs, a blog that praises and criticizes various local officials. Well, it turns out that some of those officials don’t like getting criticized. Rather than responding with their own speech, however, those pols got the Geauga Board of Elections to file a complaint with the Ohio Election Commission. They said that Corsi violated Ohio’s campaign finance laws because he failed to register, appoint a treasurer and file regular financial reports with the state before daring to speak.


After some legal wrangling, the Commission now reads the complaint to say that Corsi violated the law by not disclosing his name and home address on the website. But, as the Institute for Justice has repeatedly pointed out, mandatory disclosure laws cause far too many people to remain silent. Thankfully, an Ohio-based public interest law firm has come to Corsi’s defense and asked for these charges to be dismissed.


If campaign finance “reformers” hate anything, it’s the idea that someone somewhere might be speaking freely about politics. As IJ’s Congress Shall Make No Law blog reported last week, the California Fair Political Practices Commission is talking not about whether to regulate candidates’ Facebook posts and tweets, but how. And Corsi’s case shows that would-be censors are now eyeing the Internet as their next battleground. Why? Well, blogs, Twitter and other social media let everyone make their voices heard. To the political insiders who are used to monopolizing speech, that’s a scary thing.


To the rest of us, though, that’s freedom.


Image Source: Matt Hamm

Last month, the U.S. Court of Appeals for the Second Circuit struck down the “matching funds” provision of Connecticut’s Citizen Election Program, a system of taxpayer funding for politicians in the Nutmeg State.  The Hartford Courant reports that Governor Jodi Rell has vetoed the Connecticut Legislature’s attempt to fix the law by eliminating the matching funds trigger and increasing the base grant to candidates from $3 million to $6 million.  The Legislature will now attempt to override the Governor’s veto.



Perhaps the Connecticut Legislature should spend the money it takes from its taxpayers on providing them with essential services instead of funneling it to politicians seeking to get or keep a comfortable job.  Perhaps it should spend the money on paying off the promises these same politicians made with money they did not earn and do not have.  Or perhaps it should simply return the money to the Connecticut taxpayer.  Given that taxpayer-financed campaigns haven’t delivered the benefits their backers promise—particularly in Connecticut—taking the money currently used for the Citizen Election Program and using it to play the slots at the Foxwoods Casino would be a wiser investment with a better chance of a positive return.