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. The 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.
IJ 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.
It 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 GeaugaConstitutionalCouncil.org, 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.
The Palm Beach Post reports
that the state of Florida will not appeal a recent decision
(.pdf) by the U.S. Court of Appeals for the Eleventh Circuit that put a temporary freeze on the state’s unconstitutional system of matching funds. Our previous coverage of the 11th Circuit’s decision—and what it means for IJ’s upcoming appeal to the Supreme Court in McComish v. Bennett
—is available here.
Now that the DISCLOSE Act has—at least temporarily—been sidelined, attention is shifting to another bill designed to hinder corporate speech in the wake of Citizens United: the so-called Shareholder Protection Act (H.R. 4790). As Dow Jones Newswires reports, the Act recently made it through the House Financial Services Committee by a 35-28 vote, and can now proceed to the full House.
The brainchild of Rep. Michael Capuano (D-Mass.), the Shareholder Protection Act would require corporations that wish to speak independently during elections to seek prior shareholder approval. The Act does not apply to unions, which would remain free to spend money on political advertising without seeking approval from dues-paying members. Nor does the Act require corporations to get preapproval for speech on any other subject—the law targets only political speech.
The Shareholder Protection Act isn’t really designed to protect shareholders. Corporate managers are already legally required to act in the shareholders’ best interest. By singling out political speech—and only political speech—for more burdensome treatment, the proposed law merely attempts to do indirectly what the U.S. Supreme Court just said Congress may not do directly: abridge corporations’ political speech rights. And just like direct attempts to limit corporate speech, this indirect attempt violates the First Amendment.
The Shareholder Protection Act functions as a prior restraint, the most invidious form of speech regulation. But worse, by requiring corporations to seek approval months in advance of political expenditures, the Shareholder Protection Act asks the impossible. Political markets are dynamic and unpredictable. As Justice Harlan once wrote, “[T]iming is of the essence in politics. It is almost impossible to predict the political future; and when an event occurs, it is often necessary to have one’s voice heard promptly, if it is to be considered at all.” Shuttlesworth v. Birmingham, 394 U.S. 147, 163 (1969). Of course, ensuring that corporate speech doesn’t get considered is precisely the goal behind the Shareholder Protection Act.
H.R. 4790 is unnecessary and unconstitutional. Here’s hoping it meets the same fate as the recently shelved DISCLOSE Act.