The Associated Press reports that California’s Fair Political Practices Commission (FPPC) is considering “how to regulate new forms of political activity such as appeals on a voter’s Facebook page or in a text message.”
Not whether to regulate these new forms of political speech, but how.
The recommendations apparently include “requiring tweets and texts to link to a website that includes . . . full disclosures, although some people feel the disclosure should be in the text itself no matter how brief . . . .”
To paraphrase Chief Justice John Roberts, this is why we don’t leave our free speech rights in the hands of FPPC bureaucrats. To bureaucrats like those at the FPPC, the Federal Election Commission or their analogues, there seems to be no need to show any evidence that Twitter, Facebook or text messages actually pose any threat to the public. It is enough that they these new forms of low-cost media aren’t currently regulated, but could be. Their primary concern, apparently, is that the regulation of political speech be as comprehensive as possible.
Here’s an alternative recommendation for the FPPC: Leave the Internet alone. What you will undoubtedly find is that California voters—and, indeed, Americans generally—don’t need you to protect them from political speech. To the contrary, the First Amendment reflects a profound commitment to the idea that you are the very last people we should trust to control the content of our political debate.
In an emergency appeal, the U.S. Court of Appeals for the Eleventh Circuit has enjoined Florida’s unconstitutional system of campaign finance “matching funds.” The ruling (.pdf) reverses a contrary decision—handed down only two weeks ago—by U.S. District Judge Robert Hinkle.
As we have previously described on this blog, matching-funds programs unconstitutionally discourage privately funded candidates from speaking because, if those candidates spend more than a certain amount on political speech, the government starts cutting checks directly to their government-financed opponents. IJ will soon be appealing a similar challenge to Arizona’s matching-funds program to the U.S. Supreme Court.
More analysis of the 11th Circuit's ruling to follow.
How likely is it that matching-funds programs like those in Florida, Arizona and Connecticut violate the First Amendment? Accordingly to the 11th Circuit, “exceedingly likely.”
In its ruling enjoining Florida’s matching-funds program, the 11th Circuit panel treats the legal issue in gubernatorial candidate Rick Scott’s challenge to Florida’s law as an easy question that is entirely resolved by the Supreme Court’s 2008 ruling in Davis v. FEC. And the 11th Circuit is absolutely right.
After the Supreme Court upheld the right of corporations and unions to engage in political speech in Citizens United, many pundits darkly warned that corporations could now “buy” elections. These pundits necessarily relied on two assumptions: (1) voters are dolts whose votes can be “purchased” through advertising, without voters making any independent analysis of their own; and (2) corporations will not suffer economically through backing certain candidates.
For assumption (1) I refer our readers to Paul Sherman’s terrific post on this blog of earlier this month. As for assumption (2), check out this story on Target Corporation’s foray into the Minnesota gubernatorial race:
Target earlier this month donated $150,000 to MN Forward, a pro-business group backing Rep. Tom Emmer, the conservative Republican-endorsed gubernatorial candidate.
That led to a week of bruising reaction from Target employees and gay-rights activists that included a nationwide e-mail campaign and petition claiming 15,000 signatures.
Target claims the donation was made because the company supports Emmer’s fiscal policies, not his social policies which are viewed by some as anti-gay-rights. It also adamantly contends it remains “unwavering” in its support for the GLBT community through policies such as extending benefits to domestic partners. Even so, that has not saved Target from controversy, as many of its gay and lesbian employees, not to mention customers, are incensed by the support for Emmer.
Whether this outrage is justified or not, it is evidence that corporations wade into candidate races at their peril. The fact that this is even a story demonstrates that for-profit corporations are very careful, and hesitant, in picking sides in candidate races. What do corporations value more, customers or candidates? If they pick any candidate, they are going to anger many loyal customers, even if the reason they pick that candidate has nothing to do with why the customers are angry.
Earlier today, the U.S. Senate voted 57 to 41 on a procedural motion to end debate on the DISCLOSE Act. Because such motions must get 60 votes in order to pass, the DISCLOSE Act is likely dead for the time being.
But the drum of censorship continues to beat on. The Hill reports that Charles Schumer, the Senator who was the chief sponsor for the Act, has vowed that the Senate “will go back at this bill again and again and again until we pass it.” Like a creature from a horror movie, expect to see the zombie DISCLOSE Act come back to haunt us again sometime this fall.
Image Source: itspaulkelly
The debate on the DISCLOSE Act is coming to a head today.
Our friends at the Center for Competitive Politics reported that the Senate will vote today on whether to cut off debate on the Act. It appears that the Senate leadership doesn’t have the sixty votes it needs to end the Republican filibuster of the bill, but has decided to move forward anyway in the hopes of scoring political points ahead of the mid-term elections.
The DISCLOSE Act’s sponsors and supporters weren’t exactly subtle in their attempt to portray the bill as merely promoting openness and transparency. After all, they named the thing the “Democracy is Strengthened by Casting Light on Spending in Elections” Act. But despite these efforts, it’s been clear from the start that the Act’s purpose was to silence disfavored speakers. As we have noted before, Senator Charles Schumer has said that the Act’s “deterrent effect should not be underestimated.” Representative Hank Johnson (D-GA) told his fellow House Democrats that they should vote for the Act because, otherwise, “we will see more Republicans getting elected.” And, just yesterday, President Obama said that passing the DISCLOSE Act would help “reduc[e] corporate and even foreign influence over our elections. . . .”
The Supreme Court in Citizens United struck down the ban on corporate independent advocacy because it acted “to silence entities whose voices the Government deems to be suspect.” The DISCLOSE Act tries to silence those suspect voices once more. But the First Amendment doesn’t let the government play favorites with freedom of speech. Here’s to hoping that the Senate has taken that lesson to heart.
Last month, the U.S. Supreme Court ruled in Doe v. Reed
that people who sign a petition seeking to place a ballot measure before the voters do not have a general right
to anonymity under the First Amendment
. The case concerned signers to a referendum— Referendum 71, to overturn Washington’s domestic partnership law. The Supreme Court accepted the arguments from the State and supporters of the law that the names of the petition signers sh
ould be released in order to, among other things, “combat fraud, detect invalid signatures, and foster government transparency and accountability.” The Court remanded the case to the U.S. District Court in Tacoma to consider the plaintiffs’ specific argument that identifying the signers publicly would facilitate the harassment of these individuals by supporters of the domestic partnership law.
The Everett Herald reports that Referendum 71’s proponents have now filed a motion in district court on remand seeking to keep the names of the signatories from being released. The fact that this case is still going on is interesting. Referendum 71 lost badly at the polls. The continued pressure for the public disclosure of petition signers—despite the fact that the referendum is deader than Francisco Franco—indicates there may be other motives besides “transparency” behind the effort to release these names. The fact that the effort continues also suggests that the Court should have taken more seriously the argument that the release of these names by the government facilitates harassment and coercion by political and ideological operatives.
We will continue to update our readers on this case as it progresses through the courts.
In the next landmark case challenging campaign finance restrictions after the historic Citizens United decision, the Institute for Justice and the Center for Competitive Politics today filed a petition (.pdf) with the U.S. Supreme Court, asking it to review a case challenging federal laws that impose enormous burdens on grassroots groups that simply want to speak out in elections. The case is SpeechNow.org v. FEC.
SpeechNow.org is a group of citizens who want to defend free speech at the ballot box by running ads that oppose candidates who do not support First Amendment rights. But under federal law, if the group decides to spend most of its funds on ads that call for the election or defeat of political candidates, it must register with the government as a political committee or “PAC” and be subjected to a host of burdensome regulations before speaking.
Earlier this year the Supreme Court ruled in Citizens United v. FEC (.pdf) that the same regulations that apply to SpeechNow.org are too burdensome for corporations to comply with. As Justice Anthony Kennedy put it, “PACs are burdensome alternatives; they are expensive to administer and subject to extensive regulations.” The Court went on to hold that requiring a group to speak through a PAC amounts to an unconstitutional “ban on speech.”
Unfortunately, despite the Supreme Court’s ruling, the D.C. Circuit Court of Appeals held (.pdf) that the government could force SpeechNow.org, an unincorporated nonprofit association, to comply with these burdensome regulations just to speak. IJ and CCP are asking the Supreme Court to reverse that portion of the D.C. Circuit’s ruling.
The Supreme Court’s decision in Citizens United was crystal clear: “If the First Amendment has any force, it prohibits Congress from fining or jailing citizens or associations of citizens, for simply engaging in political speech.” Large corporations and unions can now spend as much as they want on political speech. The First Amendment requires nothing less. But it also requires that groups of ordinary citizens like SpeechNow.org have that same freedom.