Congress Shall Make No Law...

    Nothing is too small to escape the attention of the Speech Police. MPR-2-300x225atthew LaCorte is a recent high school graduate in the Borough of Woodland Park, New Jersey, who is going to college this fall. Matt is a member of Young Americans for Liberty and a Ron Paul supporter. He wanted to show that support by putting up a Ron Paul 2012 sign on his front lawn.

     

    The next thing Matt knows, Borough officials issued him a warning telling him to take down his Ron Paul sign. When Matt refused, the Borough issued him a ticket for violating an ordinance that says that “[p]olitical signs shall not be posted before thirty (30) days prior to the date of the election to which the sign pertains.”

     

    Matthew is fighting the citation, as well he should. The First Amendment is clearly on Matt’s side. The U.S. Supreme Court in City of Ladue v. Gilleo, 512 U.S. 43 (1994); held that municipalities may not single out political signs for special burdens. And numerous courts across the country have held that cities cannot tell citizens that they can only speak during the few weeks immediately around an election. Indeed, two nearby New Jersey towns had to repeal similar durational restrictions from their books after they were subject to legal challenge.

     

    The First Amendment isn’t something that only exists around Election Day; it protects our freedom of speech 24 hours a day, 365 days a year. Woodland Park’s ordinance is blatantly unconstitutional and the Borough should repeal it immediately. After all, it’s relatively easy and cheap for the Borough to take down the law itself. It will be far more expensive for the Borough—both in terms of time and money—to have a court strike down this unconstitutional law.

    Readers of Make No Law are used to hearing stories about how the courts can be used to protect First Amendment rights.  Less well known is that courts can be abused to attack First Amendment rights.  That’s what happened in 2008 when a Texas developer named H. Walker Royall brought a defamation lawsuit against journalist Carla Main. 

     

    Main had written a book, Bulldozed: “Kelo,” Eminent Domain, and the American Lust for Land, that told the story of how Royall teamed up with the city of Freeport, Texas, in a project that would displace a long-running family business by using eminent domain for private gain.  Royall didn’t like the way the book portrayed his role in this abuse of government power, so he sued Carla Main and her publisher, Encounter Books, for defamation.  He even sued renowned law professor Richard Epstein for contributing a blurb to the book’s back cover.

     

    The lawsuit was a blatant attempt by Royall to bully his critics into silence.  And yesterday afternoon, a Texas appellate court held that there was no merit to Royall’s charges.

     

    The ruling is great example of judicial engagement.  Royall claimed that 79 separate statements in Main’s book were defamatory.  He also claimed that the overall “gist” of the book was defamatory.  But the court examined the evidence for each of these 79 claims and found that none of them—not one—was supported by the evidence.

     

    The ruling is also a big win for First Amendment rights.  Eminent domain abuse is a matter of public concern—that’s why journalists like Carla Main write books about it.  If Royall had succeeded in silencing Main and her publisher, the chilling effect on speech would have been profound. 

     

    Finally, the ruling will serve as a helpful adjunct to Texas’s newly enacted Citizens Participation Act, which was enacted in part because of Main’s case.  That new law creates a procedure that allows journalists like Main to quickly dismiss abusive defamation cases like Royall’s, which are commonly referred to as “SLAPP suits” (SLAPP is an acronym for “strategic lawsuit against public participation”).  Texas is the 28th state to adopt some form of anti-SLAPP legislation.

     

    Congratulations to Carla Main, Encounter Books, Richard Epstein, and all of my colleagues who had a hand in the victory. 

     

    For more information about Main’s case, visit IJ’s case page for Texas Eminent Domain Censorship.

    censoredMotivated by the recent scandals involving Rupert Murdoch’s News Corp., The New Republic has a fascinating short article titled “How Campaign Finance Laws Made the British Press So Powerful.” In a nutshell, the article explains how Britain’s stringent campaign finance laws have pushed political influence to the one outlet that is largely unregulated: newspapers.

     

    The story illustrates the inevitable problem with campaign finance laws: Any scheme that tries to limit political influence by one group is always going to shift political influence to some other group. Somebody has to be the most influential—this isn’t Lake Wobegon and we can’t all have above-average political influence. And, as the story also reveals, this shift almost always leads to calls for even more regulation:

     

    To some, this situation may reveal the problem of campaign finance laws: By trying to prevent parties from spending large sums of money and stopping wealthy independent organizations from dominating the campaign, the relative voice of the newspapers is enhanced. But rather than admit that campaign finance laws are futile, one might also conclude that controls on campaign spending should be complemented by attempts to address media power.

     

    Luckily, as the article’s author notes, “Such measures would be unthinkable under the First Amendment.” That’s a bit of an overstatement—American law professors have thought it, but thankfully there is little chance of such proposals being adopted and even less chance of them surviving judicial scrutiny. That’s good news because, if history is any guide, media censorship wouldn’t be the end of it. Ultimately, there is only one way to achieve the “reformers’” vision of equal political influence: mandating equal silence.

     

    Update, Dec. 19, 2011:  This blog post is now available in Slovenian.

    My colleague Paul Sherman has a post on The Hill’s “Congress Blog” discussing the recently reintroduced “Shareholder Protection Act,” which would require corporations to get advance shareholder approval before spending money on political speech. As Paul explains, the Act “has little to do with protecting shareholders and everything to do with silencing corporate speech”:

     

    The goal of the Shareholder Protection Act is obvious. By singling out electoral speech—and only electoral speech—for more burdensome treatment, the Act attempts to do indirectly what the U.S. Supreme Court said in Citizens United v. FEC that Congress may not do directly: prevent corporations from speaking to voters about political candidates. And just like direct attempts to limit corporate speech, this indirect attempt violates the First Amendment. . . .

     

    It is no coincidence that the bills’ 49 co-sponsors are all Democrats, or that the proposed restrictions do not apply to labor unions. Campaign finance laws have long been used as partisan tools to protect incumbent politicians from speech that threatens their reelection. The Shareholder Protection Act is just the latest example of this sort of political self-dealing.

     

    Check out the whole thing.

    minnesotaThe First Amendment protects anonymous speech.  This is especially true when that speech is controversial.  When a citizen comments on an issue, but fears retribution from those who disagree, it is that citizen’s right to be free from the government publicly “outing” her identity.  That’s something the Supreme Court has repeatedly recognized, from the NAACP not having to disclose its donors in 1950s Alabama, to anonymous pamphleteers remaining anonymous in the 1995 case McIntyre v. Ohio Elections Commission.  These cases follow from the obvious proposition that disclosure chills speech.

     

    The Minnesota Campaign Finance Board, unfortunately, has chosen the opposite view.  The board had a long-standing policy of not requiring organizations who donate to ballot campaign committees (committees that spend money to support or oppose ballot issues) to disclose their donors.  The organizations’ donations are already disclosed by the campaign committees they give to, but the donor—the organization—did not have to say where it got its money from.

     

    Until now.  The board just announced it will adopt a new approach where nonprofit corporations who donate over $5,000 to ballot campaign committees must disclose donors of over $1,000.  It is not a coincidence that this accompanies a very controversial ballot issue that Minnesotans will vote on in the 2012 elections: whether to adopt a constitutional amendment limiting marriage to opposite-sex couples.

     

    The rule will undoubtedly chill speech on both sides of the same-sex marriage debate.  Many people may want to give to organizations who may in turn contribute to groups campaigning on the issue, but will chose not to because they don’t want their private political views broadcast on the internet (which is what disclosure means in this day-and-age).

     

    What purpose does this rule serve?  Voters can decide where they stand on the issue without knowing where others stand, and they have no more right to know who is financially backing speech about the amendment than they have a right to know which way anyone will vote on it.  But that’s the whole point--outing people who disagree with you on the issue.  Proponents of the disclosure law want to be able to demonize those on the other side, and they can’t do that without forcing them to disclose their identities.

     

    Criticizing those who disagree with you is perfectly valid in a free society.  What’s not is the government forcing people to disclose information, including their identities, that they’d rather keep private.

    Today, the Institute for Justice secured a significant first-round victory in its challenge to a Washington law that crippled the ability of political novices to run effective campaigns to recall government officials.

     

    IJ Client Robin Farris

    The case involves retired naval officer Robin Farris, who recently launched a recall campaign against controversial Pierce County, Washington Assessor-Treasurer Dale Washam.  But Farris ran headlong into the complexities and red tape of Washington's campaign finance laws. 

     

    Among those laws was Washington’s $800 limit on contributions to recall campaigns.  This limit even extended to in-kind donations of legal services.  Thus, even though attorneys Tom Oldfield and Jeff Helsdon of the firm Oldfield & Helsdon PLLC happily donated free legal assistance to Farris to help her navigate the complex law surrounding recall campaigns, Washington called their volunteer service a contribution and tried to fine Robin for accepting too much of their help.

     

    For Farris, these limits could have doomed her efforts.  Washington law actually requires all recall campaigns to first go to court—a process that can cost tens of thousands of dollars—before they may proceed.  As a political novice with no established base of financial support, there was no way she could afford the cost of legal services or the cost of hiring signature gatherers to get her recall petition on the ballot.  That’s why she joined with the Institute for Justice to fight these unconstitutional limits on grassroots political advocacy.

     

    Now she’s one step closer to winning that fight.

     

    This afternoon Judge Robert J. Bryan of the Federal District Court for the Western District of Washington granted a preliminary injunction freezing Washington’s contribution limits to recall campaigns and allowing Farris’ committee to go forward during the pendency of her lawsuit.  Attorneys Oldfield and Helsdon will be permitted to donate their legal services, and contributors will be allowed to give her committee contributions of more than $800, allowing her to hire paid signature gatherers.

     

    The ruling is notable for its extensive reliance on the Institute for Justice’s recent U.S. Supreme Court victory in Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, which Judge Bryan cited no less than five times.  This is another example of how IJ’s strategic approach to litigation pays dividends in future cases, leading to big gains for individual rights.

     

    Congratulations to Farris, Oldfield, Helsdon, and to all of my colleagues involved with the case.

     

    For more information about Farris’ case, visit IJ’s case page for Washington Recall.

    Today the 8th U.S. Circuit Court of Appeals handed down a major victory for First Amendment rights in Neighborhood Enterprises v. City of St. Louis. The decision strikes down a St. Louis sign ordinance that the City had tried to use to silence an anti-eminent-domain activist.

     

    roosIJ filed the case on behalf of Jim Roos and his nonprofit housing ministry, which works to provide housing for low-income residents of south St. Louis. Roos was a critic of the City’s use of eminent domain for private development. So with the approval of his tenants he painted a large mural on the side of one of his buildings, facing the interstate.

     

    If Roos’ mural had depicted a “[n]ational, state, religious, fraternal, professional and civic symbol[ ] or crest[ ],” it would have been perfectly legal. But because Roos’ mural contained a message of political protest, the City concluded that it was an illegal sign and ordered him to paint over it.

     

    Roos wasn’t going to give in, so he joined with IJ to fight for his First Amendment rights. And today the 8th Circuit handed him a victory, holding emphatically that government isn’t allowed to restrict speech based on its message.

     

    The 8th Circuit’s ruling is more than just a victory for Roos—it reaffirms how important it is for judges to look beyond government assertions to see what’s really going on. When the 8th Circuit looked at the evidence, it found there was nothing to support the City’s discriminatory treatment of Roos’ political speech. That sort of careful analysis—which judges should undertake in every constitutional case—is the essence of principled judicial engagement.

     

    Equally vital to IJ’s success in this case was Roos’ willingness to stand up for his rights and challenge the government in court. This is not easy to do, as IJ President Chip Mellor recently noted:

     

    The financial and emotional costs of litigation are enormous burdens for ordinary people to bear in the midst of trying to live their lives. The legal process is overwhelming, disruptive and intimidating for people experiencing it for the first time. . . .

     

    Thankfully though, there are heroic people across the nation who refuse to simply lay down. Typically, they have no legal training and have not read the Constitution, but they know at a very profound level that the principles at the heart of the American Dream are real and vital to their future. And so they go to court in the firm belief that those principles are worth vindicating no matter how hard that may be.

     

    Congratulations to Jim Roos on a well-deserved victory. Thanks to his commitment and IJ’s legal advocacy, residents not just of Missouri, but also of Minnesota, Iowa, Arkansas, Kansas and the Dakotas (the seven states comprising the 8th Circuit) can now enjoy greater protection for their First Amendment rights.

     

    For more information about Roos’ case, visit IJ’s case page for St. Louis Free Speech.

    Over the holiday weekend, James Taranto of The Wall Street Journal had a great column discussing Justice Kagan’s dissent in last week’s decision striking down Arizona’s so-called “Clean Elections” law. Here’s a snippet:

     

    “The difficulty,” Kagan writes, “is in finding the Goldilocks solution--not too large, not too small, but just right.” Finding such solutions is the job of lawmakers, not judges: “Arizonans deserve the chance to reform their electoral system.” To sloganeer E.J. Dionne, that is an expression of judicial restraint. “Remember how sympathetic conservatives are supposed to be to the states as ‘laboratories of democracy,’ pioneering solutions to hard problems?” he grouses. “Tell that to the people of Arizona.”

     

    But there’s a world of difference between judicial restraint and judicial dereliction of duty. James Madison was not Goldilocks, and the First Amendment says, “Congress shall make no law.” (That applies to the states as well, thanks to the doctrine of incorporation.) The court is obliged to strike down laws violating freedom of speech even if they were enacted with the best of intentions.

     

    Be sure to read the whole thing. And for more on the properly role of judges and the importance of judicial engagement, check out IJ’s Center for Judicial Engagement.

    Make No Law readers may recall that my colleague Steve Simpson and I recently had an op-ed in The Wall Street Journal, discussing how comic-pundit Stephen Colbert's experience setting up a "Super PAC" had unintentionally demonstrated how many burdens on political speech still remain in the wake of Citizens United.  In the video below, John Samples, the director of the Cato Institute's Center for Representative Government, discusses the results of Colbert's recent appearance before the Federal Election Commission and explains why the joke is still on Colbert:

     

    IJ’s victory last Monday before the U.S. Supreme Court in our challenge to Arizona’s so-called “Clean Elections” law was a big win for people who believe that the First Amendment prohibits government from burdening spending on political speech. It was also a strong reaffirmation of the principle that “Individual freedom finds tangible expression in property rights.” The First Amendment would be largely meaningless if government could impose burdens on the use of property—whether in the form of money, or computers, or newsprint and ink—to broadcast speech beyond the range of our individual voices.

     

    fireworks

    The idea that money is often a critical component to the meaningful exercise of rights is hardly a modern insight.  Our Founding Fathers were well aware of the connection between property and political advocacy.  Indeed, this recognition is reflected in the closing words of the Declaration of Independence:

     

    And for the support of this Declaration, with a firm Reliance on the Protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.

     

    Here’s wishing everyone a safe and happy Independence Day.

     

    Image Source: timkelley

    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.

     

    UPDATE:


    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.

    Read more...

    CQ reports that more groups are taking advantage of the recent decisions in Citizens United and SpeechNow.org to set up independent speech groups for the upcoming elections. 

    After the Supreme Court upheld Moneythe 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.

    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.

    Sic semper campaign finance lawsEarlier 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. 

    caprealsmall

     

    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 shwashingtonould 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.

    The Center for Competitive Politics notes that very little has changed in the new version of the bill introduced by Senator Schumer.  Despite the removal of one special exemption for labor unions, the bill still "radically tilts the political playing field in favor of organized labor."

     

    The bill is still an attempt to stifle political speech that Congress doesn’t like. And it’s worth noting that the infamous NRA carve-out remains. The Hill reports that a vote on the legislation could come as early as Tuesday.

     

    If ever there were a time for a filibuster, this is it.

    Senator Charles Schumer, Democratic Chairman of the Senate Rules Committee, introduced S.3628, a new version of the DISCLOSE Act, in the United States Senate yesterday evening.  Early reports indicate that Schumer will be short-circuiting the committee process, which severely decreases the opportunity for debate and amendment on the 116-page bill.  Our friends at CCP, who have closely followed the progress of the DISCLOSE Act, say the word on the Hill is that Senator Schumer is attempting to get the new bill to the Senate floor for a vote on Friday.  Stay tuned for further analysis of this bill.

    Advocates of campaign finance “reform” often claim that the laws they promote will “protect” democracy.  But, in reality,   the opposite is true:  rather than fostering the political debate that is essential to the democratic process, the increasingly bewildering thickets of campaign finance regulations set endless traps for ordinary citizens and make retaining high-priced lawyers a necessity to participate in the political process.  Even with an army of specialized lawyers, however, navigating   the campaign finance jungle is far from easy.  Just ask Vice President Biden.

     

    Read more...

    Silenced by Red Tape

    The intent behind the DISCLOSE Act is to stifle speech, but its unintended consequence has been to reveal that its supporters operate in a political universe where the concept of irony has not yet been discovered.

     

    We’ve already pointed out that Senators Chuck Schumer, Russ Feingold, and Patrick Leahy have a website in which they allow people to show their support for the DISCLOSE Act while remaining anonymous. Our friends at the Center for Competitive Politics have discovered more such irony. Click here to read all about it.

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    According to this report in The Hill today, it is looking less likely that Senators Olympia Snowe (R-ME) and Susan Collins (R-ME) will support the DISCLOSE Act. But, as the wisdom of Yogi Berra teaches us, the fight to defeat this speech-squelching legislation isn’t over until it’s over.

    According to this recent report from The Hill, after Senator Scott Brown’s (R-MA) decision to oppose the DISCLOSE Act, the bill’s fate now rests in the hands of the following senators: Olympia Snowe (R-ME), Susan Collins (R-ME), Blanche Lincoln (D-AR) and Ben Nelson (D-NE):

     

    Democrats had hoped Brown would provide key support to move forward with the Disclose Act, which has been criticized by many Republicans and free-market groups as infringing on free speech. With Democrats in control of only 59 Senate seats, they need at least one Republican to reach the 60 votes necessary to overcome a filibuster and move forward with the bill.capitol-building

     

    With their hopes for a Brown yes vote now dashed, Democrats and watchdog groups are training their lobbying fire on GOP Sens. Olympia Snowe and Susan Collins, two Maine centrists who along with Brown have played decisive roles in a bevy of controversial summer bills.

     

    The pair have been vocal supporters of past campaign-finance bills but have been tight-lipped about how they plan to vote on the Disclose Act, although Snowe denounced the Supreme Court decision after it was first issued.

     

    Their offices did not respond to requests for comment from The Hill.

     

    Democrats also could lose the support of two centrist Democrats, Sens. Ben Nelson (Neb.) and Blanche Lincoln (Ark.) — who is locked in a tight reelection contest — making Republican support even more crucial to overcoming an expected GOP filibuster.

     

    Furthermore, the Daily Caller quotes Dianne Feinstein (D-CA) as saying on Tuesday that she won’t vote for the DISCLOSE Act as long as long as it has exemptions for the NRA and other groups. Last month, Senator Frank Lautenburg (D-NJ) said that he would not vote for the Act if it contained the NRA carve-out.

     

    As we’ve noted on various occasions, the DISCLOSE Act is a blatant attempt to stifle speech in order to protect incumbents’ reelection prospects. Whether it lives or dies is up to the above-mentioned Senators. If they still need help making up their minds, we suggest that they dust off their copies of the Constitution and read a certain amendment that talks about how they’re supposed to “make no law . . . abridging the freedom of speech.”

    In response to intense lobbying by a number of campaign “reform” groups, Senator Scott Brown has said that he will oppose the DISCLOSE Act because it “advances the political agenda of the majority party and special interests in an effort to gain a tactical and political advantage little more than 100 days before an election.” Brown contrasts DISCLOSE with McCain-Feingold, which he claims was “an honest attempt to reform campaign finance laws.”

     

    One can take issue with Brown’s view of McCain-Feingold—indeed, during debates over the law, members of Congress expressed more disdain for the negative ads it banned than for the corruption it was supposed to prevent—but I’m willing to cut Brown some slack because he at least understands that DISCLOSE is all about partisan politics. In fact, I’d go a lot farther than that. The DISCLOSE Act shows that the desire to censor speech is alive and well among America’s political elites.

     

    Of course, campaign reform groups are not giving up easily. As Roll Call reports, they’ve vowed to continue pressuring Brown “through a combination of personal lobbying and messaging efforts aimed at Massachusetts.” (For some reason, reformers never have a problem with efforts like these when they are carried out by people who support their agenda. But I digress.) Ironically, they’ve even threatened to “make the case over the coming weeks that his opposition is tantamount to supporting the kind of ‘Swift Boat’ ads that helped sink the 2004 presidential campaign of Brown’s home-state colleague, Sen. John Kerry (D).”

     

    Wait, doesn’t that count as “Swift Boating” itself? This is all so confusing. What isn’t confusing is the contempt supporters of DISCLOSE have for the First Amendment and for anyone who dares disagree with their political agendas.

     

    Yesterday the U.S. Circuit Court of Appeals for the Second Circuit issued an important ruling (.pdf) for First Amendment rights, striking down Connecticut’s unconstitutional “matching funds” law in the case of Green Party of Connecticut v. Garfield.  The court specifically rejected the Ninth Circuit’s decision in McComish v. Bennett that refused to strike down Arizona’s largely identical matching funds scheme.  The Institute for Justice, which has been challenging Arizona’s law in McComish, wrote a friend-of-the-court brief (.pdf) in the Second Circuit in support of the victorious Green Party.

     

    As we’ve described previously on this blog, matching funds discourage privately funded candidates and outside groups from speaking because, if those groups spend more than a certain amount on political speech, the government starts cutting checks directly to their government-financed opponents.  The Second Circuit’s ruling deepens a split among the federal courts of appeals on whether matching funds are constitutional, making it all the more likely that the U.S. Supreme Court will grant IJ’s forthcoming appeal in the McComish case.

     

    If the Supreme Court takes on the issue—as it should—matching funds will likely be held unconstitutional.  And that’s not just our opinion—as the Associated Press reports, even so-called “reformers” are starting to look for alternatives:

     

    “The handwriting was on the wall with the trigger provisions” when the Supreme Court made its ruling [temporarily halting Arizona’s matching funds], said Karen Hobert Flynn, vice president for state operations at Common Cause and a Connecticut resident. “They signaled that they don't like trigger provisions and they're on their way out.”

    Nick Nyhart, president and CEO of Public Campaign, a Washington, D.C.-based public financing advocacy group, said there are other ways to help publicly financed candidates who face wealthy opponents.

     

    We will continue to keep our readers updated as we move towards appealing McComish to the Supreme Court.

    castingballotThe Los Angeles Times reports on spending by independent groups in three California elections, raising alarm that “insurance companies, lawyers and other interests were calling most of the shots in the three campaigns.”  These concerns were echoed by Dan Schnur, chairman of the California Fair Political Practices Commission (FPPC), who reacted to this independent speech by claiming that it “makes a mockery of the rules designed to create a level playing field.”

     

    These sorts of overwrought claims are distressingly common in reporting on campaign finance, and this isn’t the first time the FPPC has been critical of the role of independent speech in elections (see, for example, their 2008 report on the phenomenon, the cover of which features the California capital building being menaced by a giant gorilla hurling $100 bills).  But these claims also fundamentally misunderstand the role that independent speech plays in elections.

     

    Contrary to the view of many proponents of campaign finance regulation, voters are not automatons—interest groups cannot simply pour opinions into their heads.  Voters must be persuaded, and the groups profiled in the Los Angeles Times article are simply attempting, through independent political advocacy, to persuade voters to take action at the ballot box.  Those efforts may succeed or fail and, as the FPPC’s 2008 report shows, such efforts often do fail.  But as the Supreme Court recognized in Citizens United v. FEC (.pdf), “[t]he fact that a corporation, or any other speaker, is willing to spend money to try to persuade voters presupposes that the people have the ultimate influence over elected officials.”  In other words, it’s the voters who call the shots.

    The plaintiffs in Minnesota Citizens Concerned for Life, et al. v. Swanson, et al., 10-cv-2938, which we discussed here last week, have filed a motion for a preliminary injunction.  The motion is scheduled to be heard before the district court on August 20, 2010, although the plaintiffs have asked for expedited consideration.

     

    The motion argues, among other things, that after Citizens United “The only constitutionally cognizable interest in limiting contributions is the interest in preventing quid-pro-quo corruption.”  This interest, under the seminal case Buckley v. Valeo (1976), is only implicated with “large” contributions, so contributions with a per-donor cap, such as the $2,300 cap in the last federal election cycle, satisfy that interest, even when a corporation is giving the money to a party or candidate.  Thus, according to the motion, corporations should be able to give money directly to parties and candidates, something currently illegal under Minnesota, and federal, law.

     

    We’ll keep a close eye on this case for our readers.

    Click here to go to his new column on these topics. He begins:

     

    Two splendid recent developments have highlighted how campaign finance "reforms" have become the disease they pretend to cure. In Arizona and in Congress, measures ostensibly aimed at eliminating corruption or the "appearance" thereof illustrate the corruption inherent in incumbents writing laws that regulate political competition by rationing political speech.


    That’s exactly right: The idea that incumbents write “campaign finance” laws with no eye toward protecting their reelection prospects is—as we have previously noted—absurd.  

     

    For more of our recent commentary on the DISCLOSE Act, click here, here, and here.

     

    IJ is challenging the matching funds provision of Arizona’s “Clean Elections” system. For some of our recent commentary on that system, click here and here.

    finger-pushing-dominosIn a new case that builds off of IJ’s challenge to Arizona’s so-called “clean elections” system, Florida gubernatorial candidate Rick Scott is challenging that state’s similar system of taxpayer-financed campaigns.  Both  states' laws discourage nonparticipating candidates from robustly exercising their First Amendment rights, because once a nonparticipating candidate  spends more than a certain amount  to speak out to the electorate, the government starts writing checks directly to his opponent.  As political scientist David Primo documented (.pdf) in the Arizona case, the constant risk of triggering these matching funds creates incentives to delay or withhold spending on political speech, skewing the political debate.

     

    In addition to Mr. Scott’s lawsuit, Floridians will have the opportunity to vote in November for a constitutional amendment that would repeal Florida’s system of taxpayer-financed elections.  And if the Supreme Court accepts review of IJ’s challenge to Arizona’s law—as it has hinted it might—it could invalidate these schemes nationwide.  One way or another, it looks like the days of taxpayer funds being used to squelch political speech in Florida are numbered.

    Over at the Volokh Conspiracy, Eugene Volokh has a couple of interesting observations on the Washington Post's report that unions are outspending corporations on campaign ads.

    There’s a new campaign finance lawsuit challenging the State of Minnesota’s various restrictions on corporations engaging in political speech.  The case, Minnesota Citizens Concerned for Life, et al. v. Swanson, et al., 10-cv-2938, was filed yesterday in the U.S. District of Minnesota.  Judge Donovan Frank is the judge.

     

    According to the complaint (not publically available online yet), the plaintiffs argue that Minnesota’s new law, although recently amended in the wake of the Supreme Court’s ruling in Citizens United, nevertheless violates the First Amendment.  This is because, among other things, it requires corporations to spend their money advocating the election or defeat of a candidate through a political fund and not directly from their treasuries.  This argument relies upon the Court’s statements in Citizens United that forming separate entities, such as political action committees (“PACs”) “are burdensome alternatives; they are expensive to administer and subject to extensive regulations.”  It’s similar to the argument IJ made, in the non-corporate context, in SpeechNow.org v. FEC.

     

    Interestingly, the complaint also challenges Minnesota’s ban on corporations directly contributing money to candidates.

     

    Jim Bopp of the James Madison Center is an attorney on the case, as is the Minnesota firm of Mohrman & Kaardal.

    union_labelWhen the Supreme Court issued its decision in Citizens United v. FEC, many said that it would lead to corporations using their vast treasuries to overwhelm their competition. The New York Times, for instance, said that the opinion “opened the floodgates for big business and special-interest dollars to overwhelm American politics.”

     

    The evidence from several months later, though, shows that these dire predictions have not quite panned out. The Washington Post and Mother Jones have both reported about a number of new organizations that have begun to speak in the wake of Citizens United.  Rather than General Electric and Microsoft doing the talking, though, it’s been the AFL-CIO, the SEIU and the AFSCME. All three unions have run radio and television ads in recent primaries that explicitly called for the election or defeat of candidates.

     

    This kind of “express advocacy” was illegal until the Supreme Court held in Citizens United that the First Amendment prohibits laws, passed by Congress, that prevent groups of citizens from speaking out during elections. Hopefully other groups - including corporations - will soon join these unions and make their voices heard.  After all, the Supreme Court in Citizens United said that “it is our law and our tradition that more speech, not less, is the governing rule.”  Perhaps if groups continue to speak out and the republic does not end as some have predicted, we will one day come to view the campaign finance laws in much the same way we now view the alien and sedition acts.

     

    Image Source: Beige Alert

    mouthtape“We want the DISCLOSE Act” is a website at which people can be "citizen co-sponsors" of the Act by signing an online petition.  The site contains a list of these "co-sponsors," but it provides an option, taken advantage of by several signers, to remain anonymous.  Might this option exist because the folks behind the petition effort—Senators Chuck Schumer, Russ Feingold, and Patrick Leahy—know that more people will sign if they don’t have to reveal their personal information to the public?

     

    Of course it does.  Something to keep in mind the next time an advocate of mandatory disclosure laws—including the DISCLOSE Act, which Senator Schumer has admitted is intended to deter corporations from speaking—tells you they don’t chill speech.

    The Boston Globe reports, somewhat belatedly, on the Federal Election Commission’s decision last month to classify the nonprofit group Citizens United as a “press entity.”  The consequence of that decision is that Citizens United—which has to date produced 14 documentaries—is spared from the intrusive and burdensome disclosure requirements that often apply to groups that spend money on political speech.

     

    Predictably, supporters of stringent campaign finance laws are dismayed.  What’s remarkable, though, is that none of them express concerns with the press exemption generally.  Yet the very existence of the press exemption seriously undermines the case for campaign finance disclosure for independent groups.

     

    When a traditional press entity like, say, the Boston Globe, publishes a political editorial, readers don’t have access to information about the paper’s financing.  Instead, they have to evaluate those political arguments on their merits.  So-called “reformers” seem to have no problem with this.  But if we trust the public to rationally evaluate corporate messages that just happen to come from the institutional press, there is absolutely no reason why we should not trust the public to rationally evaluate messages from nontraditional forms of media, whether it be a blog post, a 30-second television ad, or a two-hour documentary.

     

    The real outrage is not that Citizens United was deemed worthy of the press exemption, but that others who engage in equally valid exercises of their First Amendment rights do not enjoy that same privilege.  No one should have to prove to a government bureaucrat that they have earned the right to speak free from government burdens—the First Amendment guarantees that right to all of us.

    Proponents of campaign finance regulation often defend the constitutionality of their proposals with the slogan “money isn’t speech.”  But as scholars like Eugene Volokh have recognized, this facile argument is easily debunked by applying it to other constitutional rights:

     

    Likewise, money isn’t education, and it isn’t lawyering. Yet a law that capped private school tuitions at $2000 (not just limited the amount of government-provided scholarships, but capped private spending by parents for tuition) would be a serious, likely unconstitutional, burden on the right to educate one’s child at a private school. Likewise, a law that barred wealthy defendants from spending more than $20,000 — or even $200,000 — for assistance of counsel would violate the Sixth Amendment. Even if for some reason you thought that these laws should be upheld, the response that “it is quite wrong to equate money and [education / lawyering]” would be an unsound response.

     

    Moreover, this idea—that money is often a critical component to the meaningful exercise of rights—is hardly a modern insight.  Our Founding Fathers were well aware of the connection between property and political advocacy.  Indeed, this recognition is reflected in the closing words of the Declaration of Independence:

     

    And for the support of this Declaration, with a firm Reliance on the Protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.

     

    Here’s wishing everyone a safe and happy Independence Day.

    It looks like people are waking up to the fact that the DISCLOSE Act’s whole raison d’etre is to squelch speech.  As DISCLOSE made its way through the House, only a few organizations were talking about how its sponsors and supporters frankly admitted that they were trying out to silence the voices of people and groups they didn’t like.

     

    In recent days, though, that trickle of opposition has become a torrent.  Editorial boards, opinion writers, and columnists from across the country and on both sides of the political aisle are criticizing the DISCLOSE Act and the chilling effect it would have on free speech.  Some have even noted that the DISCLOSE Act, if passed, would kill off the traditional 30 second political ad.  After all, who wants to pay for an ad in which almost half the time must be devoted to government-mandated disclaimers?

     

    It’s good to see that more and more people are starting to talk about the DISCLOSE Act.  While the House has passed the DISCLOSE Act, the Senate has yet to take up the bill.  As the next act in this play unfolds, Americans should continue to stand up in favor of the First Amendment and ensure that everyone, not just certain entrenched interests, can speak freely about candidates and the issues that they care about the most.

    Along with Joseph Gay, one of IJ’s Constitutional Law Fellows, I’ve got an op-ed on the DISCLOSE Act in today’s Daily Caller. It begins:

     

    What’s more important than putting together a new budget for the federal government? If you’re one of the 219 representatives whose vote secured the passage of the so-called “DISCLOSE Act” in the House last Thursday, the answer is simple:  providing incumbents with job security.

     

    For the rest, click here.  

    Politico recently reported that Senator Chuck Schumer has been sending out fundraising letters.  No problem there, but in his pitch, Schumer again admits why he sponsored the “DISCLOSE” Act in the U.S. Senate.  schumerHis goal is “reining in corporate spending on political ads through the DISCLOSE Act.”

     

    Hmm.  A politician wants to silence his opposition and is willing to use government force to do so.  It is a shame we don’t have a Constitution in place that would stop him from abusing his power and U.S. Supreme Court precedents directly on point that would say such actions would be unconstitutional.

     

    Oh, wait.  We do.

     

    Schumer has said that the “deterrent effect” that the DISCLOSE Act would have on corporations and other groups’ speech “should not be underestimated.”  But as we at IJ (and more importantly, the Supreme Court) have said time and again, it is not for the government to decide who may speak and who must remain silent.  The First Amendment protects the freedom of speech for all Americans, not just those whom the party in power likes.

     

    Image Souce: Atomische • Tom Giebel

    Hans von Spakovsky has a terrific article at Heritage's blog arguing that the DISLCOSE Act is the modern equivalent of the Alien and Sedition Acts.  Check it out.

    Last week I, along with Ilya Shapiro of Cato, debated Rick Hasen and Jamin Raskin over the Citizens United decision.  Here's a video of the debate.  Enjoy.

     

        

     

     


    John McCain is walking a tightrope.  In his previous life, he served as the lead Republican voice in favor of campaign finance “reform” and was one of the key sponsors of the Bipartisan Campaign Reform Act of 2002.  In fact, his role in that legislation was so vital that the law is frequently referred to as “McCain-Feingold.”

     

    Among other things, one provision of McCain-Feingold banned corporations and unions from running “electioneering communications”—advertisements that mentioned federal candidates by name within a certain number of days before an election.  During oral arguments in Citizens United v. FEC last year, Justice Scalia said, “I doubt that one can expect a body of incumbents to draw election restrictions that do not favor incumbents.”  Senator McCain took umbrage at that and decried Scalia’s comment as ”an affront” to the ”decent, honorable men and women who have served this nation in these halls for well over 200 years.”

     

    The Senator McCain of 2009 therefore saw “McCain-Feingold” as the product of a publicly spirited Congress that is only looking out for Americans’ best interests.  So he must view other politicians’ campaign finance efforts with equal magnanimity, right?  Not quite.  After the House passed the DISCLOSE Act last Friday, McCain jabbed, “It’s no surprise that Democrats craft a bill that favors their supporters.”

     

    So I guess the rose-colored glasses are off now.  Here’s to hoping that Senator McCain has had an epiphany and comes to realize that when Members of Congress legislate on campaign finance matters, they typically design the laws to give themselves a leg up on their political opponents.  The Founders knew of this constant temptation, which is why they said in the First Amendment that “Congress shall make no law . . . abridging the freedom of speech.”