Congress Shall Make No Law...

    The Philadelphia Inquirerand its on-line site,, have been covering a story that features law makers taking large amounts of money, making promises for votes, a potential cover-up and a politician contemplating suing the newspaper that broke the story.


    The story seems to have it all, from a campaign finance reformer’s standpoint. Politicians stuffing money into their pockets from a shady character, undercover recordings, promises of changing votes for money and the suggestion of a lawsuit against the news organization by the elected official at the center of the story. It was precisely this kind of scandal that led to Arizona’s “Clean Elections” system and the Federal Election Campaign Act. Normally, this would lead to reformers calling for new laws to “clean up” Pennsylvania politics (putting aside the fact that taking bribes is already illegal under Pennsylvania law).


    Oddly, however, there has been little coverage of this story by the most strident organizations in favor of campaign finance laws. For instance, on the date that covered the threat by the elected official at the center of this story to sue for defamation, the New York Times featured twostories about the Koch brothers engaging in legal political activities. As of the date of this blog, searches on the Times, Common Cause and Public Citizen websites do not reveal any stories covering the facts uncovered by, but dozens of entries about the Kochs.


    It appears to be a mystery as to why some campaign finance reformers would ignore such a relatively rare opportunity to promote their view of American politics as being awash in a sea of bribery, until one realizes that the elected official in question, Pennsylvania Attorney General Kathleen Kane, is an up-and-coming Democratic politician with an eye on federal office. On the other hand, the Koch brothers are most associated with (legal) financial support for Republican officials and policies.


    Unwittingly, the selective outrage of some campaign finance reformers betrays one of the dirty secrets of attempts to regulate political speech, namely, that it is human nature for people to treat those with whom they agree better than those with whom they disagree. Played out in the context of law enforcement, giving the government power to prosecute people for participating in peaceful political activity means that, often, the government will reserve its zeal for those who oppose whomever is in power—Democrat or Republican. If the New York Times will engage in selective outrage, why wouldn’t the Federal Election Commission or the Justice Department? And, if that is the case, why would people in a politically diverse nation want to give the government power to prosecute political disagreements?



    Over Christmas break, the New York Post published my op-ed on the Moreland Act Commission and what more we can expect from them in the coming year.  Also check out the op-ed in the Albany Times-Union from Professors Jeffrey Milyo and David Primo regarding the Commission’s preliminary report from earlier in the month.  The bottom line is that the solution to actual corruption in New York politics is not going to be achieved with spending taxpayer money subsidizing politicians or further restricting free speech rights. 

    President Obama urged his supporters to sell the Affordable Care Act during this year’s Thanksgiving meal.   He received significant criticism from many for what was perceived to be an attempt to inject politics into a time for family and friends.  But even the architect of “Health Care for the Holidays” probably would have recoiled from a Thanksgiving Tweet from the Center for Responsive Politics’ site as having gone a step too far: 



    “Got a politically inclined relative at the Thanksgiving table? See which candidates they have supported:



    Putting aside the question of why someone thinks snooping into their relatives’ political activities at the dinner table is remotely good manners, this Tweet nicely summed up how hollow the “follow the money” rhetoric of the pro-regulation side of the disclosure debate is.  Here, (an organization whose logo is an unblinking eyeball, like some campaign finance reform edition of the Eye of Sauron) wanted people to “follow the money” not to uncover corruption or influence, but to get information on political giving and use it against family members.  While they speak of disclosure as a tool to battle the influence of large donors, pro-regulation organizations seem untroubled (and often encouraged) by the fact that forcing people to disclose even the most picayune political activity and posting that information on a publicly accessible database leaves practically all political donors open to retaliation and coercion by their neighbors, bosses, customers, shop stewards, and even their family.  Surely, having a relative blurt out one’s political giving at the Thanksgiving table probably would do little to encourage even modest giving in the future, which was perhaps the intended result.  In other words, any “transparency” that resulted from this Tweet almost certainly did not reduce corruption, but it probably helped to ruin at least a few Thanksgivings.   

    Two top-notch organizations have added new blogs that will discuss campaign finance issues, among other things.


    First, the Executive Branch Project at the Federalist Society for Law and Public Policy Studies has created the Executive Branch Review Blog, which addresses all things executive branch. Here’s the description of the effort:


    An increase in Federal executive branch regulatory activity – whether through executive order, formal or informal administrative agency action – has been noted by many across the country. In launching Executive Branch Review, the Practice Groups of the Federalist Society seek to prompt a national debate about whether there has been an uptick in such regulatory activity, and, if so, with what consequence. The project will provide an objective resource that identifies major government activity, and provides a forum for debate and discussion about whether such regulation constitutes a form of legal and regulatory overreach.


    As both the Federal Elections Commission and the Internal Revenue System are both executive agencies, the blog promises to have some terrific insight on the issues touching upon (if not consuming altogether) these organizations.


    Second, Perkins Coie LLP’s Political Law group has begun a blog on election law, In the Arena. The group is one of the best and most active in the country and the blog reflects the viewpoint of pragmatic practitioners and a realistic approach to what regulation can and cannot do. (Full disclosure: I was an attorney at Perkins Coie before coming to IJ.)


    For people who follow campaign finance and constitutional issues, both are well worth a bookmark.

    Fans of the Institute for Justice and should tune in tonight at 9:00 p.m. ET to Dr. Diana Hsieh's live Internet radio show, Philosophy in Action.  My colleague Paul Sherman will be the guest, discussing campaign finance, the First Amendment, and the 2012 election.  Here's more information on the show:


    Many people support restrictions on spending in elections, particularly by corporations, in the name of "transparency" and "accountability." Institute for Justice attorney Paul Sherman takes a very different view. He claims that any restrictions on campaign spending are violations of freedom of speech, and he has successfully argued that view in courts across the country.


    To join the live broadcast and its chat, just point your browser to Philosophy in Action's Live Studio a few minutes before the show is scheduled to start. By listening live, you can share your thoughts with other listeners and ask follow-up questions in the text chat.


    If you miss the live broadcast, you'll find the audio podcast from the episode posted in the archive: Radio Archive: 9 January 2013


    For more about Philosophy in Action Radio, visit the Episodes on Tap and Show Archives.

    With Election Day mere hours away, the Campaign Legal Center is taking a final swipe at the amount of money Americans are spending communicating with voters.  Aghast that total election spending may pass $6 billion, the Center crunches the numbers on what that money could buy if it weren’t spent on political speech:


    With $6 billion we could create 103,500 jobs in the United States.


    With $6 billion you could buy 171,428,571,429 gallons of gas for your car - that's enough gas for 155,844,156 American households.


    With $6 billion you could buy 1,734,104,046 gallons of milk - enough for 8,627,383 people for an entire year.


    With $6 billion NASA could build 2 new Mars Rovers.


    With $6 billion, 1.5 million students could receive Pell Grants to make college more affordable.


    We won’t quibble with CLC’s numbers (except to note that milk is not 100 times more expensive than gasoline). But we will note that CLC’s list omits something else that could be done with $6 billion.


    With $6 billion, we could fund the entire federal government . . . for 14 hours.


    In the coming year, the federal government will spend $3.8 trillion.  That’s really big money.  And as long as the federal government controls that kind of money, there will be no shortage of individuals and groups willing to spend money to express their opinion on who should be holding the purse strings.  Indeed, that’s why much of the growth in political spending has been driven by the growth of the federal budget.


    At IJ, we don’t think $6 billion dollars is too much money for Americans to spend on political speech.  In fact, we don’t think the amount of money Americans choose to devote to political advocacy is any of our business.  In a free country, speakers can decide for themselves how much of their money and time they wish to spend making their views heard.  But for those who do think that $6 billion could be put to better use, the solution is clear:  Unless you reduce the amount of politics in money, you’ll never reduce the amount of money in politics.

    Another round of elections, another chance to relearn an old lesson: Money does not buy elections. This time, Politico learns that “In six of the most hotly contested GOP primary contests this cycle, the best funded candidate lost.”


    That money does not buy elections is a fact that has been borne out time and again. But so many are so invested in the contrary myth that they just won’t let it go. Take Mike McCabe of the Wisconsin Democracy Campaign, who is quoted in the Politico piece as saying “It’s the exception to the rule. Ninety-five percent of the time, the candidate who spends the most wins.” But Mr. McCabe is getting cause and effect mixed up.


    As Professor Jeffrey Milyo noted in a recent Freakonomics Quorum,


    It is true that winning candidates typically spend more on their campaigns than do their opponents, but it is also true that successful candidates possess attributes that are useful for both raising money and winning votes (e.g., charisma, popular policy positions, etc.). This “reverse causality” means that campaign spending is potentially as much a symptom of electoral success as its cause.


    Or, as Stephen Dubner put it, “winning an election and raising money do go together, just as rain and umbrellas go together. But umbrellas don’t cause the rain.”


    So, we have yet more evidence that money does not buy elections. Instead, money facilitates speech. It buys exposure—the opportunity to make your speech heard by voters. It does not and cannot buy elections because the voters are ultimately the ones deciding who to vote for. And—contrary to the belief of “reformers”—voters do not just blindly embrace those campaigns with the most money for advertising.


    Americans did not race out and embrace New Coke or the Ford Edsel just because big advertising campaigns said they should. Neither do they embrace Edsel-like candidates just because big advertising campaigns say they should.

    The First Amendment Center has published an interesting post discussing important solitary dissents in the history of First Amendment law. Among their selections are Justice Harlan Stone’s dissent in Minersville School District v. Gobitis, arguing that public school students could not be required to salute the flag or recite the pledge of allegiance.  Although Stone lost that battle, he ultimately won the war—his view became the law of the land just three years later in West Virginia Board of Education v. Barnette, which reversed Gobitis.


    Absent from the list, though no less noteworthy, is Justice Clarence Thomas’ solo dissent in Citizens United v. FEC. Although that case produced a well-known 5-4 split on whether corporations and unions should be permitted to fund political advocacy, it also produced an 8-1 split on whether the group Citizens United could be forced to disclose the identities of those who funded its political speech. Justice Thomas alone dissented, arguing forcefully that “Congress may not abridge the ‘right to anonymous speech’ based on the ‘simple interest in providing voters with additional relevant information.’” It remains to be seen whether Thomas’ view of anonymous speech will ultimately prevail, but IJ is not alone in hoping that it will and fighting to make that happen.


    For more on Justice Thomas’ arguments in support of anonymous speech, check out this short video featuring Cato Institute scholar Nat Hentoff:



    The Federal Election Commission has been in many fights about free speech. But now it’s in a fight with free speech, or rather with “Free Speech,” the name taken by a group of three Wyoming residents who, represented by the Wyoming Liberty Group, yesterday filed a federal lawsuit against the FEC. And, for once, a case’s name—Free Speech v. FEC—reveals precisely what’s at stake.


    The lawsuit focuses on an important, unresolved issue in campaign-finance law. Free Speech wants to engage in independent political speech, but cannot be sure whether or not its speech will trigger legal obligations that it register with the FEC and report information about its political activities. The group sought guidance from the FEC, but the law is so ambiguous that the FEC’s commissioners deadlocked, leaving Free Speech with no more information on how to comply with the law than it started with.


    The legal issues in the case—which are detailed in Free Speech’s Complaint—are complicated. But the implications of this case could be profound. As economist Jeff Milyo of the University of Missouri detailed in Campaign Finance Red Tape, having to register as a political committee and deal with all of the associated legal requirements is a significant burden, particularly for small groups. A victory for Free Speech would remove many of these burdens and bring much-needed clarity to the law.


    More information on the case, including case-filing documents, is available here.

    In the hysteria that continues to surround the U.S. Supreme Court’s 2010 ruling in Citizens United v. FEC, one often-overlooked fact is that, at the time Citizens United was decided, 26 states already allowed for-profit corporations to spend unlimited amounts on political advertising (the 24 that prohibited spending are listed here).  Many of these states also allowed corporations to make contributions directly to political candidates, and some, including Utah and Virginia, allowed unlimited corporate contributions directly to candidates.



    That’s right—despite predictions that the corporate spending unleashed by Citizens United posed a dire threat to the Republic, such spending was already the norm in a majority of states, and there is not the slightest evidence that those states were any worse for it.


    This fact is worth keeping in mind now that 22 states and the District of Columbia have submitted an amicus brief urging the Supreme Court to affirm the Montana Supreme Court’s ruling in the American Tradition Partnership case, which upheld Montana’s ban on corporate expenditures in clear defiance of the Supreme Court’s ruling in Citizens United.


    The 22 states that signed the brief are:


    Arkansas, California, Connecticut, Delaware, Hawaii, Idaho, Illinois, Iowa, Kentucky, Maryland, Massachusetts, Minnesota, Mississippi, Nevada, New Mexico, New York, North Carolina, Rhode Island, Utah, Vermont, Washington, West Virginia and the District of Columbia.


    Of those states, however, only nine—Connecticut, Iowa, Kentucky, Massachusetts, Minnesota, New York, North Carolina, Rhode Island and West Virginia—prohibited corporate expenditures before Citizens United.  The remaining 13 states and the District of Columbia not only permitted unlimited corporate expenditures, but also permitted corporations to make contributions directly to candidates (and recall that Utah actually permitted unlimited corporate contributions).


    If one needed more evidence that much of the vitriol aimed at Citizens United is about scoring political points, and not about any principled opposition to that decision, this is it:  13 states signing onto a brief urging the reversal of a decision that had no effect on their laws.

    Earlier this week the Huffington Post reported on a recent press conference in Washington, D.C., about efforts to amend the First Amendment to overturn Citizens United v. FEC. The headline read “Citizens United Amendment Urged By Grassroots, Federal Lawmakers.” In the story, U.S. Senator Tom Udall says, “We have developing here a grassroots movement.”


    Who, exactly, are the “grassroots” to which they refer? According to the story, 14 people spoke at the press conference. Of the 14, 13 were elected officials; one was a private citizen.


    In other words, approximately 93 percent of the people calling to overturn the decision were people currently in power—the very people who stand to benefit most from shutting down the independent political voices that Citizens United helped free. This was not the grassroots; at best, it was a grassroot (note the singular noun).


    The make-up of the press conference tells us everything we know about the push to reverse Citizens United. Many elected officials—like those at this press conference—do not like other people’s free speech and they especially do not like it when critical speech is directed at them. If they succeed in amending the Constitution to overturn Citizens United, these same officials could pass laws that would make it impossible for people to amass enough resources to challenge their actions, thus effectively immunizing themselves from criticism.


    This “grassroot” press conference demonstrates that the debate over Citizens United is not about “corporate personhood,” “fighting oligarchy” or “defending democracy.” It is about the desire of those in power to ensure that they remain free from criticism and political challenge. That is a particularly poor justification to start editing freedoms out of the First Amendment.

    Some readers of Make No Law may have seen a recent study released by the Center for Public Integrity concluding that New Jersey is the state with the lowest risk of corruption in the country.  Writing in The Wall Street Journal today, IJ Attorney Paul Sherman and University of Rochester Professor David Primo take a skeptical look at that study and uncover many problems:



    For starters, the study never actually defines what it means by corruption. Instead, the risk of corruption is defined by the presence or absence of certain laws—such as strict campaign-finance limits and lobbying disclosure—that good-government groups promote. But without a working definition of corruption, it is impossible to determine whether these sorts of reforms are the appropriate remedy.


    Is regulation of state insurance commissions, for example, as important as lobbying disclosure as a means to combat corruption? Who knows? The study gives equal weight to both. Yet that's like assuming aspirin is as good as a herbal supplement because some people think both can cure headaches.


    Wall Street Journal subscribers can read the whole thing here.

    Today is the two-year anniversary of the D.C. Circuit Court of Appeals’ unanimous ruling in v. FEC, holding that limits on the right of Americans to pool money to pay for independent political advertisements are unconstitutional. That ruling made possible the creation of so-called “super PACs,” which have played a major role in the 2012 Republican presidential primaries. The Institute for Justice is proud to have worked with the Center for Competitive Politics to represent the plaintiffs in, and is committed to defending that ruling in the courts of law and the court of public opinion.


    More information:


    IJ’s press release about anniversary


    CCP’s press release


    A brief history of super PACs


    wisconsinYesterday the Wisconsin Supreme Court issued a very anticlimactic decision in a challenge to one of the most speech-squelching laws in the country.  The court split 3-3 over whether Government Accountability Rule 1.28 violates the First Amendment and the Wisconsin Constitution by requiring everyone to register with the government who, in the 60 days before a general election, spends more than $25 and so much as mentions a candidate for office in a negative or positive light.  Three justices thought the rule was constitutional while the other three thought the case should not have been granted in the first place.  The case was an “original action,” meaning it was only ever before the Wisconsin Supreme Court, so the legal effect of the case is it’s as though it never happened.


    We have commented on this case before, and the Institute for Justice filed a friend-of-the-court brief (pdf) in the case last spring.


    But, this isn’t the end of the story.  There are two pending federal court challenges to Rule 1.28 that have been frozen in carbonite since the Wisconsin Supreme Court accepted the case in late 2010.  Those lawsuits can now proceed, so stay tuned . . .

    Readers of Make No Law may recall the case of Bluman v. FEC, a challenge to the federal law that prohibits noncitizens, even those who lawfully reside in the United States, from spending any money to influence state or federal elections. In January the U.S. Supreme Court summarily affirmed a lower-court ruling upholding the law.


    The Institute for Justice had filed a brief urging the U.S. Supreme Court to review the case and to strike down the law as it applied to aliens lawfully living in the United States. Our reasons for filing the brief were twofold. First, we believe that the First Amendment protects a preexisting natural right to engage in peaceful political speech and association—a right on which citizens and permanent residents hold no monopoly. Second, we knew that a victory for the government would be used in future cases to justify restrictions on U.S. citizens and, ultimately, to undermine the Supreme Court’s landmark ruling in Citizens United.


    Less than two months after the Supreme Court’s summary affirmance in Bluman, that is precisely what we have seen. First came the Montana Supreme Court’s defiant ruling in Western Tradition Partnership, Inc. v. Attorney General, which cited Bluman to argue that the Citizens United decision was a narrow, fact-bound ruling, rather than the broad repudiation of government censorship that it obviously was. And now we have this argument from the Federal Election Commission in Wagner v. FEC, a challenge to a federal ban on political contributions and expenditures by federal contractors:


    Contrary to the plaintiffs’ suggestion that only concerns about corruption or its appearance can justify FECA restrictions . . . protecting the integrity of the federal government from improper outside influence has been deemed an adequate basis, by itself, to justify a complete ban on contributions by certain individuals. See Bluman v. FEC, 800 F. Supp. 2d 281, 292 (D.D.C. 2011) (upholding ban on foreign national contributions in 2 U.S.C. § 441e), aff’d, 132 S. Ct. 1087 (2012).


    That the FEC would latch onto Bluman as a justification for censoring speech by U.S. citizens is not surprising— Bluman is one of the FEC’s few recent victories and, as the Supreme Court noted in Citizens United, the FEC’s “business is to censor.” And it still remains to be seen what will happen on the merits in both the Wagner case and Western Tradition Partnership (many are predicting that the Supreme Court will summarily overrule the Montana court’s ruling). But these cases demonstrate that whenever we make exceptions to the principles of free political speech and association that are enshrined in the First Amendment, proponents of speech restrictions will invariably try to expand those exceptions. That’s why IJ got involved in Bluman v. FEC and why we will continue to vigorously defend the Citizens United ruling going forward.

    Over the weekend we blogged about Justice Ruth Bader Ginsburg’s statement regarding a stay issued by the U.S. Supreme Court in American Tradition Partnership, Inc. v. Bullock, the decision in which the Montana Supreme Court thumbed its nose at the ruling in Citizens United. Writing at the blog of the Center for Competitive Politics, friend of IJ Brad Smith has a great post taking down claims that Justice Ginsburg’s statement indicates that she is “ready to speak truth to power” when—as is widely expected—the Court takes the case. As Smith notes:


    Justice Ginsburg is a member of the Supreme Court of the United States. She is power. Truth? What truth was there in her little Western Tradition Partnership concurrence? Didn’t she just offer an opinion, slandering both donors and candidates, without any facts at all?


    Well said. The rest of Smith’s post is available here. And be sure to check out the rest of CCP’s blog, which provides consistently great coverage of campaign finance news from a pro-First Amendment perspective.

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    The U.S. Supreme Court has unanimously stayed the decision of the Montana Supreme Court in American Tradition Partnership, Inc. v. Bullock, in which the Montana court explicitly thumbed its nose at the U.S. Supreme Court and the Citizens United decision. The stay itself is not surprising—most assumed that the Court would stay the Montana court’s version of jury nullification and many expect the Supreme Court to summarily reverse the lower court.


    What is surprising, however, is the separate statement of Justice Ginsburg, joined by Justice Breyer (notably, Justices Sotomayor and Kagan did not join the separate statement). Justice Ginsburg urges the Court to grant certiorari and reexamine the Court’s conclusion in Citizens United that independent expenditures do not cause corruption “in light of the huge sums currently deployed to buy candidates’ allegiances.”


    What a cynical and insulting way to describe the activities of Americans, like IJ clients and David Keating, who use their resources to attempt to persuade their fellow citizens of the wisdom of their political view.


    Interestingly, Justice Ginsburg cites no source for this remarkable accusation and it is not clear if she means that all expenditures are designed to “buy candidates’ allegiances” or just some. Regardless, if Justice Ginsburg believes that people spend money in elections “to buy candidates’ allegiances” and not to persuade others that their political view is correct, then her view that the government should be able to throw people in prison for producing a film or book about politics finally makes sense. Fortunately, other justices on the Court have, for now, more respect for American voters, candidates, and political activists that Justices Ginsburg and Breyer.


    Perennial campaign-finance scold Fred Wertheimer from Democracy 21 has never seen a speech restriction he didn’t like.  So it comes as no surprise that Wertheimer recently published an opinion piece on declaring the Super PACs are, in his words, “a disaster for democracy” and an “unmitigated disaster.”  Why?  Well, because Super PACs let certain people speak more than Wertheimer likes.  So his proposed answer is to resurrect the long-dead DISCLOSE Act from the grave in order to get those disfavored speakers to shut up.



    In its most-recent incarnation, the DISCLOSE Act would force independent groups—whose speech does not raise any specter of corruption—to list their top five contributors in each advertisement. And it would require the head of those groups to appear on camera and say that their organization approved the message. If those provisions seem pointless because 1) Super PACs already disclose the identity of their contributors and 2) the group wouldn’t have put out the advertisement unless it agreed with its message, you’re right. The dirty secret of this DISCLOSE Act, like its predecessor, is that it’s not about information; it’s about chilling speech. As my colleague Paul Sherman previously noted, “For the reform lobby, the fact that some groups might stop speaking rather than comply with these new burdens is a feature, not a bug.”


    The chance that this newest speech-squelching legislation will become law is between slim and none, and slim just left town.  That’s a good thing; although Wertheimer complains that Super PACs let “a relatively few super-rich individuals and other wealthy interests to have greatly magnified and undue influence over the results of our elections,” that view betrays a fundamental misunderstanding of how elections actually work.


    The speech police see voters as empty vessels that candidates and groups can hoodwink and manipulate.  That condescending view of the American electorate, however, is just plain wrong.  Instead, the whole purpose of political campaigns is persuasion.  Candidates and groups can only present information and arguments to the public.  It is ultimately the voter who weighs that information and decides whom to cast a ballot for.  Super PACs help improve democracy by giving voters another source of information to consider.


    It’s odd to say that people can be made better off by limiting the voices they can hear from and consider, but that’s the argument that Wertheimer and his ilk make.  Fortunately for Americans, “[t]he First Amendment confirms the freedom to think for ourselves” and to hear from everyone, Super PACs included.

    In the world of public interest law, nothing is possible without clients who are willing to stand up for their rights against overwhelming odds. The Institute for Justice and the Center for Competitive Politics were privileged to have two such clients in Edward Crane and David Keating.


    Crane and Keating have a long history of fighting for free speech against burdensome campaign finance laws. Crane, the president of the Cato Institute, was one of the plaintiffs in Buckley v. Valeo, the seminal 1976 decision that struck down major portions of the Federal Election Campaign Act. And Keating, who has long had to navigate campaign finance laws as executive director of the Club for Growth, has recently been named president of the Center for Competitive Politics.


    freeing-speechnowBack in 2008, Crane, Keating and others teamed up to form, a group that wanted to raise and spend money to promote or oppose candidates based on their support for the First Amendment. Federal law prohibited them from doing so, so and its donors—represented by IJ and CCP—filed suit against the Federal Election Commission. The result was v. FEC, in which the D.C. Circuit Court of Appeals unanimously held that individuals and groups have a First Amendment right to pool unlimited amounts of money to spend on independent political speech. That ruling led directly to the creation of so-called “Super PACs.”


    Now, writing in The Wall Street Journal, Crane and Keating are stepping up to defend the results of that decision and the power it gives to grassroots groups to educate voters:


    [I]n Buckley [v. Valeo] the court ruled that individuals could spend unlimited amounts to support a federal candidate if those expenditures were not coordinated with the candidate's campaign. went further. It held that the First Amendment allows two, or four, or 400 or more individuals to pool their resources and exercise the same right to make independent expenditures that one individual could make under Buckley. Hence, Super PACs.


    Money is a proxy for information in campaigns. Yet Americans spend as much on potato chips as they do on all federal elections ($3.6 billion in 2010). Maybe that partly explains why most Americans cannot name their congressman, much less say where he or she stands on the issues.


    That's why we believe Super PACs are a good thing. In the recent Republican South Carolina primary, Super PACs reportedly outspent the candidates' campaigns by two to one. That means more information was available on the candidates and more interest in the campaigns has been generated. It could be argued that Super PACS are the reason the GOP primary campaign this year is a horse race and not a coronation.


    Subscribers to the Journal can read the whole thing here.

    The Seattle Post-Intelligencer’s Joel Connelly has a column bemoaning how political campaigns in America are conducted and laying the blame for what he sees as the poor state of things at the feet of the U.S. Supreme Court and the Citizens United decision. Almost everything he says in the article is wrong—even if one were to put aside his unsourced statement that one Super PAC has received $50 billion in contributions. (This would be quite the accomplishment as the total amount of political spending in all elections in 2012 at the federal, state, and local level is expected to be $5 billion.) Moreover, I do not recall him filing any stories about how well politics functioned when McCain-Feingold was robustly throttling political speech in the days prior to Citizens United.


    Coincidentally, Connelly’s piece came out the same day that Dan Abrams takes his fellow journalists to task for not understanding what Citizens United said and distorting its impact on elections. Abrams is no fan of the decision, but he does have an insight into the case that others do not: His father Floyd represented Mitch McConnell in the case. His insight leads him to take on those, like Connelly, that regurgitate what they hear others say about the case, regardless of whether it is accurate or not. His piece could have been written in response to Connelly’s column, but sadly, columns like Connelly’s have become the standard media analysis of the decision, not the exception.

    Roll Call columnist Eliza Newlin Carney, who coined the term "Super PAC," has written a column titled “Some Super PAC Money Untraceable.”  The column discusses the findings of a report titled “Auctioning Democracy,” released by Demos and the U.S. PIRG Education Fund.


    As Carney reports, “Since 2010, 6.4 percent of the itemized contributions underwriting super PACs could not be traced to their original source, the report found.”


    Wait a minute . . . this is the torrent of secret money we keep hearing about?


    It seems to us that the really newsworthy thing about the Demos/PIRG study is that, for all the “reform” lobby’s complaining about secret money in politics, a full 93.6% of itemized contributions to Super PACs can be traced back to their original source.

    Washington Post columnist E.J. Dionne has been complaining about Citizens United v. FEC since before Citizens United was decided. In his latest attack on that ruling, Dionne argues that the decision doesn’t work “if you think we are a democracy and not a plutocracy.”  As famed First Amendment lawyer Floyd Abrams notes in a response, much of Dionne’s critique is based on false factual premises.


    There is, however, another, more fundamental problem with Dionne’s critique. Like so many critics of Citizens United, Dionne largely ignores the intermediate step between political spending and electoral results:  voting.


    Citizens United freed corporations and unions to spend money on political speech.  A later ruling, v. FEC—litigated by the Institute for Justice and the Center for Competitive Politics—freed individuals and groups to form Super PACs to do the same thing.  But neither ruling freed anyone to buy votes.  The most corporations, unions, or Super PACs can do is attempt to persuade American voters.


    Dionne apparently believes that voters should be spared from hearing Super PACs’ speech.  But that sort of paternalism is precisely what the First Amendment forbids.  As the Court noted in Citizens United, “The First Amendment confirms the freedom to think for ourselves.”

    On Monday night, President Barack Obama announced that he is giving his blessing to Priorities USA, a Super PAC supporting his reelection.  Campaign manager Jim Messina, writing at the Obama campaign’s official blog in a post titled “We Will Not Play by Two Sets of Rules,” declares that the change in position is a necessary response to Republican-favoring Super PACs.  Thus, even though the president supports a constitutional amendment to allow for “reasonable limits” on campaign spending, winning reelection has to come first.


    If this sounds familiar that’s because four years ago the Obama campaign issued a nearly identical apologia for the then-Senator’s decision to renege on a promise to take part in the presidential public-financing system.  Then, as now, it was presented as a choice forced upon the campaign; he didn’t want to do it, but had to because the other side was “gaming” a “broken” system of regulations.


    Such excuses are commonplace.  Self-styled “reformers” claim they have to work within the system to change the system.  But these excuses expose the hollowness of the arguments for stricter limits on campaign finance.


    The theory behind campaign finance limits is that political spending causes corruption.  But there is no evidence to support this belief and good reason to believe that both political spending and corruption are driven by excessive government power.  Indeed, the response to the President’s change in position reveals that even the reform lobby doesn’t believe that political spending corrupts everybodyThe New York Times criticized the President’s decision as a betrayal of his stated principles, but made no suggestion that the President is personally more corrupt because of it.  Ditto Common Cause, which called the move merely “disappointing.”  Ditto Thomas Mann of the Brookings Institution, who described the move as “regrettable” but “inevitable.”


    It seems that many people believe that the President is guilty, at most, of hypocrisy.  Perhaps they believe that the only candidates who are actually corrupted by money in politics are those who don’t think it’s appropriate for the government to ban or otherwise restrict peaceful political speech and association.  But that is not a serious account of political corruption—it’s just cheerleading for one’s preferred side of the political debate.


    For our part, we don’t object to President Obama encouraging people to give to Super PACs supporting his reelection.  Nor do we believe that his decision to do so makes him any more or less corrupt.  What we do object to is the apparent belief by some that a political candidate can demonstrate integrity by promising to ban other people’s political expression once elected.

    Most of the popular arguments against the U.S. Supreme Court’s ruling in Citizens United v. FEC boil down to two sound bites: “Money isn’t speech” and “Corporations aren’t people.” Both of these statements are obviously true. But neither has anything to do with whether political spending—even spending by corporations—is protected by the First Amendment.


    IJ has made these points many times, but we’re not alone. Writing yesterday in the Huffington Post, law professor Geoffrey Stone explains why it doesn’t matter that money isn’t speech:


    Even though an object may not itself be speech, if the government regulates it because it is being used to enable free speech it necessarily raises a First Amendment issue. Thus, a law that prohibits political candidates to spend money to pay for the cost of printing leaflets, or that forbids individuals to contribute to their favorite political candidates to enable them to buy airtime to communicate their messages, directly implicates the First Amendment. Such laws raise First Amendment questions, not because money is speech, but because the purpose of the expenditure or contribution is to facilitate expression.


    Similarly, last month, law professor Kent Greenfield wrote an excellent takedown of the “corporations aren’t people” meme:


    Citizens United did not hold corporations to be persons, and the court has never said corporations deserve all the constitutional rights of humans. The Fifth Amendment’s right to be free from self-incrimination, for example, does not extend to corporations.


    In fact, saying corporations are not persons is as irrelevant to constitutional analysis as saying that Tom Brady does not putt well in handicapping the NFL playoffs. The Constitution protects the rights of various groups and institutions — whether Planned Parenthood, Bob Jones University or the AFL-CIO — though they are not “natural persons.”


    Neither of these professors appears to be a fan of the result in Citizens United. Nevertheless, they recognize—as any honest critic must—that the most popular arguments against that ruling are empty slogans. We hope that other critics of Citizens United will follow their lead.

    Slate’s U.S. Supreme Court commentator Dahlia Lithwick has written a paean to Stephen Colbert and his satirical Super PAC, Americans for a Better Tomorrow, Tomorrow.  As Lithwick sees it, the members of the Citizens United majority are getting their just deserts, as Colbert uses his Super PAC to attack a decision that contributed to the creation of Super PACs.


    But there’s a problem with Lithwick’s narrative:  Virtually everything Stephen Colbert is doing was legal before Citizens United.


    ColbertAlthough Colbert has often used the phrase “unlimited corporate money” in reference to his Super PAC, last Tuesday’s disclosures paint a very different picture.  Colbert’s PAC, which raised more than $825,000 through the end of the year, has raised almost no corporate money.  Indeed, the only two corporate donations he reported to the Federal Election Commission amount to $714, total.  In addition to barely raising any corporate money, Colbert’s Super PAC accepted only one contribution from an individual (of $9,600) in excess of the $5,000 limit that applies to regular PACs.


    In other words, more than 99% of the money Colbert has raised to mock Citizens United and Super PACs is money that has been legal under the campaign finance laws for decades.


    So what are the real lessons to be learned from Colbert’s surprisingly un-Super PAC?


    Perhaps the most obvious is that campaign finance laws are rarely a hindrance for people with television shows espousing political messages that are already popular.  Those people already have the ability to get their message out to a national audience.  Political upstarts or outsiders—the real beneficiaries of the rulings in Citizens United and v. FEC—don’t have that option.


    But another lesson—or perhaps more of a sad reminder—is that free speech will never want for critics.  There will always be those who use their free speech rights to advocate that others’ be restricted.  And it is surely their right to do so.  But such people aren’t—as Colbert and Lithwick seem to believe—cleverly using the tools of the Machine to attack the Machine.  They’re simply advocating censorship for speech they disagree with, and weakening the basis of their own rights in the process.


    Image source: MHimmelrich

    Last Tuesday, many so-called “Super PACs” for the first time disclosed their donors to the Federal Election Commission. But as proponents of campaign finance laws savor this newly released data—and whinge over how long it took for them to get it—here’s one thing you won’t hear them admit: We would have had this information weeks ago if our campaign finance laws were less strict.


    Surprised? Don’t be. It’s just the latest example of the unintended consequences of the reform lobby’s zeal for ever-greater regulation of political speech. To understand how it happened, it helps to know a bit about the history of Super PACs.


    Although the media commonly associates Super PACs with the U.S. Supreme Court's decision in Citizens United v. FEC, that decision is only indirectly related to the rise of Super PACs. Citizens United freed corporations and unions to spend on their own. But even after that decision, individuals and groups were still limited in their ability to pool money to spend on political speech.


    freeing-speechnowIt wasn’t until the D.C. Circuit Court of Appeals decided a case called v. FEC that individuals and groups were permitted to pool money in unlimited amounts to spend on political speech. As the D.C. Circuit recognized in that case, if a wealthy individual or a corporation acting alone is permitted to spend an unlimited amount on political speech, it makes no sense to limit the amount that individuals and other groups can pool together to spend on political speech.


    But the D.C. Circuit also did something else: It held that groups that pool money to spend on independent political speech may be required to speak through heavily regulated political committees (or PACs). Reformers cheered this portion of the ruling because PACs are the most heavily regulated groups under federal campaign finance law. The Campaign Legal Center—the pro-regulation group run by Stephen Colbert’s personal lawyer, Trevor Potter—called it “a victory for disclosure.”


    It turns out to have been a Pyrrhic victory.


    The reform lobby ignored the fact that PACs, while heavily regulated, disclose their donors on a preset schedule. The plaintiffs in the case had argued that they should be subject to the less stringent regulations that apply to groups other than PACs. Those groups, however, are required to disclose their donors within 48 hours of spending $10,000 or more on political ads (and within 24 hours if it’s less than 20 days before a primary or general election).


    In other words, we could have known all along who was giving to Super PACs if the reform lobby and the Federal Election Commission, driven by a mantra that “more regulation is always better,” hadn’t turned their noses up at the offer.


    None of this is to endorse the idea that contributions to Super PACs should necessarily be disclosed. The First Amendment protects the right to engage in anonymous speech, and people who get together to engage in independent political speech should, ideally, be allowed disclose as much or as little about their donors’ identities as they like. But it’s a great example of how the reform lobby’s tactics invariably focus, first, on making it difficult to put spend money on political speech, with all other considerations being secondary.


    In light of this, there are good reasons to be skeptical of their efforts to revive last year’s failed DISCLOSE Act, which would impose extensive new disclosure requirements on Super PACs and nonprofit organizations. For the reform lobby, the fact that some groups might stop speaking rather than comply with these new burdens is a feature, not a bug.

    Professor Jeffrey Rosen has written an attack on Citizens United v. FEC that attempts to transform the progressive complaints against the case into the main reason for the loss of “Americans’ confidence in their political system.” Rosen presents no evidence for this assertion, of course, perhaps because none exists. The Pew Charitable Trust’s recent poll of public priorities concluded—even after almost-hourly criticisms of Super PACs in the media and on the campaign trail and the focus on Citizens United allegedly resulting from the Occupy Wall Street protest—that campaign finance “remains on the back burner for most Americans” and is one of the lowest ranked issues across party lines. This has changed little from previous years. It is difficult to imagine how something that is “on the back burner for most Americans” has caused Americans to become so disillusioned.


    Nonetheless, Professor Rosen sees signs of a “backlash” and faults the U.S. Supreme Court for failing to foresee this inevitable result. Rosen’s evidence of this “backlash” is weak: He cites the Move to Amend effort to “Occupy the Supreme Court,” an effort most notable for its utter failure to cause people to notice that it was occurring. He also cites a single decision of the Montana Supreme Court rejecting Citizens United as proof of a “judicial backlash.” But the Montana decision is unique. No other court has so blatantly rejected on-point Supreme Court precedent and a check of Lexis-Nexis reveals that Citizens United has been routinely followed, cited, and relied upon by dozens of federal and state courts across the country.


    Professor Rosen attributes the Court’s failure to predict this “backlash” to the fact that none of the Justices were politicians before coming to the Court. Rosen implies that, had some of the Justices been in politics prior to becoming justices, they would have understood how Citizens United would be received and, presumably, voted to uphold the law at issue in the case. He celebrates Justices like Warren, Douglas and Black, among others, who had political experience before coming to the Court.


    Justice_William_O_DouglasProfessor Rosen may have forgotten that Citizens United was not the first time Congress’s ban on political expenditures by corporations and unions had come before the Court. The Court had previously considered the ban twice and sidestepped the constitutional issue both times. In 1958, in U.S. v. International Union United Automobile, Aircraft and Agricultural Implement Workers of America, three justices dissented. These three justices would have reached the constitutional issue and struck the law down. These three justices were Warren, Douglas and Black. In the dissent, Justice Douglas called the law “a broadside assault on the freedom of political expression guaranteed by the First Amendment.” He wrote:


    Some may think that one group or another should not express its views in an election because it is too powerful, because it advocates unpopular ideas, or because it has a record of lawless action. But these are not justifications for withholding First Amendment rights from any group—labor or corporate. First Amendment rights are part of the heritage of all persons and groups in this country. They are not to be dispensed or withheld merely because we or the Congress thinks the person or group is worthy or unworthy.


    Justice_Wiley_RutledgeSimilarly, when the Court considered the law in 1948, four Justices dissented in the case. These Justices would have also reached the constitutional question and struck the law down. Although Justice Rutledge, a former academic and judge, wrote the dissent, he was joined by Justices Black, Douglas and Murphy. In case one is unfamiliar with the career of Justice Murphy, who died when he was just 59, he was a former U.S. Attorney General, Governor of Michigan, Mayor of Detroit, and Governor-General of the Philippines. Justice Rutledge’s dissent noted:


    A statute which, in the claimed interest of free and honest elections, curtails the very freedoms that make possible exercise of the franchise by an informed and thinking electorate, and does this by indiscriminate blanketing of every expenditure made in connection with an election, serving as a prior restraint upon expression not in fact forbidden as well as upon what is, cannot be squared with the First Amendment.


    Perhaps these politicians understood something that Professor Rosen does not: that a constitutional command that “Congress shall make no law . . . abridging the freedom of speech” means that Congress cannot constitutionally make a law abridging freedom of speech, regardless of “the serious political implications [the Court] could create” in coming to that conclusion. Ultimately, that is the role of the courts in constitutional cases—to uphold constitutional principles even in the face of public opposition, real or, in this case, mostly imagined. Indeed, this is exactly when judicial adherence to principle is most needed. Otherwise, the First Amendment, and the rest of our Constitution, becomes nothing but words on paper. Justices Warren, Douglas and Black understood this well, as did the justices in the majority in Citizens United.

    Tomorrow is the second anniversary of the U.S. Supreme Court’s landmark ruling in Citizens United v. FEC.  To mark the occasion, the Institute for Justice has released public statements defending that ruling and defending the rise of so-called “Super PACs” as a means for people to pool their resources to speak out about political candidates:


    Citizens United, Two Years Later: Institute for Justice Continues to Defend Landmark Free Speech Ruling


    Institute for Justice Defends Super PACs


    Speaking of Super PACs, John Samples of the Cato Institute was kind enough to write a blog post reminding people of the role the Institute for Justice played in their creation. Check out his post—SpeechNow, the Decision that Made a Difference—at the Cato@Liberty blog.

    Rebecca Rosen of The Atlantic reports that Microsoft has joined with Nike and other for-profit corporations to advocate for gay marriage in Washington State:


    In a week of tech industry protests about censorship, one company—Microsoft—is lending its voice to a different political cause: gay marriage.


    It has joined with five other businesses (Vulcan, NIKE, RealNetworks, Group Health Cooperative, and Concur) to support bills that would legalize gay marriage in Washington state, where Microsoft is based. The letter to Governor Chris Gregoire was brief. In its entirety it reads, “We write you today to show the support of our respective companies for SB 6239 and HB 2516 recognizing marriage equality for same-sex couples.”


    Good for Microsoft—they saw an issue they cared about and they spoke out. But, as critics of the U.S. Supreme Court’s ruling in Citizens United v. FEC keep reminding us, corporations aren’t people. Bearing that in mind, here are some questions for people who believe that corporations should not have First Amendment rights:


    Do you think Microsoft should be prohibited from engaging in this sort of advocacy unless it first gets approval from its shareholders?


    Do you think this sort of political advocacy is a “threat to democracy”?


    Do you think the government should have the power to ban this sort of political advocacy simply because Microsoft is a corporation?


    As it turns out, slogans like “corporations aren't people” aren’t very helpful when dealing with First Amendment issues, particularly if you’re sympathetic to the message being espoused.  The solution, we think, is to take the text of the First Amendment at face value and conclude—as the Supreme Court did in Citizens United—that the First Amendment prohibits the government from banning political speech based on the speaker’s identity.

    Writing for The Atlantic, Wendy Kaminer has a must-read takedown of the efforts by Massachusetts Senator Scott Brown and his opponent, professor Elizabeth Warren, to keep third-party groups from speaking out against their candidacies.  Here’s a snippet:


    Warren apparently wants the press to help silence outside groups. According to the Boston Globe, she has “suggested notifying broadcasters in the hopes of getting their help and ‘ensuring that the agreement not only cover express advocacy ads, but all paid advertisements that seek to promote or attack either candidate or campaign.’”


    Shame on any media outlet that offers “help” for efforts to repress independent advocacy. Candidates naturally want to monopolize electoral speech; they want to “control the narrative.” They’re entitled to desire control, obviously, but they’re not entitled to exercise it, and they should surely know better than to ask media outlets to act as enforcers for their campaigns. The presumptuousness of the proposed Brown/Warren agreement is jaw-dropping.


    Check out the whole thing.  While you’re at it, check out her article from earlier this week on the failure of campaign finance reform.

    This Saturday, voters in South Carolina will cast their ballots to decide which candidate they want to represent their party in the 2012 presidential election. Saturday also marks the two-year anniversary of the U.S. Supreme Court’s ruling in Citizens United v. FEC. As anyone who has followed the presidential campaign knows, Citizens United and its effect on the election is a topic of hot debate. In particular, there has been a tremendous amount of news coverage regarding so-called “Super PACs,” which were made possible, in part, by that ruling.


    Because the Institute for Justice supported the Court’s ruling in Citizens United and, indeed, played a direct role in the rise of Super PACs, we thought our readers might appreciate a little background on what exactly Super PACs are, how they came about, and how the law has continued to develop. What follows is not a complete history, but it should provide a solid overview.


    At the stroke of midnight this morning, popular Internet sites went "dark" in order to protest two anti-piracy bills under consideration in Congress: the House's Stop Online Piracy Act (SOPA) and the Senate's Protect IP Act (PIPA).  Instead of finding informative entries on topics of interest, visitors to Wikipedia's English website will find an ominous shadow of the usual logo with the following message:


    Imagine a World Without Free Knowledge
    For over a decade, we have spent millions of hours building the largest encyclopedia in human history. Right now, the U.S. Congress is considering legislation that could fatally damage the free and open Internet. For 24 hours, to raise awareness, we are blacking out Wikipedia. Learn more.


    On Google's home page, a black bar covers its iconic banner and links to an online petition opposing the bills. Under the search box, the site reads: "Tell Congress: Please don't censor the Web." Reddit, the popular social news website, replaced its usual content with a page describing its opposition to the bills, containing information on how to contact members of Congress, and a live update of latest news regarding the blackout. Mozilla is also participating in the "virtual strike" to protest the legislation, as are Craigslist and other websites.


    The political message of the blackout is unmistakable:  the proposed legislation would give the government unprecedented power to censor the Internet.


    Whether the anti-piracy bills would result in censorship of the Internet is an important question worthy of debate. But what is beyond question is that corporations – like Google, Craigslist, the Wikimedia Foundation, Mozilla, and others -- have a right to free speech protected by the First Amendment.


    That is what makes it so surprising that Occupy Wall Street and its offshoots have joined today's protest against SOPA and PIPA.  For months, the Occupy Movement has been telling us that corporations, like the ones involved in today's "virtual strike" have no free-speech rights.  Now they oppose SOPA and PIPA on the grounds that these laws would censor content on the Internet.  But if corporations have no right to free speech, what prevents the government from shutting down websites of corporations right now, even without authority under SOPA or PIPA? Would members of the Occupy Movement really be in favor of a world in which the government could censor anything a corporation said?  Eugene Volokh asks a related question in his post.


    Imagine a world without free-speech rights for corporations.  One thing is for sure:  it would look much worse than today’s blackout.

    Yesterday the U.S. Supreme Court summarily affirmed a lower-court decision upholding a federal law that prohibits noncitizens who lawfully reside in the United States—except for “permanent residents,” i.e., “green card” holders—from spending money to influence U.S. elections.  IJ had submitted a friend-of-the-court brief urging the Supreme Court to hear the case, Bluman v. FEC.


    The result is disappointing, not only because the Supreme Court sanctioned the censorship of noncitizens who lawfully live in the United States, but because the Court did not stick to the principled stance it announced in Citizens United v. FEC.  Indeed, the Montana Supreme Court recently pointed to the lower-court ruling in Bluman—affirmed by the Supreme Court today—as a reason to defy Citizens United.


    What is perhaps most disappointing is that the Court’s summary affirmance could be read erroneously to sanction not just the lower court’s result, but also the slipshod approach the court took to getting there.  The lower court disposed of the case on a motion to dismiss, which meant that the government was not required to provide any evidence to support its argument that the government had a compelling interest in banning speech by noncitizens, including even such patently harmless speech as leafleting in Central Park.  This is, to our knowledge, the first time in the Supreme Court’s history that it has upheld a campaign-finance law that came before it with no factual development on a motion to dismiss.


    In all likelihood, the decision is Bluman is an anomaly that will not have a major effect on the rest of the Court’s campaign-finance jurisprudence—it will be treated as a sui generis rule that applies only to noncitizens.  As opponents of campaign-finance regulations, we take comfort in that.  But as believers in the idea that the First Amendment protects a preexisting natural right to engage in peaceful political speech and association—a right on which citizens and permanent residents hold no monopoly—we can’t help but be disappointed in the Court’s ruling.


    Despite the case’s unfortunate conclusion, we give kudos to Michael Carvin, Yaakov Roth, and Warren Postman of Jones Day for their exemplary work on the case.  And, of course, kudos to plaintiffs Benjamin Bluman and Dr. Asenath Steiman for being willing to stand up for their rights.
    10:26 PM

    At the Institute for Justice, we want the message of liberty to reach the widest-possible audience. So when we were approached by a website that translates American legal writing into Slovenian and asked if they could reprint one of our Make No Law blog posts about media censorship, well, how could we refuse?


    For anyone who is interested, the translation is available here. And if any of our readers are Slovenian, let us know how jokes about Lake Wobegon play in Ljubljana.

    Writing for the Project on Government Oversight (POGO), Ben Freeman argues that my recent op-ed in The Wall Street Journal regarding Bluman v. FEC is “deceptively titled” and uses a “bait-and-switch tactic” to con people into believing the Congress shouldn’t have the power to ban political contributions and expenditures by noncitizens who lawfully reside in the United States.


    censoredMy op-ed was titled “Do Foreigners Deserve Free-Speech Rights?” As Freeman sees it, the real question is “Do American Citizens Deserve Sovereignty?” The Institute for Justice believes that the answer to both questions is “yes.” Where we disagree with Freeman is on whether acts of peaceful political expression and association by noncitizens are a threat to American sovereignty.


    The way we see it—and the way the U.S. Supreme Court saw it in Citizens United v. FEC—the First Amendment ensures a wide-open political marketplace where voters can listen to diverse points of view from diverse speakers. We believe this includes speakers who were not born in the United States but who live here now. In this system, sovereignty remains with American citizens because American citizens are the ones who get a vote.


    The real threat to American sovereignty is not that someone born outside the United States might present an argument that voters find compelling, but rather that government will use its coercive power to prevent voters from gathering information from certain distrusted sources before making their political choices. This is what the Supreme Court in Citizens United rightfully derided as censorship for the purpose of thought control.


    Freeman doesn’t engage at all with the Supreme Court’s ruling in Citizens United and, indeed, thinks this whole First Amendment argument is a bait and switch. To Freeman, this case has nothing to do with speech, and is instead just about preventing foreigners from using money to influence American politics:


    The simple fact is that the prohibition on foreign national contributions does not actually restrict speech at all. It in no way restricts non-U.S. citizens from engaging in issue advocacy or speaking out on public policies— it simply does not allow them to do so with money.


    With all due respect to Freeman, the Supreme Court has long rejected the view that the First Amendment protects only the uncompensated spoken word. For over 35 years, the Supreme Court has held that the First Amendment is implicated whenever individuals are prevented from pooling money to engage in political speech. And it could hardly be otherwise. Freeman’s approach would give the government virtually unlimited power to silence speech, because virtually every type of communication requires the use of resources amassed in the commercial marketplace.


    Freeman suggests that the First Amendment issue isn’t as cut-and-dry as all that by pointing to another line of cases:


    In prior cases, the Court found that foreign citizens may be barred from activities “intimately related to the process of democratic self-government,” and aren’t eligible to perform functions inherent to democratic government, like serving as jurors or police officers, because “the right to govern is reserved to citizens.”


    This was the argument made by the government in Bluman and accepted by the three-judge panel below. But the argument fails, most notably, because not a single one of those earlier cases involved a claim under the First Amendment. Instead, all of those cases involved equal-protection claims by noncitizens seeking to hold positions of actual government authority. But there is a world of difference between giving noncitizens control of the coercive power of government and permitting noncitizens to attempt to persuade others through political advocacy. The former may be a threat to sovereignty, but the latter surely isn’t.


    It is also irrelevant for First Amendment purposes that other countries—like Canada and Israel, the plaintiffs’ home countries—don’t permit noncitizens to make political contributions or expenditures. Canada and Israel don’t have constitutional protections for speech that are at all comparable to America’s First Amendment. For Americans, this is generally a point of pride. But as long as we’re looking at other western-style democracies, let’s also look at Australia, which has virtually no campaign finance laws and permits unlimited campaign contributions not just from non-permanent resident aliens, but from aliens, corporations, and even governments outside of Australia. We are aware of no evidence that Australia’s hands-off approach to campaign financing has done that country any harm. Indeed, according to Transparency International, Australia is perceived as substantially less corrupt than the United States.


    Freeman’s failure to provide any actual evidence to justify the ban on political contributions and expenditures by noncitizens is consistent with the approach taken by the three-judge panel and by other commentators who have supported the panel’s ruling. But it is not consistent with the First Amendment. The Supreme Court has repeatedly made clear that speculation and conjecture are not a sufficient basis to restrict speech. Government must justify such restrictions with actual evidence, not simply make ominous allusions to Nazi Germany or Mahmoud Ahmadinejad.


    Ultimately, though, even if every claim Freeman made in response to my op-ed were accurate, the Supreme Court should still take this case. As documented in the amicus brief in support of review by the Illinois Coalition for Immigrant and Refugee Rights, there are millions of non-permanent resident aliens who reside in the United States. Until now, no court has ever held that these lawful residents were entitled to anything less than the full protection of the First Amendment. If these people are to be stripped of their First Amendment right to engage in peaceful political advocacy because of vague and unsupported concerns about “sovereignty,” that decision should come only after serious consideration by the highest court in the land.


    The Supreme Court’s next opportunity to take up the case will occur on January 9.

    My colleague Paul Sherman has an op-ed in The Wall Street Journal today making the case for why the U.S. Supreme Court should take up Bluman v. FEC, a First Amendment challenge to a federal law that prohibits noncitizens, even those who lawfully live and work in the United States, from spending any money in candidate elections.  The law is so broad that it even prohibits printing up and distributing flyers advocating the election of a candidate.  Here’s an excerpt from the op-ed:


    As Justice Anthony Kennedy eloquently expressed it in his majority opinion in Citizens United: “When Government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves.”


    The Justices who signed on to Justice Kennedy’s opinion should apply that same reasoning to Bluman. Those who instead agree with retired Justice John Paul Stevens’ dissent—which decried the application of the First Amendment to entities that have “no consciences, no beliefs, no feelings, no thoughts, no desires”—should recognize that noncitizens living in this country do have those qualities and are entitled to the First Amendment’s protection.


    Over the past five years, the Supreme Court has been sharply divided on many campaign-finance questions. Whether Congress has the power to ban peaceful political speech by people who lawfully live and work in the United States should not be one of them.


    Wall Street Journal subscribers can read the whole thing here.


    For more information on Bluman v. FEC, read our earlier coverage here and here.

    Readers of Make No Law may recall that the Institute for Justice recently filed a brief in Bluman v. FEC, urging the U.S. Supreme Court to hear that case, a challenge to the federal prohibition on political spending by noncitizens. Now election-law scholar Rick Hasen has posted a commentary at The New Republic, provocatively titled “Will Foreigners Decide the 2012 Election? The Extreme Unintended Consequences of Citizens United.” In it, Hasen argues that the U.S. Supreme Court should reject this challenge or uphold the law. But Hasen’s argument is thin on both the facts and the law, and ultimately fails to make a compelling case for the Supreme Court to break new ground by holding, for the first time ever, that government may censor the speech of noncitizens lawfully residing within the United States.



    As a threshold matter, Hasen’s argument is notably silent on the actual facts of the case, probably because they aren’t nearly as salacious as his portrait of Mahmoud Ahmadinejad spending money in American elections. The plaintiffs are a Canadian lawyer and a Canadian-Israeli doctor, both of whom lawfully live and work in the United States. They want to make modest, limited contributions to political candidates and parties and to make modest expenditures on their own political speech (one actually wants to distribute fliers in Central Park urging the reelection of President Obama, which is currently illegal). Hasen makes no attempt to justify the law as it applies to these entirely harmless activities by people who live, work, and pay taxes in the United States.


    In addition to omitting any facts about the plaintiffs, Hasen’s argument also ignores the fact that foreigners routinely speak out in American politics, to no ill effect. Foreigners, and even foreign governments, are permitted to spend unlimited amounts lobbying Congress. Foreign publications like The Economist routinely endorse American presidential candidates, and the UK paper The Guardian actually urged British citizens to send money to groups whose political efforts would indirectly benefit Democratic presidential candidate John Kerry. Foreigners are also permitted to make unlimited donations of volunteer services, no matter how valuable, as when Elton John volunteered as a performer at an event that raised $2.5 million for then-Senator Hillary Clinton’s presidential campaign. Hasen makes no attempt to square his predictions of “distressing” consequences if foreigners living within the United States are allowed to make political contributions or expenditures with the fact that none of those consequences have followed from the significant amounts of foreign speech that are already permitted.


    Hasen’s silence on these points is not surprising, because there is not a single legal precedent—not one—that has ever held that foreigners lawfully living within the United States do not enjoy the full protection of the First Amendment. The only case Hasen cites to support his position is the Supreme Court’s ruling in Caperton v. A.T. Massey Coal Co., in which the Supreme Court, per Justice Kennedy, held that an elected judge was required to recuse himself from hearing a case in which one of the litigants had made large independent expenditures to support his election. That case had nothing to do with foreign speakers, but Hasen claims that it runs directly contrary to the teaching of Citizens United that government is prohibited from limiting independent political speech.


    The problem with Hasen’s legal argument is that Caperton did not involve any limitation on political speech. There was never any question as to whether government could limit independent spending in support of electing a judge; the only question was whether the judge could then hear a case involving that spender. Moreover, the claim that this narrow due-process decision has anything to do with elections outside the judicial context ignores the fact that judges and legislators play entirely different roles in our system of government. Judges are elected to serve as neutral magistrates, not as representatives of the people, and due process requires that they be impartial. Legislators, by contrast are expected to be partial. Simply put, there is no contradiction between the two decisions, which is hardly surprising as Justice Kennedy wrote both of them less than a year apart.


    Fundamentally, however, our disagreement with Hasen isn’t about the law. Indeed, the legal precedent is so overwhelmingly in favor of permitting the Bluman plaintiffs to speak that the Supreme Court would have to break entirely new ground to find cause to restrict them. At its core, our disagreement with Hasen is about competing visions of voters and government. Hasen is apparently deeply concerned that voters, if exposed to too much of the wrong type of political speech, will make foolish choices at the polls, and believes that government should be permitted to censor speech to prevent that. We believe that this risk was contemplated by the Framers of the First Amendment, who wisely recognized that no government could be trusted with the power to decide which speakers or what speech a voter could consider before casting his ballot.


    No matter what the Supreme Court decides in Bluman v. FEC, the answer to Prof. Hasen’s question—will foreigners decide the 2012 election?—is “no.” American voters will decide the 2012 election, just as they decide every election. The real question is: Will the federal government be permitted to continue prohibiting American voters from considering foreigners’ speech before casting their ballots?

    On her blog, University of Wisconsin Law School professor Ann Althouse (in whose class I happily sat as a law student), pens a sharp critique of Justice John Paul Stevens and his dissent (and subsequent celebration of that dissent in his new book, Five Chiefs) in the Citizens United case. From critiquing Stevens on his focus on the identity of the speaker in First Amendment cases to dismantling his belief that the government may constitutionally limit speech in order to ensure that people don’t get the wrong ideas about things, Professor Althouse succinctly and powerfully refutes Stevens’ dissent and the position of many who think Citizens United was wrongly decided. It’s an important analysis that deserves the widest possible dissemination. Check it out.

    Professor Brad Smith, chairman of the Center for Competitive Politics, has an excellent, short op-ed in USA Today discussing calls for stricter lobbying regulations.  As Smith notes, lobbyists like Jack Abramoff are only a symptom of a more fundamental problem, one that can’t be addressed through laws that burden the First Amendment right to lobby the government:


    The problem is power, and the government has too much of it. When the government spends $3.6 trillion dollars annually, including substantial amounts trying to pick "winners" in green industries or bailing out companies and even whole industries; when it operates a tax code designed to "nudge" people to preferred activities and purchases; when it claims the right to regulate every aspect of your life—then you are going to have lobbyists seeking to influence what that government does. Until the power is gone, the lobbyists, and the favoritism that creates them, will remain.


    Read the whole thing.

    arizonaIn an emergency ruling issued yesterday, U.S. District Court Judge James A. Teilborg granted a motion by the Institute for Justice to stop the Town of Fountain Hills, Ariz., from enforcing burdensome campaign finance laws against a woman who just wanted to hold grassroots protests about her town’s issuing new bonds.


    In early October, political activist and Fountain Hills resident Dina Galassini emailed friends urging them to join her in two grassroots protests opposing her town’s issuance of nearly $30 million in new bonds, and encouraging them to bring homemade signs with messages like “Keep Property Taxes Low” and “Vote NO on the Bond.” Almost immediately she received a letter from the town clerk telling her to stop speaking until she had registered with the town as a “political committee” under Arizona’s campaign finance laws.


    “I felt strongly from the beginning that the position Fountain Hills had put me in was wrong,” Dina said.  “I am overjoyed the Court has protected my right to gather together with my friends and neighbors to speak our minds without having to register with the government.”


    With the help of the Institute for Justice (IJ), Dina filed a lawsuit in U.S. District Court for the District of Arizona, asking for an emergency order that would prevent the town from punishing Dina under the campaign finance laws if she goes forward with her protests.  Judge Teilborg entered that order, finding that there were “serious questions as to the constitutionality of the statutes at issue” and that those statues threatened Dina’s First Amendment rights.


    “Yesterday’s decision was very important because it protects Dina’s right to speak and to associate with others at the time it matters most:  during the heat of an election,” said IJ-Arizona Staff Attorney Paul Avelar.  “Campaign finance laws are difficult to understand and create traps for the unwary.  The judge understood that and enjoined the law.”


    The emergency order extended yesterday is just the first step in this case.  IJ will now move on to litigating the full merits and demonstrate again how these laws inhibit the ability of ordinary Americans to speak and participate in the political process.  The goal of the case is to free all Arizonans to speak about politics without the threat of prosecution.


    “In America, the only thing you should need to speak is an opinion.  Unfortunately, under campaign finance laws, you also need an attorney,” said IJ Senior Attorney and lead counsel in the case Steve Simpson.   “The Supreme Court recognized in Citizens United that complicated laws can suppress speech even by well-funded groups.  We are gratified that the judge in this case recognized the same thing is true for grassroots speech by ordinary Americans.”


    The case, Galassini v. Town of Fountain Hills, is the latest in IJ’s Citizen Speech Campaign, a national effort to restore full protection to political speech. 


    The full text of the ruling is available below the fold.


    Peter Nelson, director of public policy at the Center for the American Experiment in Minneapolis, had a great oped on the costs of disclosure in the Minneapolis Star Tribune last week.  Be sure to check it out.  Here’s a taste:


    In my election law seminar in law school, I recall an interesting discussion on the impact of disclosure on professors. Whether the threat to their job is real or perceived, politically conservative professors tend to hide their beliefs until they get tenure. Disclosure, of course, compromises their right to keep their politics private. The Supreme Court has protected groups like the NAACP when there was a reasonable probability of threats and harassment.


    The burden of disclosure on First Amendment rights is even greater when tied to a single, controversial issue on a ballot. It's one thing to be linked to the beliefs of a candidate or a party when no one expects agreement down the line; it's quite another thing to be tied to a single issue where there is no question about your position.


    For what it’s worth, I was in that election law seminar with Peter, and it was a very interesting discussion.  There seemed to be a feeling, even among some more liberal participants, that in an age when you can know someone’s political contributions through a Google search, disclosure truly can chill a person’s speech.

    On Monday the Institute for Justice filed a friend-of-the-court brief urging the U.S. Supreme Court to grant review in Bluman v. FEC. As Make No Law readers may recall, Bluman is a First Amendment challenge to a federal law that prohibits noncitizens—except for those classified as “permanent residents”—from making political contributions or spending any money to support or oppose political candidates. Despite the fact that the Supreme Court in Citizens United v. FEC held that speech restrictions based on the identity of the speaker are unconstitutional, in August a three-judge panel upheld the law as a permissible means of preventing “foreign influence” on American politics. Last month, the attorneys for the plaintiffs asked the Supreme Court to review the case.


    bluman_groupBluman is a fascinating and important case that absolutely merits review by the Supreme Court. As we argue in our brief, the law at issue is unconstitutional as applied to aliens like the plaintiffs, a Canadian lawyer and a Canadian-Israeli doctor, both of whom lawfully reside in the United States.  Simply put, individuals who are lawfully within the United States should enjoy the full protection of the First Amendment.  This means that, like Americans and permanent residents, they presumptively enjoy the right to spend money on political speech and even make political contributions.


    Under well-established First Amendment principles, the government can only overcome this presumption if it can prove that its restriction on speech by non-permanent-resident aliens satisfies “strict scrutiny,” the highest level of judicial review.  Strict scrutiny requires the government to come forward with genuine evidence that the speech it seeks to restrict is harming some interest the government is charged with protecting and that it is restricting no more speech than necessary to address that harm.  The government didn’t do that in this case, therefore the law is unconstitutional.


    As we argue in our brief, there is no reason to depart from these well-established First Amendment principles simply because the speakers in this case were not born in the United States. To understand why, it helps to first recognize that we already live in a world where “foreign influence” on American politics happens all the time, and we are none the worse for it. For example:


    -Under the Foreign Agents Registration Act, foreigners—and even foreign governments—are permitted to spend unlimited amounts of money directly lobbying elected officials, and have been for decades;


    -Foreigners, even those living abroad, are permitted to make unlimited “in-kind” contributions of volunteer services to political candidates, even if the value of those services is significantly greater than the legal limit for monetary contributions, as when Elton John volunteered as a performer at an event that raised $2.5 million for then-Senator Hillary Clinton’s presidential campaign; and


    -Foreign-owned magazines and newspapers—like the British-owned weekly magazine, The Economist, which has a U.S. circulation of over 760,000—routinely advocate the defeat or election of American political candidates through editorial endorsements.


    These types of “foreign influence” on American politics have been tolerated for decades, and for good reason: It’s all just political speech and association. Democracy isn’t imperiled by too much political speech. To the contrary, political markets, like economic markets, function better when decision-makers (in this case, voters) are permitted to acquire information from diverse sources.


    More fundamentally, the First Amendment doesn’t protect speech merely because it may advance “democracy” or be useful to voters during elections.  It protects speech because freedom is good, and because the right to speak freely and associate with others for peaceful political purposes is an inherent natural right that belongs to all people.  Not every country recognizes that right—and even fewer protect it robustly—but the United States does.  That’s why the government can only restrict speech if it can prove that speech is harmful.  And that's why the Supreme Court should grant review in Bluman and reaffirm that there is no exception to this foundational principle for campaign finance laws.


    The full text of IJ’s amicus brief in Bluman v. FEC is available below the fold.


    Congratulations to our friends at the Center for Competitive Politics, who yesterday won a victory for free speech in Patriotic Veterans, Inc. v. Indiana. The case concerned an Indiana law that prohibited pre-recorded political phone calls unless the recorded message was introduced by a live operator. The effect of the law was to favor well-funded, well-established interests that could afford live operators over newer groups that could not.


    The court did not reach the First Amendment issue, instead holding that the state law was “preempted” by the Federal Telephone Consumer Protection Act. But as CCP Chairman Brad Smith notes, “the end result is the same: [yesterday’s] ruling advances the First Amendment and provides for more competitive elections in the state.”


    The full text of the opinion is available here.

    wisconsinMake No Law readers may remember the Institute for Justice’s victory in Sampson v. Buescher, where the Tenth Circuit Court of Appeals ruled that grassroots groups have the right to speak about ballot issues without registering with the government and disclosing their activity.  Now the positive effects of that ruling are being felt in other states.  Last Wednesday, in the case of  Hatchett v. Barland, No. 2:10-cv-00265 (E.D. Wis. Sept. 14, 2011), a federal trial court in Wisconsin followed the Sampson ruling to conclude that it violates the First Amendment to force a citizen to tell the government that he sent a few political postcards to his neighbors.


    “Mailing post cards?” you ask.  “That doesn’t sound like those ‘fat cats’ we keep hearing about.”  Indeed, this case is just the latest example of how the burdens of disclosure laws fall hardest on ordinary citizens who don’t have lawyers to alert them to the pitfalls of campaign finance laws.


    Here’s what happened.  In 2006, only a few days before a Spring election, Charles Hatchett discovered that a referendum concerning liquor sales was on the ballot in his town.  Afraid the referendum would pass because of lack of publicity he sent out 524 postcards advocating that people vote against it.  It worked—the referendum was defeated.


    Unfortunately for Mr. Hatchett, he did not know that under Wisconsin campaign finance law he should have placed a disclaimer on the postcards and reported his spending if it was over $25.  His total came to about $300.


    Once the postcards became public, police officers questioned him and his son about whether he had sent them out.  Imagine that—police interrogating an American citizen because he had had the audacity to exercise his freedom of speech.


    Thankfully, Mr. Hatchett fought back and won.  The Wisconsin court, citing Sampson v. Buescher, ruled that applying a disclosure law to ordinary citizen speech such as Mr. Hatchett’s violates the First Amendment.  This should not be a surprise: No American should have to register with the government for the “privilege” of sending postcards to his neighbors.  What’s surprising is that the law ever existed in the first place.

    In a story that demonstrates almost everything that is wrong with the breadth and complexity of campaign finance laws in this country, the Washington Public Disclosure Commission has weighed in on an issue that threatens our very democracy to its core: whether the purchase of used campaign signs for $10 each in a race for the Edmonds, WA, city council was a campaign contribution or not. While reformers constantly talk about “plutocrats,” “big-money special interests,” and “sugar daddies,” in reality the burden of campaign finance laws fall heavily on new comers, small campaigns and grassroots organizations, who do not have the lawyers, accountants, and funding necessary to comply with the government’s increasingly incomprehensible but exacting regulations on political speech. Byzantium at its most decrepit could not have conceived of a law as petty and intrusive as this.


    The end result, of course, is that these laws drive amateurs and regular citizens from politics and leave the playing field to professionals and large, well-funded interests. In other words, politics becomes the sole preserve of the very “plutocrats” campaign finance reformers claim to abhor. Nonetheless, we can expect reformers to continue to assail “big money” interests while they promote laws that drive “small money” actors from politics altogether.        

    As campaign season heats up, we are seeing the inevitable uptick in news stories about campaign finance. The hottest topic this election seems to be the increasing number of “Super PACs” that are forming to support or oppose federal candidates.


    super_pacman“Super PAC” is the term that the media has adopted to describe what the Federal Election Commission calls “independent-expenditure-only committees.” As the FEC’s label suggests, these are groups that raise money for the sole purpose of making “independent expenditures,” which is FEC-speak for ads that support or oppose candidates but are not coordinated or prearranged with those candidates in any way. As of this posting, there are more than 100 active Super PACs registered with the FEC.


    Super PACs are a natural outgrowth of the U.S. Supreme Court’s campaign finance decisions. The Supreme Court has held for over 35 years that individuals are allowed to spend unlimited amounts of their own money on political speech, and last year recognized in Citizens United v. FEC that this right also extended to corporations and unions. Shortly thereafter, the Institute for Justice and the Center for Competitive Politics won v. FEC, which held that individuals could pool their money to make independent expenditures. Together, Citizens United and mean that groups of people—both individuals and associations—have a constitutional right to pool their money to make recommendations directly to the public about who they should vote for.


    Unfortunately, given the complexity of campaign finance law, reporters often make mistakes when describing what Super PACs are and what they can do. Here’s a perfect example, from U.S. News & World Report:


    [S]uper PACs can . . . pay unlimited amounts for “independent expenditures,” and collect unlimited cash from corporations, nonprofit groups, and labor unions, which would not otherwise be allowed, under the law, to make direct contributions to a campaign.


    This description is accurate up until the end, when it says that Super PACs can use “unlimited” corporate and union money to make “direct contributions to a campaign.” In fact, Super PACs can’t make any contributions to campaigns of any money, regardless of the source of that money. That’s why the FEC calls them “independent-expenditure-only committees”—they’re only allowed to make independent expenditures.


    “Super PAC” is a convenient shorthand; “independent-expenditure-only committee” is a mouthful. But that shorthand can be misleading. Super PACs are not permitted to do anything that the individuals and groups that give money to them would not be permitted to do if acting alone. Individuals can’t give unlimited amounts of money to candidates, and Super PACs can’t accept unlimited amounts of money to give to candidates. Corporations and unions can’t give money to candidates, and neither can Super PACs.


    Super PACs are a super-great thing for free speech and political debate, but they don’t have super powers. They’re just groups that freely raise and spend money on independent political speech—nothing more, nothing less.

    Friend of IJ Brad Smith, chairman of the Center for Competitive Politics, has written a thoughtful blog post regarding the strange case of W. Spann, LLC, a corporation that formed earlier this year, gave $1 million to a pro-Romney Super PAC, and then promptly dissolved.  The “reform” lobby is in near hysterics over the fact that no one currently knows where the money came from.  But Smith takes a hard look at whether we should really be concerned about this latest “scandal”:


    [T]the donor probably hasn’t done Restore Our Future, let alone good old Mitt Romney, any favors. Restore Our Future appears to have complied with the law, reporting its donors. Romney—well, he has nothing to do with it. The entire concept of a “SuperPAC” such as Restore Our Future is that the candidate has no role in the organization. But you can bet your a-- that Romney is going to take a political hit for this—indeed, he already is. This suggests once again the wisdom of the Supreme Court’s longstanding view that independent expenditures should not be seen as creating a quid pro quo type obligation between spenders and candidates, and indeed that candidates will often be hurt by the actions of independent speakers. Similarly, if the donation by the “shadowy” W. Spann, LLC hurts Romney, as it appears it will, that seems to suggest that the system may be self-policing—take “murky” contributions, and it is likely to hurt your cause. It hardly screams out for a new law.


    Be sure to read the whole thing.

    Dave Weigel of Slate reports on a newly introduced bill by freshman Rep. Rob Woodall (R-Ga.) called the Competitive Elections Act of 2011.  The bill would prohibit candidates from saving contributions they receive in one election for use in a future election.  The goal of the law is help new candidates compete against incumbents by removing the ability of incumbents to amass “war chests.”


    Weigel predicts that the legislation is doomed and we think he’s right about that—incumbent politicians generally aren’t interested in passing laws that eliminate the advantages of incumbency. But the law is also clearly unconstitutional.  First, it imposes a limit on political spending purely for the purpose of leveling the electoral playing field, which the U.S. Supreme Court has repeatedly said is forbidden.  Second, the law has an exemption for candidates who are facing self-funded opponents, just like the Millionaire’s Amendment provision of McCain-Feingold, which the Court held unconstitutional in Davis v. FEC.


    But the Competitive Elections Act of 2011 isn’t just politically infeasible and unconstitutional:  It is yet another example of how every campaign finance regulation eventually becomes a justification for more regulation.  The problem the law attempts to solve—the inability of challengers to unseat entrenched incumbents—is itself a symptom of our country’s dysfunctional campaign finance laws.  Upstart candidates rarely have a broad base of electoral support.  By capping the size of contributions they may receive, federal campaign finance law all but ensures that they will not be able to raise the money necessary to effectively compete against incumbent politicians.


    The straightforward solution to that problem—and the solution that is consistent with the First Amendment—is to remove the caps, not to add another unnecessary, unworkable, and unconstitutional layer of regulation.

    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.



    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

    minnesotaMonday’s Supreme Court decision on Arizona’s “Clean Elections” law reaffirms that the government may not burden a person’s speech by forcing them to choose between remaining silent or creating an advantage for their political opponent.  Minnesota’s current public financing law appears to run afoul of the new ruling.


    Minnesota caps candidate’s spending when she chooses to receive public money.  But if she runs against an opponent who does not receive public money and who spends more than a government-approved amount on his political speech, then Minnesota lifts the publicly financed candidate’s spending limits, and allows her to still receive the public money.


    For example, in last year’s gubernatorial contest, Tom Emmer received public financing and agreed to spending limits.  But because his opponent, Mark Dayton, refused public dollars to fund his campaign, Emmer’s limits were lifted and he got to keep all the public money lavished on his campaign.  Minnesota punishes traditionally funded candidates like Dayton for daring to exercise their right to freely engage in political speech.  It does so when it triggers great financial benefits to government-funded candidates when they face candidates who opt only to receive voluntary, private contributions. Minnesota punished Dayton for speaking by allowing his political opponent to double dip on contributions—getting state money AND private contributions—as a direct consequence of his decision to speak.


    Originally, Minnesota’s system, just like Arizona’s, included matching funds and burdens on independent groups, but those were declared unconstitutional in 1994. Minnesota’s system of allowing government-funded candidates to double dip into the political contribution well when their traditionally financed opponents choose to speak more than a government-prescribed amount is a practice that is bound to chill speech and remains constitutionally questionable..

    The U.S. Supreme Court this morning handed down a 5-4 ruling in the consolidated cases Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett and McComish v. Bennett, striking down Arizona’s speech-squelching “Clean Elections” law.  The majority opinion, written by Chief Justice Roberts, concluded:


    Arizona’s program gives money to a candidate in direct response to the campaign speech of an opposing candidate or an independent group. It does this when the opposing candidate has chosen not to accept public financing, and has engaged in political speech above a level set by the State. The professed purpose of the state law is to cause a sufficient number of candidates to sign up for public financing, which subjects them to the various restrictions on speech that go along with that program. This goes too far; Arizona’s matching funds provision substantially burdens the speech of privately financed candidates and independent expenditure groups without serving a compelling state interest.


    The Court also strongly rejected the idea that laws like Arizona’s could permissibly be used to “level the electoral playing field”:


    “Leveling the playing field” can sound like a good thing.  But in a democracy, campaigning for office is not a game.  It is a critically important form of speech.  The First Amendment embodies our choice as a Nation that, when it comes to such speech, the guiding principle is freedom—the “unfettered interchange of ideas”—not whatever the State may view as fair.


    The full opinion is available here.


    Here's a brief, three-minute video explaining how Arizona’s so-called “Clean Elections” law burdened free speech:




    This is IJ’s fifth case before the Supreme Court and our fourth victory.  IJ’s only loss before the Court came in Kelo v. City of New London, the infamous 2005 ruling that sparked a nationwide backlash resulting in 43 states enacting legislation to curtail eminent domain abuse.


    The Institute for Justice is joined in this victory by the Goldwater Institute, which represented plaintiffs in the consolidated case McComish v. Bennett. Goldwater’s statements on today’s victory is available here.


    We will continue updating this post throughout the day with links to early coverage of the Court’s ruling.




    Additional coverage of Monday's decision:


    ABA Journal

    ABC News

    Arizona Daily Star

    Associated Press

    Balkinization (Heather K. Gerken)

    Ballot Access News


    Brennan Center for Justice

    Campaign Finance Institute

    Cato @ Liberty

    Center for Competitive Politics


    Common Cause & Public Campaign

    Connecticut Mirror

    Democracy 21


    Heritage Foundation's Foundry Blog

    The Hill

    Justice at Stake

    Los Angeles Times

    National Journal

    New York Times

    New York Times: Room for Debate Blog


    Paul Clement (in Slate)

    People for the American Way

    Phoenix New Times


    Portland Press Herald

    Reason: Hit & Run


    Rick Hasen (in The New Republic)

    Stephen Hoersting (in National Review)


    Tuscon Weekly


    USA Today

    Wall Street Journal

    Washington Examiner

    Jeff Patch has a must-read account of the latest affront to unfettered speech on the Internet.  The Federal Election Commission on Wednesday denied a request by the social-media website Facebook that would have allowed the company to sell advertising space to candidates and political parties without requiring the ads to contain a lengthy disclaimer stating who paid for the ad.  Because Facebook ads are so small, the ruling makes them far less practical, in turn making it harder for poorly funded candidates to use Facebook as a cheap way to reach out to voters.


    Facebook had argued that their ads should be treated like campaign pens or buttons, which are exempt from the disclaimer requirement.  That wasn’t a bad argument, considering the FEC had ruled less than a year ago that short ads on Google were not required to contain a full disclaimer.  But as Patch reports, the three Democratic Commissioners weren’t buying it this time:


    “The Internet is nothing like pens and buttons. It has a range of fabulous capabilities,” said [FEC] Commissioner Ellen Weintraub. “My Facebook app on my phone is really smart . . . I will get a chime telling me that my daughter poked me.”


    In the end, the FEC denied Facebook’s request by a deadlocked 3-3 vote along party lines. For the whole story, check out Patch’s great write-up in the Daily Caller.

    Congratulations are due to friend-of-IJ Steve Hoersting, who, along with Dan Backer, Benjamin Barr, and the Center for Competitive Politics, just scored an early victory in Carey v. FEC, a challenge to federal campaign finance laws.


    For those who aren’t well-versed in campaign finance law, the legal issue in Carey is somewhat arcane; it concerns whether so-called “Super PACs” can establish separate bank accounts that will raise limited funds for the purpose of making contributions directly to political candidates. But even though the legal issue is complicated, the principle Carey vindicates couldn’t be simpler: The Federal Election Commission cannot simply ignore court rulings against it.



    The fact is, this case never should have had to go to court in the first place. The plaintiffs, retired Adm. James J. Carey and the National Defense Political Action Committee, wanted to engage in activity that the D.C. Circuit Court of Appeals had already ruled was perfectly legal in a case called EMILY’s List v. FEC.


    But things are never that simple when you’re dealing with the FEC, whose business, as the U.S. Supreme Court has recognized, “is to censor.” The FEC refused to give Adm. Carey and his group permission to operate, leaving the court as their only alternative. This is a perfect illustration of what the Supreme Court was talking about in Citizens United v. FEC when it noted that federal campaign finance laws “function as the equivalent of prior restraint by giving the FEC power analogous to licensing laws implemented in 16th- and 17th-century England, laws and governmental practices of the sort the First Amendment was drawn to prohibit.”


    Lucky for Adm. Carey and NDPAC, Judge Rosemary Collyer of the D.C. District Court knocked this one out of the park. Judge Collyer thought the plaintiffs’ case was so strong that she granted them a preliminary injunction, which will prevent the government from enforcing the campaign finance laws against them and allow them to speak freely in the 2012 election while the case goes forward.


    Judge Collyer’s ruling is notable not just for reaching the correct result, but because it takes the FEC to task for its approach both to regulation and litigation. Her ruling describes the FEC’s unconvincing attempt to distinguish the EMILY’s List case as “plain wrong,” and is particularly critical of the FEC’s “questioning of Plaintiffs’ intentions,” which she concludes “does not well serve the agency or its argument.”


    All in all, a great way to kick off the case, which will hopefully move quickly to a final ruling on the merits. Congratulations again to all involved for their hard work.


    The full text of the Carey opinion is available here (.pdf).

    My colleague Steve Simpson has an excellent op-ed in today’s edition of The Wall Street Journal, discussing the prosecution of former Senator John Edwards for alleged campaign-finance violations.  Here’s a snippet:


    It seems that everyone other than the most devoted supporters of campaign-finance laws thinks that the Justice Department’s indictment of John Edwards is overkill. Mr. Edwards cheated on his wife while she was dying of cancer, then he used over $900,000 given by two campaign donors to cover it up. In the process, he paid off an aide to pretend that he was the father of Mr. Edwards’s love child. It’s behavior that would make even Anthony Weiner blush.


    But being a creep is not illegal. So why is any of this the government’s business?


    The short answer is that campaign-finance laws make it the government’s business. Those who are outraged at the Edwards indictment should take note that when we have laws that make helping candidates illegal, prosecutions like this are inevitable.


    Be sure to check out the whole thing.

    Cato Institute Senior Scholar and noted jazz critic Nat Hentoff makes the case for constitutional protection of anonymous speech:


    New York City Comptroller John Liu and New York City Public Advocate Bill de Blasio, last seen here enjoying the finer things in life thanks to excess campaign funds provided by the City taxpayer, announced last week that their efforts to require Sprint Nextel to disclose political spending had taken a step forward. The Pension Funds holds over 8 million shares of Sprint Nextel with an asset value of over $41 million—in other words, Liu controls a big share of the ownership of Sprint.



    Why does Liu care about Sprint’s political spending? As Comptroller, Liu has a fiduciary duty to maximize the benefits to the participants of the New York City Pension Funds—namely, current and former New York City teachers, firefighters, and police officers. As a fiduciary, Liu “must discharge his or her duties … solely in the interest of the plan’s participants and beneficiaries. In the discharge of those duties, the fiduciary must act for the exclusive purpose of providing benefits to participants and defraying the reasonable expenses of administering the plan.” 60 Am. Jur. 2d Pensions and Retirement Funds § 437.



    It is unclear how forcing companies to disclose their political giving is “act[ing] for the exclusive purpose of providing benefits to participants.” So who does benefit from this effort? The trustees of the New York City Pension Funds are New York City elected officials and the heads of large public sector unions. These folks could certainly find the political spending of corporations to be very interesting, especially if the corporations are funding challengers to these politicians or supporting candidates who take positions with which the public sector unions disagree. Despite the talk about “transparency and accountability,” knowing a corporation’s political spending makes them susceptible to targeted government retribution or union activism and protest.



    Liu and de Blasio should not be using the pensions funds of hundreds of thousands current and former employees of New York City to create an enemies list for incumbent politicians and powerful public sector unions.   Perhaps it is time for New York City retirees to remind Liu that, in administering the Funds, his job requires him to keep their financial interests—and not the political interests of New York’s elected officials and union bosses—foremost in mind.

    There have been few politicians who have fallen so far and as fast as John Edwards. It is difficult to argue that he did not earn it, either. However, even someone as oleaginous as he does not deserve his latest problem.



    The New York Times reports that the Justice Department will soon be indicting Edwards on criminal charges for misusing campaign funds. The indictment will allege that Edwards used money solicited from two wealthy donors to hide his affair and the child he had with his mistress, Rielle Hunter, as well as to pay off an aide to claim to have fathered that child in order to cover for Edwards. The Justice Department is proceeding under campaign finance laws because, as the Times reports, “[t]he money could be considered campaign contributions if prosecutors can show that Mr. Edwards helped orchestrate donations to hide Ms. Hunter or that he knew the money would be used to keep the affair hidden so it would not hurt his candidacy.”



    To put it in technical terms, this is nuts. What Edwards did was a lot of things, none of them very nice, but it is a stretch to call them campaign finance violations. Only through a series of ridiculous assumptions can one call the money solicited to pay off his mistress and a fall-guy campaign contributions. Instead, the government’s desire to prosecute him appears to be a radical expansion of what the law considers campaign funds. If this definition sticks, it would give the government enormous power to investigate and prosecute any solicitation of money used to benefit someone who happens to be a candidate, no matter how tangentially connected to the candidate’s actual campaign. One hopes that Edwards will fight, and stop, this effort to expand campaign finance laws to cover monetary transactions that have nothing to do with campaigning.

    The last time we wrote about FEC Commissioner Don McGahn, we were reporting the well-deserved rebuke he delivered to “reform” proponent Norman Ornstein in the pages of Roll Call.  As TPMMuckraker reports, McGahn is continuing to speak his mind in response to his critics:


    “I feel bad for” the reform groups that call the agency dysfunctional, [McGahn] said. “Much of their life’s work has been rendered irrelevant by a series of stinging court cases.”


    The campaign finance lobby is, naturally, offended by McGahn’s blunt statement.  But there is nothing inaccurate about it.  Much of the reformers’ handiwork has been undone over the last five years, and there is no reason to expect that this will change anytime soon.  And although the “reformers” may despair at these developments, we celebrate them as victories for free speech and we applaud McGahn for calling it like he sees it.

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    My colleague Steve Simpson and I have an op-ed in The Wall Street Journal today discussing TV funnyman Stephen Colbert’s latest riff on Citizens United v. FEC.  As some of our readers may know, Colbert has been trying to start a federal PAC to satirize the ease with which “unlimited corporate money” can be collected in the wake of Citizens United.  But Colbert is quickly discovering that campaign finance law remains incredibly difficult to navigate, particularly for political novices:


    “Why does it get so complicated to do this? I mean, this is page after page of legalese,” Mr. Colbert lamented. “All I’m trying to do is affect the 2012 election. It’s not like I’m trying to install iTunes.”


    Well, that’s pretty much what the nonprofit group Citizens United said to the Supreme Court in the case that Mr. Colbert is trying so hard to lampoon.


    Be sure to read the whole thing.


    Update:  Professor Rick Hasen, proprietor of the invaluable Election Law Blog, offers his thoughts on our op-ed:


    Though I don’t agree with these gentlemen on the substance of campaign finance law, I have been thinking similar things about some of the unintended consequences of the Colbert gambit.  This is a lot more dangerous for campaign finance law than Colbert’s Hail to the Cheese candidacy from 2008.

    minnesotaYesterday, the Eighth U.S. Circuit Court of Appeals issued a split decision upholding Minnesota’s post-Citizens United campaign finance law.  By a 2-1 vote, the court determined that even though the U.S. Supreme Court in Citizens United ruled corporations cannot be forced to form burdensome PACs in order to speak about elections, it is entirely ok for Minnesota to do the same thing.  We’ve discussed the case before when it was filed last year.


    Basically, the Eighth Circuit said that the regulations Minnesota imposes on PACs are not as burdensome as those at issue in Citizens United.  The court latched onto Citizens United’s approval of some disclosure requirements in making this argument, stating that because Minnesota’s system serves the purpose of disclosure it is constitutional.


    But there are two problems with this reasoning.  First, the differences between Minnesota’s PAC regulations and those at issue in Citizens United are minimal.  Each scheme requires speakers to appoint treasurers, complete and file detailed reports, and disclose all kinds of information.  Second, the disclosure laws upheld in Citizens United were entirely separate from the PAC regulations it struck down and far less burdensome.  So the Eight Circuit has essentially used one part of Citizens United as the grounds for ignoring another part of the decision.


    Judge Riley, however, authored a terrific dissent that hopefully will inspire judges elsewhere to enforce the First Amendment and protect free speech.  Among other things, he said “Under Minnesota’s scheme, a corporation is compelled to decide whether exercising its constitutional right is worth the time and expense of entering a long-term or even perpetual morass of regulatory red tape.”  The Supreme Court held in Citizens United that the First Amendment does not allow government to impose that choice on speakers.  It’s unfortunate that the two judges on the Eight Circuit did not understand that, but in the long run, we think other courts will.

    The Blog of Legal Times reports on yesterday’s argument in Bluman v. FEC, a First Amendment challenge to federal campaign finance laws that prohibit noncitizens from making contributions or expenditures related to federal elections.


    bluman_groupThe challenge was brought on behalf of two noncitizens: Benjamin Bluman, a Canadian lawyer who supports Democrats, and Asenath Steiman, an Israeli-Canadian doctor who supports Republicans.  Both Bluman and Steiman lawfully live and work in the United States.  But because they are not classified as “permanent residents,” they are prohibited from making political contributions or expenditures.


    The legal theory of the case is straightforward:  Courts have long held that noncitizens who are lawfully within the United States enjoy the full protection of the First Amendment.  The U.S. Supreme Court has held that citizens have a First Amendment right to make political contributions and expenditures.  Therefore, noncitizens who are lawfully within the United States should have the right to make political contributions and expenditures.


    Although straightforward, the argument is also controversial.  Politico’s coverage of the case, titled “Lawsuit revives fears of foreign cash,” discusses some of the dire predictions from the Federal Election Commission, which is defending the law, and the conspiracy-theorizing from groups like ThinkProgress regarding the funding of the case.


    As we’ve noted before, concerns about foreign money in elections are vastly overblown.  Money spent on campaigning is money spent persuading American voters, who ultimately control the levers of power in this country.  The First Amendment protects that right.  Perhaps more importantly, the First Amendment protects the right of voters to decide where they will get their information.  As Justice Kennedy aptly put it in Citizens United v. FEC,


    When Government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves.


    In short, there is no reason to be any more concerned about electoral speech from non-permanent residents—who live in America, are subject to our laws, and pay taxes—than we are about foreign newspapers, which routinely weigh in on American elections, or foreign authors, who routinely write books about American policies.  All are equally valid contributions to the marketplace of ideas.


    We say, “Bring on the Bluman groups.”


    Image Source: Robert Goodwin

    Former Republican Senator Alan Simpson has penned an op-ed for The Washington Post in which he urges Republicans to support Senator Richard Durbin’s Fair Elections Now Act, which would provide government funds for politicians to run for office. At a time when the federal government’s debt is reaching unimaginable levels, Simpson wants both parties to support forcing Americans to subsidize the campaigns of the political class, including those that borrowed and spent that money in the first place.


    Simpson, a co-chair of Americans for Campaign Reform, argues that a raft of benefits will result from forcing Americans to subsidize the campaigns of politicians that they don’t support or to which they are indifferent. These benefits are largely, if not entirely, illusory. More to the point, he argues that the First Amendment is served by using the force of law to compel Americans to subsidize political campaigns.


    Although Republicans have traditionally been less enthusiastic about campaign finance reform than most Democrats, caprealsmallSimpson’s view of the First Amendment is indistinguishable from notable Democratic supporters of restrictions on speech, like Russ Feingold, Dick Durbin and Sherrod Brown. Simpson was one of the bipartisan collection of politicians who signed onto an amicus curiae brief in favor of Arizona’s matching funds scheme in the Arizona Freedom Club PAC v. Bennett/McComish v. Bennett case that argued that the government has almost unlimited powers in subsidizing preferred speakers in a campaign.   He was a witness for the government in support of the McCain-Feingold law, the worst assault on the First Amendment since the Alien and Sedition Acts. In his op-ed, he states that Citizens United v. FEC established “a remarkable right of corporate personhood that I have yet to find in the Constitution,” when the decision actually recognized that, under our Constitution, the government cannot put people in jail for making a movie urging a vote against a political candidate. In other words, he is of one mind with those reformers who think “Congress shall make no law…abridging freedom of speech” means Congress can make lots of laws abridging freedom of speech.


    It is not surprising that campaign finance reform attracts supporters from both parties. Besides protecting incumbents, many political opponents of unfettered political activity have a more personal reason for getting rid of privately financed campaigns. In his testimony in favor of the Fair Elections Now Act, Simpson stated: “I felt ugly, embarrassed [raising funds] . . . . If you talk to someone who likes to beg for money, you’re talking to a delusional man . . . . We were elected to legislate. We cannot legislate if we have to fund-raise day and night.” In other words, we need to limit speech and force Americans to fund political campaigns so that politicians do not have to sully themselves asking for money, thereby further insulating the political class from the public they are supposed to represent and serve. Of all the reasons reformers have put forth to justify their attacks on the First Amendment, however, “keeping elected officials from feeling embarrassed” is probably the absolute worst.

    Attorney David Marston and former Bush-administration official John Yoo had an op‑ed in yesterday’s Wall Street Journal making the case against the White House’s efforts to force federal contractors to disclose contributions, not just to candidates, but to any group that might run political advertisements.  As Make No Law readers are aware, this is a backdoor effort by the White House to achieve by fiat what it was unable to achieve in Congress, namely, passage of the so-called DISCLOSE Act.


    keep-out-report-1Marston and Yoo’s op‑ed is notable, not just because it makes a strong case for the unconstitutionality of the Obama administration’s actions, but as mark of how much the debate over regulation of political speech has shifted in the last decade.  When the now half-dead McCain-Feingold law was enacted in 2002, a major talking point among conservative elites was “no limits, full disclosure.”  But increasingly—and quite correctly—opinion makers are beginning to recognize the significant costs that disclosure can impose on political participation.


    So what has changed?  Unquestionably, part of this change in elite opinion has been driven by high-profile incidents of political retaliation made possible by campaign finance disclosure.  But on top of this, we simply know more about the chilling effect of disclosure now than we did in 2002 because social scientists have, for the first time, started measuring it.  Indeed, the Institute for Justice has led the way, publishing multiple studies that examine the burdens disclosure places on grassroots political activists, including:


    Disclosure Costs: Unintended Consequences of Campaign Finance Reform


    Campaign Finance Red Tape: Strangling Free Speech & Political Debate


    Locking Up Political Speech: How Electioneering Communications Laws Stifle Free Speech and Civic Engagement


    Mowing Down the Grassroots: How Grassroots Lobbying Disclosure Suppresses Political Participation

    Keep Out! Campaign Finance Laws as Barriers to Entry


    Other political scientists have now joined this debate.  Professor Raymond La Raja of the University of Massachusetts, Amherst, recently released a working paper titled Does Transparency of Political Activity Have a Chilling Effect on Participation?  His study measured “how individuals respond differently to making campaign contributions or signing petitions when provided with a subtle cue that the information will be made public.”  His findings?  Not only does disclosure have a chilling effect on participation, but the result is particularly pronounced for small donors and women.


    La Raja concludes that his findings “should spur policymakers to reconsider the cost-benefit tradeoffs for disclosure policy, particularly for campaign finance.”  Based on the growing number of elite voices questioning the conventional wisdom that more disclosure is always better, it seems that they might be.  Here’s hoping that judges will follow suit.

    terminator_bigFreedom of speech is on the rise. America’s campaign finance censors are losing in the courts. They are losing in the legislatures. And, perhaps most importantly, they are losing on the battlefield of ideas. But despite all of that, the forces of censorship are as dogged and relentless as a cyborg killing machine from the future. Backed into a corner, the speech police continue to try to squelch speech by any means necessary.


    It wasn’t always like this. In years past, the campaign finance “reformers” had been quite successful at getting courts to approve one restriction on political speech after another. Their high-water mark (if one can call it that) came in 2003, when the U.S. Supreme Court in McConnell v. FEC said that Congress could ban corporations and unions from running ads that merely mentioned a candidate close to an election.


    But thankfully, that streak of victories came to an end in 2006 with the Supreme Court’s opinion in Randall v. Sorrell. Over the next couple of years, the Court took small steps to reversing the damage its earlier rulings had done. In 2010, though, the Court struck a decisive blow for free speech in Citizens United v. FEC, where it wisely ruled that the government may not ban certain disfavored speakers from independently advocating for or against candidates.

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    Proponents of taxpayer funding for political campaigns, such as Arizona’s “Clean Elections” system, have long argued that it would make races more competitive, reducing the advantages enjoyed by incumbents and easing the path to office for challengers. A new paper finds just the opposite: Public funding increases the incumbency advantage. The paper, by Timothy Werner and Kenneth Mayer, is the first one listed at this link.


    The finding is especially interesting because it is about full public funding programs, which is to say, those with the “matching funds” provisions at issue in Arizona Free Enterprise Club v. Bennett, the case now before the U.S. Supreme Court. Moreover, one of the authors of the new paper has long argued—including in expert testimony defending Arizona’s program in Arizona Free Enterprise Club—for the theory of increased competition from public funding. But the evidence belies such claims.


    An analysis of legislative races in 44 states over 30 years shows that the incumbency advantage is nearly 38 percent greater in election cycles with public funding than in those without. That makes taxpayer funding look more like the “incumbency protection racket” that critics charge than any good government reform.


    Indeed, the authors conclude, “Proponents of full public funding programs, as well as other, smaller-scale reforms, need to temper claims regarding the impacts of such schemes and restrictions on electoral contests and outcomes.”


    This is yet more evidence that taxpayer funding schemes fail to deliver on their backers’ promises.

    We previously blogged about FEC Commissioner Don McGahn’s recent op-ed in Roll Call, which took self-styled “reformers” to task for accusing him of failing to follow his oath of office.  Citizens for Responsibility & Ethics in Washington (CREW) has responded to McGahn’s charges of baseless name-calling with . . . more name-calling.


    Here’s a representative quote:


    Whenever he’s finally shown the door, Mr. McGahn should consider a career as a fiction author. His op-ed in Roll Call this morning shows he has a real talent for it.


    That’s pretty brazen, considering that CREW does not attempt to rebut even a single statement in McGahn’s op-ed.  Luckily for CREW, the First Amendment protects their right to make ad hominem arguments, and even the right to use financial resources to promote those baseless arguments.  Indeed, that was the point of McGahn’s op-ed:  The First Amendment protects the right of all Americans to make their voices heard on issues and candidates they care about, without regard to complaints from “reformers” who would silence those voices.

    FEC Commissioner Don McGahn, a staunch supporter of the First Amendment, has penned a stunning rebuke of Norm Ornstein and other campaign finance “reformers.”  The entire op-ed is worth reading, but here’s a particularly great passage:


    The reality is that Ornstein and his reformer cohorts are experiencing the demise of their longed-for utopia and a rapid descent into utter irrelevancy. Following the passage of McCain-Feingold (much of which Ornstein is credited with having written) and McConnell v. FEC, Ornstein and the reformers were riding high — it looked as though their ideals might be realized. But then, when their ideals were applied to real people in real situations, the court said enough is enough, and their utopia collapsed under its own weight (as such impossibly idealistic visions tend to do).


    Be sure to check out the whole thing.


    Like many people, professor of law and former congressional candidate James L. Huffman had always assumed that public disclosure of political contributions was a good thing.  But as Huffman recounts in The Wall Street Journal, his opinion changed when he ran for office as the Republican nominee for the U.S. Senate seat in Oregon in 2010.  As Huffman puts it, “The reality is that public disclosure serves the interests of incumbents running for re-election by discouraging support for challengers.”


    How does it work?  By giving incumbents the power to intimidate even small-dollar donors:


    A challenger seeks a contribution from a person known to support candidates of the challenger’s party.  The potential supporter responds:  “I’m glad you’re running. I agree with you on almost everything.  But I can’t support you because I cannot risk getting my business crosswise with the incumbent who is likely to be re-elected.”

    .       .       .

    Disclosure makes threats possible, and fears of retribution plausible.  Within weeks of a contribution of $200 or more, the contributor’s name appears on the public record.  Contributors know this, and they know that supporting the challenger can, should the challenger lose, have consequences in terms of future attention to their interests.  Of course no incumbent will admit to issuing threats or seeking retribution, but the perception that both exist is widespread.


    The U.S. Supreme Court has become increasingly hostile to campaign finance laws that protect incumbents from competition.  At the same time, the Court has often been more forgiving of disclosure laws.  This is perplexing, because the argument for anonymity in political speech is the same argument that is widely accepted as a justification for the secret ballot:  It prevents public officials from intimidating citizens on the basis of their political activity.


    It would be nice if courts expressed as much concern about “intimidation and the appearance of intimidation” as they do for “corruption and the appearance of corruption.”


    Hopefully experiences like Huffman’s—along with the growing body of evidence that disclosure laws empower political elites by tying up grassroots activities in red tape—will cause the Supreme Court to reexamine the artificial distinction it has made between disclosure laws and other campaign finance laws.  Both burden speech, both protect incumbents and both are unconstitutional.


    Hat tip to Prof. Jonathan Adler.

    Last week, I argued the case of Arizona Freedom Club PAC v. Bennett to the U.S. Supreme Court concerning the constitutionality of the “matching funds” provision of Arizona’s public financing system. One of the issues was whether this law was implemented in order to “fight corruption” in politics. The proponents of the law argued that the law was essential to remove the corrupting influence of private money, thus freeing candidates to act ethically without compromising their ability to raise campaign funds.


    New York City has a public financing system that provides some useful examples of just how ethical and incorruptible politicians are when they have extra taxpayer money left over after their publicly financed campaigns are finished. NBC-TV in New York reported last week that “[o]ut of 140 candidates who accepted taxpayer dollars to boost their 2009 bid for office, [Councilmember Erik] Dilan was the only one to refund the entire balance [of excess funds] to taxpayers.  Only 11 candidates returned any money at all.  Out of $27.3 million in public matching funds, candidates have paid back just over $51,000.”




    On what have these incorruptible politicians been spending their excess taxpayer subsidies? Bill de Blasio is New York City’s Public Advocate and was last seen on this blog bullying corporations into foregoing political activity. He and John Liu, the New York City Comptroller, wrote in the Huffington Post following the Citizens United decision, “We now need to use every available avenue to hold corporations and their boards of directors accountable for their political spending.” How did de Blasio spend his excess taxpayer funds? “[de Blasio] used surplus campaign funds to pay for nine parking tickets and a $1,083 trip to Puerto Rico.  So far, he has not paid back any of the $2.2 million dollars in matching funds he received in 2009.” And Comptroller Liu? “[He] spent more than $20,000 on three volunteer and victory dinners.”


    Apparently, “accountability” is important to these politicians when it comes to corporations spending their private money on free speech, but not so much when it comes to their spending the money of hard-working New Yorkers on their own political speech and questionable perks.


    So, congratulations to Councilmember Dilan, the only one out of 140 recipients of New York City’s political welfare system who actually appears to care about the people who earned that money. Unfortunately, he is far outnumbered by politicians like de Blasio and Liu, who are dedicated to ceaselessly fighting the corrupting influence of big private money—once they get back from their latest taxpayer-financed trip to Puerto Rico or lavish victory dinner, of course.

    One of the more persistent myths of government campaign financing programs is that their purpose is to enhance First Amendment values. Justice Kagan made that claim on Monday when she said during the oral argument in the IJ/Goldwater challenge to Arizona’s system that with government financing, “it’s more speech all the way around.” The Huffington Post repeats this argument.


    But government funding in any area never measures up to its proponents rosy predictions. Social Security, Medicare and Medicaid were supposed to provide retirement funds and medical care for a small segment of the population. All three are now gigantic bankrupt welfare programs that provide fewer and fewer benefits at a higher and higher cost. Government meddling in the housing industry certainly provided more homes, but, as the ensuing housing crash and depressed market have shown, it turned out they were homes that no one wanted. The list of government failures of this type is almost endless.


    Why would we expect government campaign funding to be any different?


    In fact, the purpose of state funding isn’t to increase speech at all, but to reduce it by limiting campaign spending. Proponents of Arizona’s system made this perfectly clear when the law was being debated. As one document said at the time, state funding will




    The structure of the law leaves no doubt about its purpose. In exchange for state money to run their elections, candidates may not accept private funds and must limit their spending to the amount of the grants the state provides. Less spending necessarily means less speech during the election. How exactly does that serve First Amendment “values”?


    And not just anyone can receive state funds. If they could, every crackpot with an axe to grind would run for office on the government’s dime. So the law requires candidates to qualify by raising a sufficient number of $5 contributions—4410 for governor, 2755 for attorney general and so on. Most “average citizens” are not going to convince thousands of people to give them $5 to run for public office. In fact, the type of person who is likely to do that is the same type who would run without public financing. That has often been the case in Arizona, as many candidates who formerly raised private funds just switched to the state-funded system. If these people were willing to sell their souls for a few private campaign contributions, what is the likelihood that they suddenly became virtuous when they accepted state funding? And the qualifying contribution requirement places a premium on connections to groups, like unions, that can produce a lot of individual $5 contributions in a hurry. So much for getting “special interests” out of campaigns.


    Under state-funded campaigns, the main difference from what we have now is that candidates have less reason to meet with supporters, who previously funded their campaigns, and will definitely have to limit their spending and thus the speech their campaigns produce.


    As my colleague Bill Maurer aptly put it during his argument to the Supreme Court, “This case is about whether the government may insert itself into elections and manipulate campaign spending to favor its preferred candidates.” These programs deserve to die a hasty death.


    Audio from the oral argument in Arizona Free Enterprise Club v. Bennett is now available


    IJ-WA Executive Director Bill Maurer leads off the argument, followed by Bradley Phillips, defending the law, at 25:40.  William Jay, defending the law on behalf of the United States as amicus curiae, follows at 46:00.  Maurer’s rebuttal begins at 56:20.


    Earlier news coverage of the argument is available here.

    One of the favorite, and most incredible, tactics of those defending Arizona’s Clean Elections scheme is to close their eyes to evidence that its matching funds provision has deterred the speech of privately funded candidates and independent groups and then assert such evidence doesn’t exist. I pointed this out in an earlier post, and in yesterday’s Supreme Court argument, Bradley Phillips, defending matching funds, predictably tried this line of attack.


    Justice Scalia would have none of it:


    There was testimony in the, in the district court from individuals who said that they withheld their contributions because of this. It’s – it’s obvious statistically also that many of the expenditures were made late in the game, where perhaps they were not as effective, in order to be unable to trigger the matching funds in time for the opposing candidate to do anything about it. I do not understand how you can say that there is no evidence. I mean, maybe you might say I do not find the evidence persuasive, but don’t tell me there’s no evidence.


    Later in the argument, our colleague Bill Maurer pointed to the specific examples of candidates and independent groups declining to do mailings or raise funds or get involved in particular races because matching funds would kick in. You can read about some of those here.


    Justice Scalia is referring to the original research done in the case by political scientist David Primo, who found that privately funded candidates—especially in competitive races—would delay speaking until “late in the game” to avoid triggering matching funds to taxpayer-funded opponents. That means less time for candidates to speak and less time for voters to consider the message. The First Amendment does not tolerate such government interference in what ought to be free speech in the time and manner of the candidate’s or group’s own choosing.


    Incidentally, Primo’s statistical research is backed up by interviews by political scientist Michael Miller and the GAO. Miller finds that such delay is commonplace among privately funded candidates, and the GAO adds that independent groups act similarly. That’s rather a lot of evidence to deny and makes Clean Elections’ defenders’ tactic look not only like a poor strategic choice, but also downright misleading.

    Congratulations to our colleague Bill Maurer, who did an outstanding job arguing before the U.S. Supreme Court today in Arizona Free Enterprise Club v. Bennett.  As the early news coverage notes, the conservative members of the Court were skeptical of the government’s arguments and seemed inclined to hold Arizona’s law unconstitutional.  That’s good news for free-speech advocates.


    For more information on the case, be sure to check out Maurer’s op-ed in today’s edition of USA Today and my colleague Steve Simpson’s op-ed at  Additional pre-argument coverage by John Lott and Brad Smith is available at National Review Online and the Wall Street Journal.


    We will continue to provide links to news coverage of the argument, and will provide a link to the argument transcript as soon as it becomes available.


    UPDATE:  Click here to read the transcript of Monday’s argument.


    Additional coverage of Mondays argument:

    ABA Journal

    ABC News

    All Headline News

    Arizona Republic

    Associated Press

    Bangor Daily News


    Cato @ Liberty

    Center for Competitive Politics

    Center for Responsive Politics

    Christian Science Monitor


    Common Cause

    Connecticut Mirror

    East Valley Tribune

    First Amendment Center

    Fox News

    Los Angeles Times

    Milwaukee Journal Sentinel

    Mother Jones

    National Journal

    New York Times

    PBS Newshour

    Phoenix New Times




    Talk Radio News Service


    USA Today

    Wall Street Journal (and another (and another))

    Washington Examiner

    Washington Post

    Washington Times

    The Weekly Standard

    Charles Fried and Cliff Sloan argue in the New York Times that the U.S. Supreme Court’s ruling in Citizens United should lead the Court to uphold Arizona’s system of government-funded political campaigns.  To the contrary, Citizens United held that government cannot burden speech based on the identity of the speaker.  But that is exactly what Arizona’s law does: It was designed—and sold to the public—as a way to discourage speech by privately funded candidates and the groups that support them.


    Fried and Sloan seem untroubled by this. Indeed, they argue that there are no limits on the government’s power to selectively fund its preferred speakers.  Thankfully, the current Court is skeptical of campaign finance laws precisely because of the risk that they will be used to rig elections.  We hope this skepticism will lead the Court to strike down Arizona’s unconstitutional “clean elections” system.


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    Writing for Slate, election-law scholar Rick Hasen previews IJ’s upcoming argument before the U.S. Supreme Court in Arizona Free Enterprise Club v. Bennett, which along with the consolidated case McComish v. Bennett, challenges Arizona’s unconstitutional system of publicly financed “matching funds.”  Hasen—a staunch proponent of campaign finance restrictions—is no fan of our work on the case, which he claims boils down to “wealthy candidates and outside groups” arguing that “more speech is unfair.”  But Hasen’s criticisms badly miss the mark.


    supremecourtMuch of Hasen’s argument is framed in terms of hostility towards “wealthy candidates and outside groups.”  Of course, these groups are entitled to First Amendment protection, just like anyone else.  But more importantly, this framing is based on two false assumptions: that only wealthy candidates and groups will benefit if Arizona’s law is struck down, and that Arizona’s law does not currently disproportionately benefit wealthy groups.  Neither of these assumptions is correct.


    First, Arizona’s law is designed to discourage all privately funded candidates—both rich and poor—from raising more than an arbitrarily set amount of money to get their messages out to the public.  The fact that the law destroys the incentive to raise and spend private money on political campaigns was one of the major selling points used by the laws proponents.   A victory for our clients in Arizona would certainly help candidates who can afford to bankroll their own campaigns.  But it will also help candidates of modest means who exercise their constitutional right to raise private funds.  And it will help all independent groups—whether well-financed or not—that wish to spend money supporting privately financed candidates.


    Second, some of the biggest beneficiaries of the current law are wealthy “outside” groups.  Under Arizona’s law, if an independent group spends money supporting a privately funded candidate who is facing a government-funded opponent, the government will cut a check for an equal amount to the government-funded candidate.  This is true even if another, wealthier independent group has spent a vastly larger amount of money supporting the government-funded candidate.  In other words, independent groups of modest means who support privately funded candidates face a drag on their First Amendment rights that wealthy groups supporting government-funded candidates are not subject to.  Striking down Arizona’s matching-funds law would put all independent groups—rich and poor alike—on the same legal footing.


    Hasen also claims that our argument that matching funds violate the First Amendment is “at odds with the ‘more speech is better’ mantra of the court in Citizens United.”  This argument reveals that Hasen’s view of the First Amendment is, on a fundamental level, very different from ours.  More importantly, it is different from the view held by the five Justices in the Citizens United majority.


    It is questionable whether Arizona’s law increases the overall amount of speech, but it doesn’t matter either way.  Any such effect is totally irrelevant to the First Amendment question, which is:  Does the law unconstitutionally chill speech by privately funded candidates and the independent groups that support them?  Simply put, the government cannot defend a law that chills one speaker on the grounds that it encourages a different speaker.  The First Amendment, after all, is not a mandate for government to increase the aggregate amount of speech in society.  It is a negative command:  “Congress shall make no law . . . .”  It constrains the government’s ability to interfere in the marketplace of ideas, as Arizona has sought to do with its so-called “Clean Elections” system.


    Finally Hasen attempts to distinguish the Supreme Court’s 2008 ruling in Davis v. FEC, which controls the outcome of this case.  In Davis, the Supreme Court struck down the so-called Millionaire’s Amendment, a provision of the McCain-Feingold campaign finance law that increased the maximum amount of money a political candidate could accept from contributors if he was running against a self-financed opponent.  The Court held, correctly, that the Millionaire’s Amendment unconstitutionally burdened the right of self-financed candidates to robustly fund their own campaigns, because doing so triggered a benefit to their opponents.


    Arizona’s law is even worse than the law in Davis.  In Davis, favored candidates were only given the opportunity to raise additional money.  In Arizona, the government gives them a direct subsidy.  Hasen attempts to distinguish Davis, arguing that “Arizona did not enact its system to ‘level the playing field,’” but this critique simply doesn’t match up with the facts.  In reality, the proponents of Arizona’s law expressly sold it to the public as a means of leveling the playing field.


    In short, Hasen’s article does little more than express frustration at what we hope will be the imminent demise of Arizona’s matching-funds system.  Hasen’s frustration is undoubtedly shared by many proponents of campaign finance laws who, over the last five years, have seen many of those laws struck down.  But the fact that Hasen and others are frustrated, and would prefer that government have the power to micromanage political speech—amplifying some speakers and muting others—is not an argument that the First Amendment gives government that power.  It does not, which is precisely why we have challenged Arizona’s law for over a decade, and why the Supreme Court should strike it down.

    Earlier I took issue with blog posts by Ezra Klein and political scientist Michael Miller claiming supposed benefits from so-called “Clean Elections” laws like Arizona’s, which will be considered by the U.S. Supreme Court on Monday.  But perhaps a more nefarious tactic of defenders of such schemes is to deny that they have any effect on speech at all.


    In a nutshell, Clean Elections’ defenders want us to believe that incentives don’t matter.  Economists would certainly be surprised to learn that.  And the testimony of candidates and independent groups in the case suggest otherwise, as do public funding backers themselves when they argue that “matching funds” are essential to encouraging candidates to sign up for taxpayer funding in the first place.  The claim also defies common sense:  If the government sends a buck to your opponent every time you spend a buck, this will probably have some effect on your spending and, therefore, speaking.



    Yesterday, Ezra Klein linked to a graph that, he says, shows the importance of so-called campaign finance “reform,” and more specifically using taxpayer dollars to fund the campaigns of political candidates.  This matters now because on Monday the U.S. Supreme Court will hear a challenge to one the most sweeping of such schemes, Arizona’s “Clean Elections” law.  Interestingly, the graph and Klein’s post tell us much more about the impulse behind campaign finance “reform” than they do about the supposed benefits of such systems (or whether they are constitutional).



     Katrina Trinko of NRO reports:


    During most elections, candidates accuse their opponents of making false claims. In Ohio, they can go a step further: They can ask a government commission to decide who is telling the truth.


    For more on this modern-day Ministry of Truth, click here.

    supremecourtYesterday, the Institute for Justice filed a reply brief in the U.S. Supreme Court in support of its challenge to Arizona’s Clean Elections Act. The Goldwater Institute, which is litigating a related challenge before the Court, filed its reply brief on Tuesday.


    For those of you who don’t remember, Arizona’s system gives publicly financed candidates government money whenever traditional candidates or independent groups speak “too much.” Here’s a short video that explains how the Act works:




    The reply briefs that the Institute for Justice and the Goldwater Institute filed demonstrate not only how this regime violates the First Amendment, but how it flouts a directly controlling U.S. Supreme Court case that was decided just three years ago.


    The U.S. Supreme Court will hear oral argument in the case on March 28th. Come back to for more updates as the case progresses.

    wisconsinAs we’ve discussed on before, in July 2010, the Wisconsin Government Accountability Board issued a rule that all communications made for a political purpose—including emails, Facebook posts, t-shirts and handmade signs—are subject to disclosure and reporting requirements if a speaker spends more than $25 producing them.  Although the worst aspects of the rule have been temporarily suspended, it will fully take effect again by September 2011.


    The rule does not just apply to traditional “express advocacy” asking people to vote for or against candidates.  Sixty days before an election, the rule mandates reporting of money spent on any statement that “refers to the personal qualities” of a candidate or “supports or condemns” a candidate’s position on issues.


    Thankfully, a number of groups and individuals have challenged the rule in the Wisconsin Supreme Court.  This week, the Institute for Justice filed a brief in support of them, arguing that the new rule will have significant chilling effects on citizens’ ability to engage with their neighbors on important public issues.  The brief is available here (pdf).


    Given what’s been going on in Wisconsin lately, the brief is a very timely reminder of the importance free speech plays to all sides of political debate.  For example, if the members of the Wisconsin Assembly and the Governor were up for reelection within the next 60 days, the protestors who have criticized their actions over the past few weeks would have violated the law and been subject to criminal penalties because they didn’t report every penny spent on their protests.  If the First Amendment means anything, it protects the protestors, and everyone else, from such a ridiculous rule.

    On March 2, the U.S. Supreme Court, in an 8-1 opinion written by Chief Justice John Roberts, handed down its ruling in Snyder v. Phelps, upholding the right of the Westboro Baptist Church to stage vile protests of military funerals.  The New York Times, in an editorial titled “Even Hurtful Speech,” praised the opinion for its “incisive language,” and its recognition that “even deeply flawed ideas must be defended because they are part of the public debate on which this country depends.”  The Washington Post, in an editorial titled “The right to even ugly free speech,” shared this praise, noting, “The beauty of the First Amendment is often most vibrantly expressed under the ugliest of circumstances.”


    WestboroWhile these papers pat themselves on the back for their fidelity to the First Amendment, let’s keep something in mind:  These same papers excoriated the Supreme Court when it held that Congress lacked the power to ban a political documentary produced with corporate money.  What gives?


    The answer is that the Westboro Baptist Church’s speech, while vile, is also totally inconsequential.  Nobody is going to be persuaded by their inarticulate grunts of rage.  And it is relatively easy to tolerate speech that you do not believe will persuade anyone.  What is considerably harder is to stand up for speech that is persuasive, speech that might actually cause people to adopt beliefs or enact policies that you disagree with.


    So the New York Times and the Washington Post have it wrong.  The beauty of the First Amendment is not that it leads us to tolerate the insignificant antics of the Fred Phelpses of the world.  Rather, it is that the First Amendment permits us—and commits us—to resolve even our most consequential disagreements peacefully, with words, not force.


    Image Source: k763

    Ciara Torres-Spelliscy of the Brennan Center has an article in The Hill in which she invokes Ronald Regan’s famous dictum “trust but verify” in support of more disclosure laws for those who spend money on political ads. It may seem overwrought to compare spending on political speech with nuclear arms races, but I suppose a writer’s got to find their metaphors where they can.


    More to the point, Ms. Torres-Spelliscy’s central claim—that “the voting public cannot tell who is paying for a growing percentage of political ads, leaving them in the dark about who is trying to sway their vote”—is just not true.


    In fact, it’s exceedingly easy to figure out who is trying to sway your vote in each election. All you have to do is examine the issues and think a little. Businesses tend to oppose high taxes and regulation, especially those that impact their own industries. Labor unions support policies, like collective bargaining, for example, that benefit them. Ideological and policy groups take positions that are consistent with their world views.


    If you aren’t sure how particular policies impact the various interest groups and industries out there, there are plenty of sources of that information available, from newspapers and magazines, to talk radio, to television news programs, to blogs and other websites, to your friends, neighbors, and colleagues. There is so much information out there about politics and policy these days that you really have to work hard to ignore it.


    This is probably the reason that few people ever check state or federal campaign finance reports. Even the media don’t report that information very often, other than when it is particularly relevant—such as when disclosure itself is a hot topic. This would seem to indicate that there isn’t a huge demand for this information. That’s not surprising, as you can easily evaluate a message without knowing who the messenger is or who funds him.


    But disclosure laws have always been more about attacking the messenger than evaluating the message. Criticizing the Chamber of Commerce for failing to disclose all of its funding sources or the tea parties because they’ve received funding from the Koch brothers is a lot easier than rebutting their arguments.


    People are of course free to make ad hominem arguments if they want, but it’s not at all clear why the government should support their efforts with disclosure laws. Ms. Torres-Spelliscy claims that “we’re told to trust, but can’t verify,” but that’s wrong on both counts. The truth is, we are free to decide for ourselves what to trust and perfectly able to verify it. The First Amendment “confirms the freedom to think for ourselves,” as the Supreme Court put it in Citizens United, but it doesn’t appoint the government to do our thinking for us.


    “Trust but verify” is a clever slogan, but the better approach is to verify or don’t trust and to take the responsibility to do both of those things yourself.


    TeaParty-AliceIn a recent Huffington Post piece, Carl Pope from the Sierra Club calls out the American Petroleum Institute for forming a political committee that will contribute to congressional candidates. What does Pope find so damning? According to API’s executive vice president for government affairs:


    "At the end of the day, our mission is trying to influence the policy debate."


    This, to Pope, is completely unacceptable. He states that “[i]f API is making its campaign contributions to influence the policy debate, then it is engaging in bribery.”


    Bribery? That’s a strong word. If Pope is right, then all sorts of things that people legitimately do to influence public policy should be considered bribery as well. Every election season, millions of people make campaign contributions. They do it so that candidates they agree with get elected and pass laws and policies they favor. Are all of these people guilty of a federal crime?


    Or what about the actions of legislators themselves? On the floor of the House and Senate every day, Congressmen “horse trade” by agreeing to vote for one another’s preferred legislation. In the recent health-care debate, congressional leaders scrounged for “yes” votes by making the “Cornhusker Kickback” and the “Louisiana Purchase.” Odious? Maybe. Illegal? No.


    There is no way that anyone can take API’s relatively innocuous statement and, with a straight face, argue that it amounts to bribery. The federal bribery statute says that “[w]hoever directly or indirectly, corruptly gives . . . anything of value to any public official with intent to influence any official act shall be fined under this title . . . or imprisoned for not more than fifteen years.”


    So, for there to be bribery, there must be something “corruptly” given. Without any evidence of an actual quid pro quo, a legal campaign contribution is just that: legal. It’s certainly not corrupt. All API has said is that it wants to influence the policy debate, which is true of everyone who makes contributions or speaks out during elections.  The Sierra Club is a good example.


    If speaking out and seeking redress from the government is bribery, then the entire American system of representative democracy is corrupt to its core. There are certainly many things the government does that it should not, and it is not surprise that a lot of Americans line up and ask the government for various goodies. To end this groveling, we must reduce the government’s power to hand out goodies in the first place. It is emphatically not to say that certain disfavored speakers should be silenced. A government of unlimited power that listens only to certain select groups is a recipe for disaster.

    An update to yesterday’s post concerning Public Campaign Action Fund’s manufactured scandal in Wisconsin.  The Washington Post has a copy of PCAF’s letter demanding an investigation of Gov. Scott Walker.  In addition to the charge of attempted coordination (which we debunked yesterday), the letter also charges Gov. Walker with illegally soliciting political contributions using state facilities.



    Just like PCAF’s coordination charge, this charge is also fatally flawed.  First, it is extremely doubtful that Gov. Walker’s request for messages “[r]einforcing why [proposed legislation concerning unions] was a good thing to do for the economy, a good thing to do for the state,” could be considered a solicitation for “political purposes” under Wisconsin Law, because the requested messages do not pertain to an election or a candidate.  If PCAF were correct, it would mean that it is illegal for legislators to use their office resources to promote legislation, merely because doing to might produce electoral benefits for the legislator or his colleagues.  That reading of the law cannot be right because it would essentially outlaw politics


    But even if we accepted this absurd interpretation of the law, PCAF’s claim would still fail because, again, Gov. Walker was talking with a prank caller, not David Koch.  This means that, at most, his statements would be an attempt to solicit candidate support using public resources.  But this is not illegal under Wisconsin law.  Actually soliciting candidate support using public resources is a misdemeanor and, like almost all misdemeanors, is exempt from Wisconsin’s criminal-attempt law.  Wis. Stat. § 939.32.  In other words, in Wisconsin there is no such crime as attempting to solicit candidate support using public resources.


    Once again, this is something that PCAF could easily have discovered if they had bothered to read Wisconsin’s laws before leveling their frivolous allegations.  But when your main interest is using campaign finance laws for partisan advantage, why bother with details.

    Update: Click here to read about Public Campaign Action Fund's latest frivolous charges against Wisconsin Gov. Scott Walker.


    As if one needed further evidence that the primary beneficiaries of campaign finance laws are the political operatives who try to use them for partisan advantage, Public Campaign Action Fund has accused Wisconsin Gov. Scott Walker of illegal campaign “coordination” based on statements he made during a prank call by a blogger posing as libertarian political activist David Koch.



    This claim is nonsense on every possible level.  First, Governor Walker wasn’t actually talking to David Koch.  Even if he had been, his statements did not meet the legal definition of coordination.  And, most importantly, coordination is not illegal.


    Before going into detail on these points, first we need to explain what this charge actually means.


    “Coordination” is campaign-finance jargon for expenditures that are prearranged between a candidate and another person who wants to help that candidate’s election campaign.  So, for example, if Candidate A asks Group B to run television advertisements supporting his campaign, and Group B does so, that would be considered a coordinated expenditure.  Coordinated expenditures are not illegal, but they are usually subject to the same limits as direct contributions to the candidate, under the theory that there is no practical difference between giving a candidate the money to run advertisements himself or directly paying for those advertisements at the candidate’s request.


    Public Campaign Action Fund claims that the following exchange from the prank call may have constituted illegal coordination:


    Gov. Walker: “After this in some of the coming days and weeks ahead, particularly in some of these more swing areas, a lot of these guys are going to need . . . they don’t need initially ads for them, but they’re going to need a message out.  Reinforcing why this was a good thing to do for the economy, a good thing to do for the state.  So to the extent that message is out over and over again is certainly a good thing.”


    Ian Murphy (posing as David Koch): “Right, right.  We’ll back you any way we can.”


    So is this illegal?  No, as Public Campaign Action Fund could easily have discovered if they had taken a few moments to read the relevant Wisconsin regulations (.pdf) instead of dashing off press releases while, by their own admission, still “in discussions with election experts on whether Gov. Walker may have broken state election law and whether a complaint should be filed.”


    Washington state has a budget deficit of more than half-a-billion dollars and significant structural problems that will likely leave it lurching from fiscal crisis to fiscal crisis in the coming years. In the midst of these problems, legislators in Olympia are making the tough decisions. Besides designating a state rock (Tenino quarry sandstone—obviously the work of big-money Tenino quarry sandstone interests), certain legislators also want to pressure Congress to repeal the First Amendment.washington


    Senate Joint Memorial 8007 requests Congress to pass an amendment declaring that corporations are not persons so that their speech can be restricted.The reason, according to the Memorialists, is that corporations cannot vote and therefore should not be protected by the First Amendment. But disenfranchised convicts, resident aliens, and minors cannot vote either. Do the Memorialists believe that, under a correct interpretation of the First Amendment, the government can pass laws making it a crime for an ex-convict to give a speech or write a book? Sorry, Malcolm X, Angela Davis, and William S. Burroughs, you’re all under arrest—again.


    Of course, the goal here is to overturn the U.S. Supreme Court’s decision in Citizens United v. FEC, but under a plain meaning of such an amendment, Congress and state and local governments could also deprive organizations like the Sierra Club and the American Civil Liberties Union from the protections of the Third, Fourth, and Fifth Amendments, as well as the First Amendment. Thus, if passed, the government could quarter soldiers in the headquarters of Common Cause and search the offices of without a warrant.


    The details of the proposed amendment are ultimately irrelevant, as repealing the First Amendment is unlikely in the near future and this is little more than a time-consuming bit of political theater paid for by Washington taxpayers. Nonetheless, the taxpayers should welcome it—it keeps the proponents of this law from causing mischief with other legislation.


    On his website, Senator Adam Kline, the chief sponsor of the Memorial, closes his biography by saying, “Political action is good for you.” He forgets to add, “unless you incorporate.” Then Senator Kline thinks political action ought to land you in prison.

    PaperworkThere’s a piece at Campus Progress, an effort of the Center for American Progress, praising the efforts of young 20-something progressives who run for office, and profiling a few candidates who have run races against established politicians.  The funny thing to me about the article is that it fails to discuss these young people filling-out campaign finance paperwork while running for office.  The only reference it makes to campaign finance laws at all is in praising Connecticut’s public financing system (which, as readers of this blog may know, the Second Circuit found largely unconstitutional last year).  The article acknowledges there are many burdens in campaigning, but implies that when it comes to campaign finance this only falls on the fundraising side: “While their youth provides them with flexibility and a fresh viewpoint, college students still face significant barriers when it comes to asking for votes and, sometimes more important, asking for financial contributions.”


    I can attest from personal experience that when you run for office, particularly when you only have a handful of inexperienced people helping you, complying with campaign finance paperwork is a confusing hassle, and often a nightmare.  While a college senior in 1997, I ran for St. Paul City Council as basically a paper candidate (I barely campaigned and spent very little money; perhaps just over $100).  Even then there were multiple forms I had to fill out, sign, and file.  To this day I have no idea if I completely them correctly, although as IJ has demonstrated there’s a good chance that despite my efforts I broke the law in some way.


    Perhaps the candidates Campus Progress profiles did not have these troubles because they were helped by friendly organizations with time and resources to help them get their paperwork in order.  But that’s the whole point.  For citizens running for office that don’t have that kind of assistance—whether they’re young or old—campaign finance laws take away from the time they could be campaigning and may discourage them from running at all.


    ImageSource: luxomedia

    More than a year after the U.S. Supreme Court’s ruling in Citizens United, attacks on that historic ruling just keep coming.  The latest comes from a group called, which has submitted a complaint (.pdf) to the D.C. Bar arguing that Justice Clarence Thomas should have recused himself from the case.


    The reason?

  claims that Justice Thomas’ recusal was required under the Supreme Court’s recent ruling in Caperton v. A.T. Massey Coal Co., 129 S. Ct. 2252 (2009), because, in 1991, Citizens United spent $100,000 on ads independently urging the Senate to confirm Justice Thomas to the bench.


    Put bluntly, this is crazy.


    Caperton dealt with an elected justice of the West Virginia Supreme Court, whose campaign had benefited from millions of dollars in independent expenditures by a litigant who had a multi-million-dollar case on its way to the state supreme court within a matter of months.  The U.S. Supreme Court held that the elected judge should have recused himself, because the extraordinary events of that case created the “probability of actual bias.”


    Even assuming that the reasoning of Caperton could apply to federal judges—who have life tenure and no incentive to repay favors—there is absolutely no way that Caperton would have required Justice Thomas to recuse in Citizens United.  The situation in Caperton was, in the Court’s words, “extreme by any measure,” and the ruling was “thus . . . confined to rare instances” that created the “probability of actual bias.”


    Only someone with an ideological axe to grind could make the groundless accusation that Justice Thomas should have recused himself in Citizens United.  No intellectually honest person could believe that Thomas voted the way he did in Citizens United because, 20 years ago, Citizens United said nice things about him in a television ad.  And no intellectually honest person could believe that Thomas would have voted differently if the petitioner had been some other nonprofit, and not Citizens United.  Those who make claims to the contrary never really hope to win; their only goal is character assassination.  They and their empty efforts should be called out.


    During Justice Thomas’ service on the Supreme Court, there have been 10 major campaign finance cases.  In every one of those cases, Justice Thomas has voted against regulation and in favor of free speech, often writing separately to explain why, in his opinion, the entire enterprise of campaign finance regulation is unconstitutional.


    Justice Thomas’ unbroken voting record over 20 years shows only one bias, and that is in favor of free speech and the First Amendment.  We should applaud this bias in Justice Thomas and hope for as much in all our judges.

    Astute readers of this blog will note that its name is “Congress Shall Make No Law,” not “Parliament Shall Make No Law.” A story from Canada, however, teaches important lessons about how regulation can strangle basic human rights like the right to freely speak or peaceably assemble.


    As described in the FrumForum, municipal regulations and enormous fines threatened to shut down the Liberty Summer Seminar, a libertarian Woodstock that takes place every summer on the farm of Peter Jaworski and his parents, Marta and Lech, in Ontario, Canada. Ironically, a peaceful gathering of freedom-minded folks from across North America faced extinction because municipal bureaucrats kept piling regulatory requirements on the hosts.


    Enter the Canadian Constitution Foundation, a group which is bringing strategic litigation for liberty in Canada, particularly those rights enshrined in the Canadian Charter of Rights and Freedoms. The CCF argued to the Municipality of Clarington that its efforts to regulate the Liberty Summer Seminar into the ground violated the Charter’s guarantee of the “freedom of peaceful assembly.” As the FrumForum’s Tim Mak reports today, the Municipality has backed off and specifically recognized “their use of the property was purely for the purpose of a peaceful assembly and expressive activity.”




    The CCF’s efforts represent a great victory for some wonderful people and demonstrate the emergence of a new and powerful voice for freedom in Canadian courtrooms. But we in America should not feel immune from this kind of overbearing government. When the government has the power to regulate so much of our daily lives, it should come as no surprise that it will use this power to burden our fundamental political rights, including the right to discuss what is wrong with the government. The ability of a municipality to use its sign code to stop protests of its eminent domain policies is precisely the issue my colleague Michael Bindas will be arguing on Wednesday, February 16, to the Eighth Circuit Court of Appeals in St. Louis.


    The rights protected by the Canadian Charter and the U.S. Constitution require those, like the Jaworskis and IJ client Jim Roos, willing to stand up for freedom. It’s good to see that kind of courage on both sides of the 49th Parallel.  


    Image Source:  CuppoJoe




    If it could, the ginormous publicity machine backing Justin Bieber would have never let this happen.









    Image source: jake.auzzie’s photostream






    Wendy Kaminer explains why over at the Atlantic.

    New York Times columnist Adam Liptak has penned a thoughtful column on the meaning of the First Amendment’s protection for freedom of “the press” and its application to corporations.  Some critics of the Supreme Court’s ruling in Citizens United argue that the institutional press—unlike other corporations—enjoys special protection under the First Amendment, but as Liptak correctly notes


    [T]he argument is weak. There is a little evidence that the drafters of the First Amendment meant to single out a set of businesses for special protection. Nor is there much support for that idea in the Supreme Court’s decisions, which have rejected the argument that the institutional press has rights beyond those of the other speakers.


    There is a practical problem, too, especially in the Internet era. Who, after all, is “the press”? Anyone with a Twitter account?


    Read the whole thing.


    Hat tip to Chaim Gordon.

    The sports world is abuzz with the news that Daniel Snyder has filed a defamation lawsuit against the Washington City Paper because he is upset that it has been critical of his tenure as owner of the Washington Redskins.


    In particular, he’s mad about a recent article in the paper that, in the words of Washington Post columnist Gene Weingarten, described him as


    an avaricious, imperious, conscienceless plutocrat with callous contempt for the fans; a man whose Napoleonic, pouter-pigeon swagger conceals a doofus-like understanding of the game and whose pernicious, autocratic meddling has consigned the team to perpetual mediocrity and its players and coaches to a perennial state of harrowing anxiety, all of this starting virtually from the moment [he] arrived and continuing to this very minute.


    The overwhelming response to the lawsuit seems to be that Mr. Snyder should be flagged for acting like a thin-skinned bully.


    But I disagree. All the naysayers are missing the point. They should instead see the lawsuit for what it really is: a valiant stand against the evils of corporate speech. After all, the City Paper is owned and published by a corporation, Creative Loafing, Inc. And that corporation is owned by a private equity firm that no doubt has investments in other, perhaps even more nefarious corporations.  


    By filing his lawsuit, Mr. Snyder is standing up for the little guy against the power of corporations, which—as we have been constantly reminded by critics of the Supreme Court’s decision in Citizens United v. FEC—shouldn’t have any First Amendment rights because they aren’t real people.


    Creative Loafing has clearly used financial resources that normal folks don’t have access to in order to write, print, and distribute a story that has unduly influenced the public into believing Mr. Snyder is a humorless dweeb. The only reason his message—that he’s a competent NFL owner and not a total jerk—hasn’t gotten through to the public is because it’s been drowned out, not only by Creative Loafing, but also by bigger corporate-owned media outlets like the Washington Post (see above) and ESPN.  


    We can only hope that he’ll attempt to shut up these and other corporations soon, including those that try to influence Americans about things that are almost as important as football (e.g., elections). Because unless we are going to surrender control of public debate to faceless, soulless corporations, we’ll need heroes like Mr. Snyder to protect us from them. (I mean, he’s got to win at something, right?)


    [Update: Yes, this post is intended to be satirical.  (See my comment below.)]


    Image source: Ed Yourdon

    On January 28, a federal judge in Maryland handed down a ruling that neatly illustrates how far the U.S. Supreme Court’s precedent has drifted from the idea that political speech is at the core of what the First Amendment was intended to protect.


    The case, O’Brien v. City of Baltimore, involved a challenge by a Catholic-based crisis-pregnancy center to a Baltimore ordinance that would have required them to put up a sign in their lobby stating that the center “does not provide or make referral for abortion or birth-control services.”  Because the First Amendment protects not just the right to speak but also the right to choose what one will say, the center objected to the ordinance on the grounds that it unconstitutionally compelled them to speak.


    The district court in O’Brien correctly concluded that the required disclaimer was compelled speech and that the ordinance must be subject to the highest level of judicial scrutiny, known as “strict scrutiny.”  The court went on to hold that the law failed strict scrutiny because the government’s alleged interest in combating “deceptive advertising” by crisis-pregnancy centers could have been achieved by simply modifying the city’s existing anti-fraud statute, without compelling the centers to convey a message they would prefer not to convey.


    So far so good—except for the fact that the Supreme Court has upheld disclaimers in the campaign finance context for ads that support or oppose candidates.  The district court in O’Brien recognized this and was forced to explicitly distinguish disclaimers in the campaign context from those at issue in the case.  Here’s what the court said:


    Strict scrutiny review is a standard traditionally used when examining regulations of fully protected speech rather than the ‘exacting scrutiny’ standard described in Citizens United v. Fed Election Comm’n.,__ U.S. __, 130 S. Ct. 876 (2010) (addressing a First Amendment Challenge to political campaign laws).


    In short, speech about a crisis-pregnancy center is “fully protected” under the First Amendment, but speech about candidates is not.  The Framers gave us the First Amendment specifically to allow citizens to, among other things, talk about and criticize their government.  Yet three decades of campaign finance decisions have forced a district court to have to say, in effect, “Unlike political speech, the speech at issue here is entitled to significant First Amendment protection.”  Nonetheless, decisions like the one in O’Brien are important—by exposing the contradictions between our First Amendment rhetoric and our First Amendment as enforced by the courts, it lays bare how far we have drifted from first principles.  And that is the first step to restoring those principles.


    Hat tip to The Volokh Conspiracy.


    The full text of the O'Brien ruling is available below the break.


    Over at ACSblog, Ohio State law professor Dan Tokaji argues that it’s time for campaign finance “reformers” to proclaim proudly that “equality,” rather than “corruption,” is the reason they favor restricting political speech:


    Acceptance of equality as a rationale won't make hard questions surrounding campaign finance regulation disappear. It will, however, ensure that we are asking the right question: Whether particular regulations will really promote political equality, without unduly infringing other values like fair competition. The time has come for U.S. reformers to embrace equality openly, rather than continuing to disguise it in the garb of anticorruption. This approach will not find favor before the current U.S. Supreme Court. In the long run, however, it will lead us toward a healthier democracy that more closely approaches the ideal of equality for all citizens, regardless of wealth.


    We agree that “reformers” should be more candid about how the equality rationale is at the heart of their efforts to limit speech. But Professor Tokaji fails to realize that there’s a very good public-relations reason for “reformers” to keep that rationale under wraps: It’s pretty obvious that it will inevitably lead to censorship.


    For example, under the equality rationale, there’s no reason the government couldn’t silence media outlets and outspoken critics of the government’s policies on the ground that those speakers aren’t promoting political equality—defined by the government as the implementation of its policies. If the public rejects those policies, then speech must be limited further to avoid what the government deems to be inegalitarian outcomes.


    These logical implications of the equality rationale do not, to say the least, enhance the marketability of campaign finance “reform.” 


    Professor Tokaji does not grapple with these implications.  Perhaps he hopes that wise and benevolent leaders will be fair in their policing of political speech, including speech they don’t like, but he should know better. Perhaps he hopes that the only leaders who will exercise this power will be those who promote his notion of “equality,” but, again, he should know better.


    Thankfully, the Founding Fathers did know better. That’s why the First Amendment commands that “Congress shall make no law . . . abridging the freedom of speech.” Whether regulations comply with it—rather than whether they promote an amorphous notion of political equality—is the right question to ask. Until he does so, Professor Tokaji (and other proponents of the equality rationale) will keep coming up with the wrong answers about the government’s power to limit political speech.

    Republicans in Congress have responded to the apparent desire among voters for smaller government with a proposal to eliminate the public financing system for presidential elections. Our friends over at the Center for Competitive Politics present some very compelling reasons for ending the program. As they point out, doing so would save a minimum of $617 million over ten years on a program that, after President Obama declined funds in 2008, is unlikely to draw any interest among serious candidates in the future without a substantial increase in the program. Brad Smith estimates that the fund would need at least $750 million to entice candidates to participate, which is more than the budgets of the Corporation for Public Broadcasting, the Consumer Products Safety Commission, the U.S. Commission on Civil Rights, the Holocaust Museum, and the FEC combined. Of course, unserious candidates seem to love public financing. As CCP points out, such luminaries as Alan Cranston of Keating Five fame, ex-Gov. Milton Schapp of Pennsylvania, who was later convicted of fraud, and perenial political gadfly Lyndon LaRouche have received financing under the program.


    Another very good reason to eliminate the program is that the Constitution nowhere authorizes Congress to give taxpayer dollars to presidential candidates. Admittedly, we are in the minority in making this claim. In 1937, the Supreme Court regrettably upheld Congress’s power to spend money on anything deemed to serve the “general welfare,” and it later applied that reasoning specifically to the presidential public financing program in Buckley v. Valeo in 1976. But it’s never too late to get things right, and fortunately, the Constitution is on our side. (Toward that end, yesterday IJ launched the Center for Judicial Engagement, which is dedicated to demonstrating that the courts ought to take the Constitution, and, in particular, the limits on the size and scope of government, seriously. You can read more about it here.)


    Finally, public financing of campaigns inevitably leads to restrictions or burdens on freedom of speech. For example, Arizona has set up a system that effectively punishes privately funded candidates and independent groups for spending more on their campaigns than their publicly funded opponents. The system is designed to force all candidates into the public system, where their spending is “leveled” and their voices equalized. The government has no place regulating speech in this way. IJ, along with the Goldwater Institute is challenging that system before the U.S. Supreme Court.


    As Brad Smith says, “Congress should return to First Amendment first principles and create a doctrine of separation of campaign and state.” Politicians have been talking the limited government talk for months now. It’s time for them to walk the walk.

    Today, Citizens United v. FEC turns one year old. That’s cause for celebration.


    As readers of this blog know, in Citizens United the Supreme Court vindicated free-speech rights by holding that the First Amendment prevents the government from banning corporations from spending their money to express their views about candidates for office. The Court’s decision was an emphatic reminder that, under the First Amendment, the government may not censor political speech, no matter who is doing the speaking: “When Government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful.”


    There will be time enough to document, rebut—and yes, laugh at—the continuing hysterical attacks on Citizens United by campaign finance “reformers.” But for now, I hope you’ll join Congress Shall Make No Law in celebrating Citizen United’s first birthday by changing your Facebook status to “Happy Birthday, Citizens United v. FEC.” And when you’re at happy hour this evening, please raise a glass to that decision’s robust defense of free speech.


    Image source: Zellaby

    “People for the American Way” has released a deeply ridiculous video that purports to explain the impact of Citizens United.  The takeaway seems to be that the biggest beneficiaries of the Citizens United ruling are homophobes, anti-Semites and people who want to poison babies (seriously, we aren’t making this up).  Their solution?  Amend the Constitution to restrict free speech.




    Even setting aside PFAW’s outrageous hyperbole, their calls to restrict speech should offend all Americans.  While PFAW positions itself as a defender of democracy, the entire premise underlying their video is that voters are too stupid to elect the “right” candidates if they are also permitted to listen to corporate speech.  And PFAW’s proposed “solution”—silencing disfavored speakers to “improve” democracy—is nothing more than what the U.S. Supreme Court correctly described as censorship for the purpose of thought control.


    If you agree with the Supreme Court that “the First Amendment confirms the freedom to think for ourselves,” then make your voice heard by letting PFAW know what you think of their video.

    At a time when proponents of stricter campaign finance regulations continually howl about the increasing costs of political campaigns, you would think that a grassroots political group would be applauded for trying to keep costs down.  But according to a Washington Post story released late last week, the organizers of a write-in campaign for former D.C. Mayor Adrian Fenty may soon be fined $18,500 for violating campaign finance laws.


    Their crime?  Recycling.


    It seems that the Save D.C. Now Committee “used unused campaign signs, leaflets and stickers to try to get voters to write in Fenty instead of supporting [Vincent] Gray.”  The materials were left over from Fenty’s unsuccessful primary campaign.


    recycleGray’s campaign lawyer responded by filing a campaign finance complaint against the group.  “They alleged that campaign finance laws forbid a political community [sic] from using materials paid for by another.”


    Regardless of the legal merit of these allegations, this is yet another example of how campaign finance laws—ostensibly passed to limit the “corrupting” influence of big money on politics—make genuine grassroots political campaigning virtually impossible.  The Save D.C. Now Committee raised a grand total of $7,000.  They are now being fined more than twice that, and for what?  For not letting perfectly usable political signs and stickers go into the garbage.


    The Office of Campaign Finance still has an opportunity to reverse this ridiculous fine.  Here’s hoping they do.


    Image source: TheTruthAbout

    Linda Greenhouse uses the occasion of congressional Republicans reading the Constitution on the House floor to take a jab at the Supreme Court’s ruling in Citizens United v. FEC and the constitutional fidelity of its supporters.  Says Greenhouse:


    It was just last January, in the Citizens United case, that the court granted corporations a robust First Amendment right, as citizens, to spend money in support of or against candidates in federal elections.


    House Republicans could read the Constitution every day between now and July 4 without finding a word about corporate citizenship. Funny, but it just doesn’t seem to be there.  Call it a problem of democracy.


    This critique turns the Constitution on its head.  It should surprise no one that the Constitution does not explicitly address the right of citizens to speak through the corporate form.  Indeed, the genius of our constitutional system is that it makes such an explicit statement unnecessary, because the rights we enjoy as Americans are numerous and indefinite, while the powers of Congress are limited and enumerated.


    We_the_peopleFor those who complain that Citizens United lacks a basis in the text of the Constitution, we ask, “What is the textual foundation for Congress’ power to ban independent corporate speech?”  One could, after all, read the First Amendment every day between now and July 4 without finding a single exception to the plain command that “Congress shall make no law . . . abridging the freedom of speech.”  One could also scrutinize Article I of the Constitution—which establishes the powers of Congress—in search of an enumerated power that grants Congress the authority to regulate the independent speech of any group of people, but this search too will turn up nothing.


    If anyone is ignoring the text of the Constitution, it is the opponents of Citizens United.  A faithful reading of that text makes clear that Congress lacks the authority to restrict political speech, whatever the source.


    Image source: Roberthuffstutter

    Check out my colleague Bill Maurer's guest column in the Seattle Times warning the Washington State Legislature not to convert a political scandal into speech-squelching legislation.

    Will the new Congress respect free speech, or will its members act like they went to Camp Politics?  Below, check out IJ’s new video of bonus footage not seen in its original Camp Politics video, which explained how politicians learn how to circumvent the First Amendment with campaign finance laws.


    More Lessons From Camp Politics

    Will the new Congress respect free speech, or will its members act like they went to Camp Politics?  Below, check out IJ’s new video of bonus footage not seen in its original Camp Politics video, which explained how politicians learn how to circumvent the First Amendment with campaign finance laws.

    [Embed of new video here].  

    More Lessons From Camp Politics


    Will the new Congress respect free speech, or will its members act like they went to Camp Politics?  Below, check out IJ’s new video of bonus footage not seen in its original Camp Politics video, which explained how politicians learn how to circumvent the First Amendment with campaign finance laws.


    [Embed of new video here].  

    wisccheeseThings keep happening to the right to speak in Wisconsin.  It is hard for anyone to keep up with what you can, or cannot, say in the Cheesehead state.*


    First a quick recap.  As we have discussed several times before at (here, here, and here), last summer the Wisconsin Governmental Accountability Board issued an outlandish rule that, among other things, requires anyone who spends more than $25 on criticizing or praising a candidate within 60 days of an election to report that spending to the government.  So if you buy a $26 sweatshirt that says “I ♥ Mary Smith” and Mary Smith is running for office, and you don’t report that spending, you break the law.


    Earlier this month the Wisconsin Supreme Court agreed to hear a legal challenge to the new rule.  That challenge applies to the reporting requirement on criticism and praise of candidates, but also to other censorship provisions in the new rule, such as extending reporting requirements to money spent on emails.


    Faced with the Wisconsin Supremes agreeing to hear the case—and the likelihood they will strike the rule down—the Governmental Accountability Board has now amended the rule to no longer apply to mere criticism or praise of candidates.


    Of course, this obviously is an attempt to avoid the legal challenge.  It is not even a real change as it is a temporary “emergency rule” and the old provision could be reinstated when the challenge is over.


    More importantly, the change only happened because citizens fought back with the means to challenge the rule in court.  Without these challenges the Board would have marched forward with its attempt to criminalize all manner of citizen speech.


    This is important to remember when looking at campaign finance laws as a whole.  If people do not challenge how the government regulates speech the government inexorably will censor it.  There are thousands of campaign finance laws in every jurisdiction of the country, many of which are never challenged in court, and many of which nevertheless go on to intimidate citizens into silence.  Thus the more challenges people bring, and the more light they shine on the censors’ practices, the less likely we will end up with rules like the one in Wisconsin.


    *As a proud alumnus of the University of Wisconsin-Madison, I think I get to use this term.

    Recently reelected by an exceedingly narrow margin, Congressman Tim Bishop of New York’s First Congressional District, knows what is to blame for the electoral bullet he so narrowly dodged:  the First Amendment.  Writing in Newsday, Rep. Bishop calls for more campaign finance regulation because, after Citizens United, “any person or group can spend an unlimited amount of money to advocate for or against a candidate in federal elections.”  The dangers of people engaging in unlimited advocacy for or against a candidate in federal elections are practically self-evident:  some of that speech may be directed against politicians who do not think they deserve to be the target of “partisan attacks.”  People like Tim Bishop, for example.


    Rep. Bishop believes that unregulated political speech leads to “incivility and misinformation,” and that type of speech needs to stop.  In short, Rep. Bishop wants to control the amount of speech that occurs in campaigns because he is in power and people say bad things about him.  But that is the purpose of the First Amendment: to allow people to freely criticize people in government without government interference.


    For all his complaints about misinformation, Rep. Bishop’s piece is filled with errors and misstatements that he could have corrected by spending five minutes on the Internet (for instance, Citizens United did not overturn a century of legal precedent and individuals have had a recognized constitutional right to spend unlimited amounts in federal elections since 1976).  Indeed, it is disturbing that a U.S. congressman knows so little about the constitutional provision he wishes to eviscerate and the cases interpreting it.  Rep. Bishop does understand one thing very well, though:  campaign finance regulation insulates those in power from criticism and, as one of those in power, he thinks that that is a very good thing.

    Politico reports that the FEC has denied a request from a wireless industry lobbying group to allow people to make small donations to candidates and parties via text messaging. Apparently, the FEC thought that donations in this manner might allow contributors to exceed the $50 limit on anonymous contributions and would violate the rules that determine how quickly contributions must be forwarded to a campaign’s treasurer.


    tall-stack-of-papersOne can certainly criticize the FEC for its conservative, rule-based approach to an innovative way for people to support candidates and parties. (Indeed, as the Court stated in Citizens United, “The FEC’s ‘business is to censor.’”) But the fact is, all regulatory agencies behave this way. Their mandate, after all, is not to make it easy for people to engage in regulated behavior, but to make sure that people follow all their complex rules and regulations. If that means delaying or forgoing entirely the use of new technologies that facilitate political participation, well, tough.


    The FEC may, in its own sweet time, come around to recognizing the value of allowing people to contribute money to political campaigns using all sorts of new technologies. In the meantime, we might consider anew why we ever decided to empower a federal agency to make these decisions for us.




    Today's Daily Caller contains an interesting op-ed about food advertising.




    It turns out that would-be censors of all stripes share a common conviction: that the American public is stupid. And because they believe that Americans are inherently gullible, these know-it-alls feel it is their sacred calling to control what information is put out there so that people will make the "right" decisions.


    But freedom of speech is based on the idea that the people, not self-appointed experts, are perfectly able to govern their own lives. As Justice Anthony Kennedy so eloquently put it in Citizens United:


    When Government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves.

    My colleague Bill Maurer, the lead attorney in IJ’s challenge before the U.S. Supreme Court in Arizona Free Enterprise Club PAC  v. Bennett, was recently quoted in an editorial column in The Seattle Times discussing the case.  The column’s author argues that campaign finance systems like Arizona’s—that seek to limit political spending by creating disincentives to speak—are unconstitutional, and that as long as large donors are disclosed, candidates should be able to raise as much money as they want from whomever they want.  This kicked off a lively debate among readers, one of whom had the following criticism of disclosure-only systems:


    The problem with just letting anyone spend what they want as long as it is disclosed is that even if people know who is spending it, it still influences them. People still eat fast food even though they know it is bad for them, and we know advertising has a big effect on that.


    I_votedThis shabby, paternalistic view of voters rests at the heart of policies that restrict what people can raise or spend on political speech, but it is rare to see it expressed so forthrightly.  More often, proponents of campaign finance restrictions warn against big spenders “buying elections” by “drowning out” their competitors.  But however it’s expressed, the sentiment is the same:  Unless government controls the messages people hear, voters will elect the wrong people.  Of course, those who hold this view never think that they could be so easily fooled.  It’s only the other guys—who, coincidentally, hold different political beliefs—who are bamboozled by campaign ads.


    Thankfully the Framers of the First Amendment didn’t share this dim view of the voting public.  To the contrary, they recognized that nothing could be more destructive of liberty than to give our elected officials control over speech about elected officials.


    Image source: programwitch

    Our friends at the Center for Competitive Politics have just released a new report laying out a policy agenda that “outlines steps policymakers can take to increase incentives for citizen participation in politics, encourage electoral competition and simplify the maze of campaign finance regulations.”  While we disagree with some of their suggestions, and feel that others (like raising disclosure thresholds) don’t go far enough, the report is well worth reading.  In contrast with the tired rhetoric from groups urging ever-greater government control over political speech, CCP makes a number of common-sense suggestions that would promote free speech and political participation while making our nation’s campaign finance laws far more rational.

    Wendy Kaminer has a terrific takedown in the Atlantic of the latest silliness emanating from campaign finance “reformers”: a proposed constitutional amendment that would allow Congress to regulate corporate political speech.


    It’s hard to find a favorite passage from this article, because practically every sentence is a gem. But if I had to choose, I’d go with her dissection of the mantra that “money is not speech”:


    Put aside the fact that liberals never complain that money isn’t abortion rights when they lobby for medicaid funds or that money isn't the right to an attorney when they lobby for indigent defense funding. Instead, simply remember reformers’ claim that money isn't speech when they explain that restrictions on corporate expenditures are essential to democracy because monopolizing wealth enables corporations to monopolize speech. In other words, they implicitly argue, we need campaign finance restrictions because money is speech. But explicitly conceding that money is speech would require them to acknowledge an intent to limit First Amendment rights, to engage in arguments about the value of corporate political advocacy, and present compelling reasons for criminalizing it. That’s a debate advocates of reform want very much to avoid, which is why they also attack the notion of corporate personhood.  


    We’ve said it before; we’ll say it again: campaign finance reform is ultimately about censoring speech. Go read the whole article.

    This year’s Federalist Society National Lawyers Convention included a great panel on anonymity and political speech featuring friend-of-IJ Brad Smith.  The video, below, is well worth watching:


    The First Amendment means that government bureaucrats don’t get to play art critic. But in Arlington, Virginia, local zoning officials told Wag More Dogs that its mural depicting happy cartoon dogs, bones and paw prints was an illegal sign because it has “a relationship” with the business. Wag More Dogs has had to cover its cartoon dogs with an ugly tarp for the past three months so that it can stay open.




    But Wag More Dogs’ owner, Kim Houghton, isn’t just rolling over and playing dead. Yesterday, the Institute for Justice filed a lawsuit in federal court on behalf of Kim arguing that government officials can’t force entrepreneurs to choose between their right to speak and their right to earn an honest living.


    Coverage of the case launch can be seen here, here and here. For a short video that explains the case, see below.


    If you haven't seen my colleague Bill Maurer's recent article in the Weekly Standard about "Campaign Finance Myths," it's definitely worth a read—particularly if you want a quick primer on why everything "reformers" are saying about Citizens United is wrong.

    wisconsinLate yesterday the Wisconsin Supreme Court agreed to take a case involving new state campaign finance rules.  We’ve reported on the case before, see here and here, which involves regulations that, among other things, require anyone spending more than $25 on a communication that mentions a candidate to register with the government.


    This is great sign that the Wisconsin Supreme Court is taking seriously the threat that disclosure laws present to ordinary citizens.  The Institute for Justice filed an amicus brief in support of the court taking the case, arguing that Wisconsin’s new rules present a major threat to citizen speech.


    The case is set for oral argument on March 9, 2011.  We will continue following the case closely.

    All last month our friends at the Cato Institute held an on-line symposium on campaign finance reform and disclosure, entitled “Following the Money: The law and Ethics of Campaign Finance Disclosure.”  The contributors are UC Berkley Professor Bruce Cain, Electionlawblog’s Professor Rick Hasen, Cato’s own John Samples, and Common Cause’s Nikki Willoughby.  Check out the interesting debate.

    Professor Rick Hasen has started an interesting debate on this subject with a recent blog post on Summary Judgments, the Los Angeles Faculty Blog of the Loyola Law School. He believes that the U.S. Supreme Court’s decision to hear IJ’s and the Goldwater Institute’s challenges to the matching funds provisions of Arizona’s “Clean Elections” law will result in, as the title of his post says, “An Effective End to Public Financing.” Professor Hasen graciously linked to IJ’s response to his post over at Election Law Blog. Check it out.

    This morning, the U.S. Supreme Court granted cert in IJ's challenge to Arizona's "Clean Elections" system, which attempts to suppress the speech of privately financed candidates and independent groups through the use of "matching funds." A copy of IJ's press release is here, and an early news story on the cert grant is here. We'll have more on this case, as well as the general topic of government-funded elections, as it progresses.


    Over at Cato@Liberty, Roger Pilon’s takedown of the NYT editorial board’s latest broadside against Citizens United is definitely worth a read.

    As my colleague Paul Sherman notes, we won an important victory for free speech last week when the Tenth U.S. Circuit Court of Appeals ruled in Sampson v. Buescher that Colorado’s disclosure laws for grassroots groups that speak out about ballot issues violated the First Amendment.


    The case started when our clients, six neighbors who opposed the annexation of their neighborhood into the nearby town of Parker, Colo., were sued by the chief proponent of annexation for failing to register as an issue committee and disclose all of their activities to the state. Colorado allows not only the Secretary of State but also private citizens to enforce the campaign finance laws, so anyone can file an action against someone they claim has violated the laws and drag them into court. The rationale is that the Secretary of State might not enforce the laws against political allies, so the drafters of the law thought the solution was to give enforcement authority directly to “the people.”


    Unfortunately, “the people” can be just as mendacious as anyone else. Consider the reaction to the Tenth Circuit’s decision of one of the people who sued our clients under the campaign finance laws:


    “We did that action because those (annexation opponents) refused to debate us,” said David Hopkins, an annexation proponent who filed the original election complaint in 2006. “The purpose of the law is to get the debate on what the issues are and not just have a group putting out propaganda without accountability.”


    The campaign finance laws are said to serve a number of purposes: They prevent “corruption”; they elevate the debate by requiring speakers to stand by their messages; they prevent the “distorting effects” of large expenditures of money; they equalize voices; they promote democracy.


    But when you strip away all the good government platitudes, the motivation behind campaign finance laws often amounts to little more than the anger and frustration expressed in a comment such as Mr. Hopkins’s: They refused to debate us, so we sued them.


    Consider the congressional debates over McCain-Feingold. Despite all the anti-corruption rhetoric that led to its passage, the members who supported it were far more concerned about the alleged evils of last-minute attack ads. Here’s a representative quote from Senator McCain himself:


    If you cut off the soft money, you’re going to see a lot less [attack advertising]. Prohibit unions and corporations [from spending money on independent ads] and you will see a lot less of that. If you demand full disclosure for those that pay for those ads, you’re going to see a lot less of that . . . .


    And all we heard during the run-up to the recent election was that groups were spending “obscene” amounts of money and “buying elections” with all of their advertising, as though voters are too stupid to make up their own minds.


    If the case had not made clear that groups are entitled not only to spend unlimited funds for independent advocacy but to raise unlimited funds for that purpose as well, is there any question that so-called reform groups would have filed a slew of FEC complaints against anyone who dared to make independent expenditures without becoming a PAC or complying with contribution limits? Indeed, that happened after the 2004 elections, when independent groups like the Swift Boat Vets and spent huge sums on electoral advocacy.


    The fundamental purpose of campaign finance laws has been nowhere better expressed than by Yale law professor Owen Fiss in his book The Irony of Free Speech. As Fiss put it, the government may “have to silence the voices of some in order to hear the voices of . . . others. Sometimes there is simply no other way.”


    It shouldn’t surprise anyone that when we open up free speech to regulation, those who enforce the laws will impose their own ideas of what is “fair” on the process. Indeed, if “fairness” is the purpose, why isn’t suing someone because they won’t debate you entirely appropriate?


    There are many, many things wrong with campaign finance laws. We can now add to the list that they turn campaigns into a sort of Hobbesian war of all against all, as political opponents decide to play out their campaigns in courts of law, rather than in the court of public opinion.


    The Framers gave us the First Amendment in part to prevent all this. Perhaps it’s time to take it seriously.



    In an editorial about a recent Supreme Court argument, the New York Times argues:


    If the Supreme Court renders justice in a case it heard this month, Schwarzenegger v. Entertainment Merchants Association, it will strike down a California law barring the sale or rental of violent video games to anyone under 18. That would end a violation of free expression—but not prevent the states from finding other ways to support parents who do not want their children to play violent games.


    In other words, the corporations that produce and sell these games have a First Amendment right to do so.  If the state is concerned about the effect this speech has on the community, it must find a way to address those concerns that does not interfere with these rights.


    Now let’s rewind to January 21, 2010, when the Times’ editorial page blasted the Supreme Court’s landmark ruling in Citizens United v. FEC.  As the Times described Justice Kennedy’s opinion:


    The majority is deeply wrong on the law. Most wrongheaded of all is its insistence that corporations are just like people and entitled to the same First Amendment rights. It is an odd claim since companies are creations of the state that exist to make money. They are given special privileges, including different tax rates, to do just that.


    For those of us who believe that the First Amendment was designed to protect all speech—and to protect important, influential speech most especially—this contradiction is baffling.  Whatever one’s view on the Schwarzenegger case, it is laughable to suggest that selling video games to children that “graphically depict mutilation, torture, rape and murder” is an act entitled to greater First Amendment protection than distributing political documentaries like the one at issue in Citizens United.  This contradiction is, nonetheless, totally of a piece with the Times’ general view of the First Amendment, which allows political documentaries to be banned while affording the greatest protection to the least meaningful, most inarticulate speech.

    Now that most of the dust has settled (although in some places it is still plenty dusty), we can assess how well the First Amendment fared in this last election.


    castingballotProbably the biggest news was that Russ Feingold, one of the authors of the largest legislative assaults on the First Amendment since the Alien and Sedition Acts, lost his re-election bid. (His partner in the eponymous McCain-Feingold bill, John McCain, on the other hand, easily won re-election.) Feingold was recently arguing for further restrictions on the First Amendment, urging his colleagues—in a stunning display of disregard for the Constitution and separation of powers—to further restrict free speech regardless of any “fear of the [Supreme] Court” and whether it might strike down their work as unconstitutional. This single-mindedness persisted despite the fact that McCain-Feingold was such a colossal failure in even what it was intended to do. For those that believe that the First Amendment actually means what it says, it was good news indeed that a leading voice of the “more-always-needs-to-be-done” school of campaign finance “reform” will no longer be leading further attacks on our fundamental constitutional rights (at least for the moment).


    Free speech advocates could also rejoice that Rep. Alan Grayson, the Florida Congressman who called Citizens United “the worst Supreme Court decision since the Dred Scott case,” was involuntarily retired. Perhaps Floridians were tired of being represented by a politician who was so intemperate, insensitive, and ideologically blinkered that he could not tell the difference between a decision upholding the plain language of the First Amendment and a decision returning a human being to brutal subjugation and condemning countless African Americans to the horrors of slavery.


    Turning to taxpayer-financed elections, majorities voted against ballot measures to preserve two “clean elections” systems. In Portland, the Rose City’s scandal-rocked system of taxpayer-financing for politicians was narrowly rejected by the voters. Portland is one of the most progressive cities in America and its voters like to say “yes” to government spending. When you add California voters’ refusal to pass two public financing initiatives in recent years, one of which was overwhelmingly rejected by a 3-to-1 margin, these results demonstrate that even in very left-leaning jurisdictions, taxpayer-financed elections are simply not that popular.


    In Florida, while a solid majority voted to scrap Florida’s system of public financing for certain state races, it was not enough to meet the 60 percent requirement needed to amend the state constitution. Regardless, the “matching” or “rescue” funds provision of the system had already been enjoined by the Eleventh Circuit.  


    Finally, no discussion of the intersection of free speech and electoral politics would be complete without mentioning Congressman Peter DeFazio (D-Ore). Angered that people were spending money to defeat him, he became nationally known for yelling through a mail slot at people who had the gall to exercise their First Amendment rights. DeFazio had also recently begun talking about how it might be a good idea for Congress to impeach Chief Justice Roberts for upholding First Amendment rights. DeFazio won re-election again. However, perhaps this is not a bad result for the First Amendment. DeFazio’s efforts and his reaction to being criticized demonstrates that, while much of the rhetoric from pro-regulation politicians focuses on battling corruption and cleaning up the system, the restrictions they seek are often just a means for them to silence those who oppose them—an important lesson only someone like DeFazio can really teach.

    Great detailed piece on Citizens United and the movement to legalize political speech by Jacob Sullum over at Reason.  Check it out.

    supremecourtAs Make No Law blog readers know, the Institute for Justice is engaged in a nationwide Citizen Speech Campaign to free grassroots political activists from government-mandated burdens on free speech in the form of campaign finance laws.  Yesterday, that campaign scored a major victory.


    The Tenth U.S. Circuit Court of Appeals unanimous ruled (.pdf) in favor of IJ’s clients in Sampson v. Buescher.  The case involved Colorado resident Karen Sampson and five of her neighbors, who were sued for opposing the annexation of their neighborhood without first registering with the government and complying with burdensome disclosure laws.


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    MoneyThe Washington Post reported yesterday that the world was not flat. Actually, the Post reported something just as obvious: Money doesn’t buy elections.


    The Post, using information from the Center for Responsive Politics, reports that “out of 58 candidates who used $500,000 or more of their money on federal races in 2010, fewer than one in five won. Eight of the top 10 self-funders this cycle lost . . . .”


    In a follow-up piece, the Post admitted that this is no surprise: “The lesson learned Tuesday is one we seem to relearn every election cycle. Money only buys candidates the ability to get their message out. If that message neither resonates with nor is to the liking of voters, they will not vote for you.” Of course, none of this is news to Make No Law readers. Robert Frommer and Steve Simpson have already covered this ground.



    Say this much for Professor Randy Salzman’s call for a ban on 30 and 60-second political ads in the Christian Science Monitor: at least he’s honest.


    censoredWe’ve made the point many times before that campaign finance laws will inevitably lead to censorship. If people cannot support their favored candidates in one way, they will find others. Ban large direct contributions to candidates, and supporters will run radio and TV ads. Ban those, and they will switch to newspaper ads or to the Internet. Ban those and they will use billboards and yard signs. The only way to control money in campaigns is to ban or regulate every form of mass communication available.


    And, in fact, this is precisely what happened under campaign finance laws until the regulations reached films and the government suggested that books were next on the chopping block. The Supreme Court blinked, and Citizens United was the result.


    Salzman recognizes that people will inevitably find ways around campaign finance laws, but instead of rejecting the laws, he wants us to reject free speech. According to Salzman, the only way to realize the true purpose of the First Amendment is to ban the “scalding, manipulative speech of emotional political ads.” Salzman proposes a law imposing a minimum time requirement of at least 30 minutes for all broadcast and cable political ads.


    But why would that solve anything? Placing a minimum time limit on ads would simply price some candidates out of the advertising market altogether, which would inevitably lead to calls for limits on what the networks could charge for airtime or restrictions on the amount of ads well-funded candidates could run. And the increased cost of advertising would put a high premium on candidates appearing on news broadcasts and talk shows, which would likely necessitate some sort of fairness doctrine, lest some candidates get more airtime than others. And what happens when candidates start spending more on print and Internet advertising? Are the professor Salzmans of the world going to be satisfied with a ban on only short radio and tv ads?


    Ultimately, the problem with campaign finance laws is not that they don’t ban enough speech, but that they regulate speech at all. Once you start down the road to censorship, there’s no logical stopping point.


    That’s why we have a First Amendment—to stop regulation of speech before it starts. Contrary to Professor Salzman, the premise underlying the First Amendment is not that speech will lead to any particular result—whether we conceive that as perfect competition in the marketplace of ideas, enlightened democracy or more civil political campaigns. The premise of the First Amendment is that freedom of speech is a right and that individuals get to choose for themselves what to say, hear and think. Or, as the Court put it in Citizens United: “The First Amendment confirms the freedom to think for ourselves.”


    You know there is something too complex about campaign finance regulations when someone as smart as political entrepreneur Diana Hsieh runs into trouble in her dealings with the law.


    nospeech_fullsizeHsieh details some of the difficulties of complying with Colorado’s campaign finance laws for ballot issue committees on her blog. Hsieh, who is featured in our most recent study of campaign finance laws, is a Colorado activist and blogger who got wrapped up in campaign finance red tape when she decided to speak out against Colorado’s Amendment 62. Hsieh co-wrote a policy paper arguing against passage of the Amendment, which she and her co-author Ari Armstrong funded with a pledge drive on Hsieh’s blog. But because they intended to raise over $200 to fund their effort, they were defined as an “issue committee” under Colorado’s campaign finance laws and had to register with the state and comply with complex and onerous administrative and reporting regulations. As Diana points out on her blog, while the regulations can often look straightforward, the devil is often in the details: “[T]he laws are just not clear. As a result, I’ve tried to do whatever seemed like the safest option open to me. I don’t have an army of lawyers to guide me... and even if I did, that might not be enough! With every wrong move, I risk $50 per day in fines.”


    Diana Hsieh is not the only one who’s had problems with the laws. In 2006, a group of neighbors outside of Denver spoke out against the annexation of their neighborhood into a nearby town. They put up No Annexation lawn signs, sent around post cards, and spoke to neighbors and were promptly sued by the proponents of annexation for failing to register and comply with the issue committee regulations. IJ now represents them in a First Amendment challenge to the laws. The case is currently before the U.S. Court of Appeals for the Tenth Circuit.


    IJ commissioned an economist from the University of Missouri to study the burden of these regulations on free speech a few years ago. He created an experiment in which groups of people were given a simple fact pattern and asked to fill out the forms for issue committees. Out of 255 participants, not a single participant filled out the forms correctly and the average score was about 40 percent correct. In the real world, each of these individuals would have faced fines and harassment from their political opponents.  The study is available here.


    But, as Diana points out, even if the regulations were not burdensome they would still “be a blatant violation of every person’s free speech rights. People should not have to register with the government to speak their minds. They should not have to register with the government to donate money so that others can speak for them.”

    With all of the complaining about “undisclosed” money being spent on campaign ads, it’s worth remembering that freedom of speech is a right, not a privilege that must be justified to everyone who does not like what we say.

    Read all about it in her new column in Fortune.

    Over at Reason Katherine Mangu-Ward takes a look at “Secret Money from God Knows Where” and notes that perhaps the biggest upside to come from the increased independent money (read: “speech”) in this year’s election is increased competition against the established power structures of the two major parties:


    One upshot of increased spending by interest groups could be a reduction in the power major parties hold over candidates. Normally, when a question of party discipline looms in the House or Senate, savvy incumbents allowed themselves to be whipped into shape, afraid of getting checkbook slapped by party bosses. According to The Washington Post, a third of all independent expenditures reported to the Federal Election Commission this year comes from the two major parties, compared to 54 percent in 2008 and 80 percent in previous cycles.


    More evidence that although many leaders of the political establishment decry Citizens United as taking power from the people, their real concern is that it's taking power from them.

    So complicated that even the government doesn’t understand them. guy-wrapped-in-red-tape


    As remarkable as that conclusion may sound, my colleague Robert Frommer has a piece in the Denver Post demonstrating exactly that.


    The piece tells the story of “Clear the Bench,” an independent grassroots organization that came together to oppose the retention of four Colorado Supreme Court justices.  The group tried in good faith to comply with the campaign finance laws, and even asked the agency charged with enforcing those laws what it was supposed to do.  Nevertheless, when Clear the Bench spoke out, they found themselves hauled into court by their political opponents, charged with failing to register as the proper kind of political committee.  Ultimately, after a year and a half of litigation, a court agreed, and gave Clear the Bench 20 days to register as the correct kind of committee.


    The problem?  As Frommer notes:


    The court’s ruling was wrong.


    Clear the Bench wants to independently advocate against the retention of certain Colorado Supreme Court justices. Under Colorado law, the group should be an independent expenditure committee, which, unlike a standard political committee, does not have contribution limits. But no one involved in this dispute—not Clear the Bench, its accusers, or even Colorado campaign finance officials or the special administrative court—understood this.


    The fact that something like this could happen in any area of the law is frightening enough.  But something is particularly wrong when the laws regulating political speech are so complicated that everyone involved in a legal dispute—lawyers, elections officials, and judges—fails to understand them.


    Proponents of campaign finance laws are generally quick to denigrate or dismiss as alarmist arguments that the regulation of political speech regarding elections will lead the country down a slippery slope in which the government will eventually seek to control all—or at least the vast majority of—political speech.


    As ESPN’s Lee Corso might respond to these denials of the existence of such a slippery slope, “Not so fast, my friend!”



    2:14 PM

    On Monday, my colleague Paul Sherman argued a motion for temporary injunction in a case we filed in Florida recently challenging PAC requirements that are imposed on groups that want to join together to speak out for and against ballot initiatives. Under the law, when two or more people join together to spend more than $500 supporting or opposing a ballot issue, they must register with the state as a PAC, appoint a treasurer, open a separate bank account, and file regular reports of all their activities, among other requirements. In Citizens United, the U.S. Supreme Court held that these requirements were too burdensome for corporations speaking out in candidate elections. Our argument is that they must therefore be too burdensome when applied to small citizens groups that want to speak out about ballot issues.


    Obviously skeptical of our argument, at one point the judge asked Paul this question: If “[a] person from Montana who wants to come here and spend $20 million and buy an election and does not want to reveal his funding” under your argument “he can do that, too, right?” This is a common view. We need campaign finance laws to prevent people from “buying elections.”


    Of course, just because a view is common does not necessarily make it correct.


    In fact, as a recent column by David Brooks makes clear, the notion that campaign spending “buys” elections is obviously wrong. As Brooks points out, even though the Democrats have outspent the Republicans in a number of close races, they lag behind in the polls. The same thing has happened to the Republicans in the past. And Brooks lists a number of candidates—including Joe Miller, who beat Lisa Murkowski, and Christine O’Donnell, who beat Mike Castle—for whom money obviously was not the deciding factor. There are many more examples, including Jon Corzine, Michael Huffington and Ross Perot, all of whom spent huge sums of money and lost. The same applies to ballot issues. Last summer, for example, proponents of a California initiative that would have enacted public campaign financing outspent opponents 2 to 1 and still lost.


    None of this is surprising. Campaign spending doesn’t buy elections any more than commercial advertising buys market share. If it did, we’d all be driving American cars. The movies and television shows with the biggest ad budgets would be the most popular.


    Money buys speech.  It buys exposure.  But it can’t buy elections, because the voters are ultimately the ones making the decision.  Yet that’s exactly what the money-buys-elections argument denies.  That argument presumes that voters are empty vessels, waiting to be filled with whatever thoughts the candidates and “special interests” want to pour into their heads.


    The First Amendment is based on the opposite premise. As the Supreme Court said in Citizens United, “The First Amendment confirms the freedom to think for ourselves.” That some people may spend lots of money trying to convince us to agree with them does not make us any less free to make up our own minds.

    montanaWe at (and at IJ in general) often criticize the courts for not carrying out their constitutional role as a check on the other branches of government, so it’s nice every once in a while to be able to cite an example of a court doing what it is supposed to.  That happened in Citizens United, and it just happened yesterday in a state trial court in Helena, Montana.


    The case involved a challenge to Montana’s ban on corporations speaking about candidates for state office, a similar ban to the one at issue in Citizens United.  The corporate plaintiffs argued that under Citizens United and the First Amendment they had the right to spend money from their general treasuries directly on speech.  Just as the federal government did before the Supreme Court, the state argued that an alternative to banning corporations from engaging in independent spending would be to allow them to spend money on their own ads, but to make them do so through heavily regulated PACs.  As we discussed recently, a court in Minnesota accepted this approach in another case, and, contrary to Citizens United, ended up requiring corporations to speak through PACs.


    Happily, the Montana court rejected this approach and took the Supreme Court’s discussion of PACs in Citizens United seriously.  Quoting the Court’s statement that “[a] PAC is a separate association from the corporation” the court ruled that subjecting a corporation to PAC burdens violates the First Amendment.


    Citizens United was not a complicated case, and yet already some courts have misapplied it.  It’s nice to see that some courts are getting it right, but the battle over free speech during elections is far from over.

    We’ve pointed out before that if modern disclosure laws had existed 200 years ago, Madison, Hamilton and Jay would not have been able to publish The Federalist Papers without filling out a lot of forms first. The good folks at Reason have put together a faux campaign ad making the same point.


    This is all very amusing, of course, but few people realize just how strong the case for applying disclosure laws to The Federalist Papers would have been. Disclosure laws apply to issue elections, and whether the new constitution should be ratified was undoubtedly the most important issue of the day. It was also highly controversial, with each side making heated accusations about the other. For example, Amos Singletary of Massachusetts claimed during his state’s ratification debate that the constitution was supported by “lawyers and men of learning, and moneyed men that talk so finely, and gloss over matters so smoothly” who want to “get into Congress themselves” and “ be managers of this Constitution, and get all the money into their own hands.”


    Alexander Hamilton, who came up with the idea for The Federalist Papers, chose “Publius” as his pseudonym after Publius Valerius, the celebrated founder of republican government in Rome. In fact, the Federalists even co-opted on of their opponents’ best arguments in taking on the label “Federalists,” which, before they adopted it, typically referred to someone who supported state sovereignty and opposed centralization. You can read about these and other interesting facts in Isaac Kramnick’s excellent introduction to the 1987 Penguin edition of The Federalist Papers.


    So let’s see, a group of elite political insiders operating under a benign-sounding name wrap themselves in the banner of one of their opponents’ best arguments against them and then support the adoption of a law that will profoundly affect the future course of their government. Sounds like of a campaign finance regulator’s nightmare. And yet, even without disclosure laws and government oversight, the people of the time were able to figure out what the arguments were and to choose accordingly. Imagine that. Maybe there’s a lesson in there for our modern age.

    Over at the Center for Competitive Politics blog, Brad Smith has a great post on how SpeechNow Groups are making some races more competitive by helping challengers overcome the natural advantages of incumbents.  Go read it right now.

    Robert_GibbsWhite House Press Secretary Robert Gibbs said something quite extraordinary the other day.  In defending President Obama’s attacks on the U.S. Chamber of Commerce’s temerity to actually engage in political speech Gibbs remarked:

    "There's no reason to back off," he said. "If there are organizations raising tens of millions of dollars who won't tell us who their donors are, my guess is they're not telling us for a reason -- because they have something to hide."


    Gibbs’s comments come in the context of the White House’s support for additional disclosure requirements, such as the DISCLOSE Act that we have discussed on this blog many times.  Thus, Gibbs is arguing that groups that engage in public debate about elections should be legally required to tell us who they get their money from, and if they don’t it must be evidence of something sinister.


    I wonder if Gibbs thinks the NAACP was such a sinister group in the 1950s when it fought the State of Alabama over its membership lists.  In a landmark decision the Supreme Court unanimously concluded that the state’s attempt to compel the NAACP to produce the lists violated the right to freedom of association.  It said “Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.”


    The NAACP’s cause of racial equality was, of course, a “dissident belief” in 1950s Alabama.  Many other beliefs are often “dissident,” such as opposition to the invasion of Afghanistan after the 9/11 attacks, opposition to the minimum wage, and defending the right to burn the American flag.  Beliefs opposed to each other can even be dissident at the same time, such as groups that are for/against same sex marriage.  Perhaps the most obvious example of a group that might fear retribution is one that speaks out for or against candidates for office, since candidates can often make life miserable for those who opposed them during the election.  Groups that advocate all of these views have an interest in protecting the anonymity of their members and donors.  This reflects a long tradition of protections of anonymous speech that extends back to, and before, the anonymously published Federalist Papers.


    The point is, groups that spend money on speech often do have “something to hide.”  They want to protect themselves and their associates from the powerful people they’ve criticized—people like Robert Gibbs and his boss.  Certainly, everyone has the right to criticize groups with which they do not agree.  That’s a freedom the First Amendment guarantees just as much as the freedom to speak anonymously.  But no one has the right to use the government to force others to disclose their members or funding sources so they can attack and try to intimidate them into silence.  As the Supreme Court has said, anonymity “exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation - and their ideas from suppression.”


    People like Gibbs are free to discount speech because it is anonymous or its funding sources are kept private, just as others are free to ignore that issue entirely and focus on the issues and the arguments made.  As the Supreme Court made clear in Citizens United, the decision that lead to this battle, “The First Amendment confirms the freedom to think for ourselves.”  If Gibbs and his boss had more confidence in the ability of Americans to do that, perhaps they would turn their attention to more pressing issues.


    Image Source: Randy

    In the spirit of Citizen Speech month, is proud to present story about a political entrepreneur featured in the Institute's recent Keep Out report:keep-out-report-1


    Diana Hsieh was a blogger when few people knew what the term meant. A passionate advocate for individual rights, she launched her now-popular blog Noodlefood in 2002 while working as a programmer as a way to get herself to write regularly on political and philosophical issues. Today, Diana presides over a mini-empire of online activism including blogs, discussion groups and even a small nonprofit. A recent Ph.D. in philosophy, Hsieh regularly speaks at philosophy conferences, writes articles and podcasts on various subjects—and still manages to find time to care for a small farm’s worth of dogs, cats and horses at her home in Sedalia, Colorado.


    "Although I’m not a political junkie, I just can’t bear to remain silent on some issues," said Hsieh.


    If you follow campaign finance, you’ve undoubtedly heard of the latest trumped-up non-scandal involving the U.S. Chamber of Commerce.  President Obama and others have accused the Chamber of using money from foreign affiliates to fund ads attacking Democratic candidates.


    As both PolitiFact and report, there is no evidence to support these charges.  But apart from the veracity of the charges, this latest round of campaign finance hysteria raises an important question:  Why should we care if foreign money is paying for political ads?


    On Monday, the Washington Post ran an article linking recent increases in anonymous electoral spending to the Supreme Court’s recent ruling in Citizens United v. FEC.  But as I explain in a letter to the editor of the Post, Citizens United has little to do with these increases:


    Nonprofit corporations have been allowed to spend money in elections since 1986, and they had to disclose only contributions that were “earmarked” for political advertising. The only thing Citizens United changed: Corporations and unions are now allowed to give money to these nonprofits. But this is a little change, because corporations and unions were already permitted to anonymously fund issue ads discussing political candidates.


    Those looking for an explanation for the increased spending on this election should focus on congressional unpopularity, not Citizens United.


    But you don’t have to take our word for it.  Over at Slate, political blogger Christopher Beam has reached essentially the same conclusion.

    FeingoldSenator Russ Feingold, co-sponsor of the Bipartisan Censorship Act of 2002 (otherwise known as the Bipartisan Campaign Finance Reform Act of 2002 or “McCain-Feingold”), has publically stated that he does not want his party’s senatorial campaign committee to pay for TV ads on his behalf, asserting "That's frankly not who I am. I don't want to win that way."


    Well, great.  That’s his choice to say “Please don’t speak out on my behalf,” but it’s also his party’s choice whether to run their own ads or not.  It is also the choice of any other group to speak out about Feingold’s senate race.  That’s kind of how the First Amendment is supposed to work.  It gives all of us—not just politicians who are up for reelection— choices about whether to speak, when to speak, who to speak to and what we speak about.


    Sadly, that’s not a principle the Senator embraced when he chose to sponsor and vote for legislation that placed a whole host of limits on those who want to exercise their right of free speech.  If he had taken the words of the First Amendment seriously, he would have realized that’s the one choice the First Amendment does not allow him to make.


    Yesterday, the Milwaukee Journal Sentinel [article] reported that Rice Lake Mayor Romaine R. Quinn is scheduled to appear in court on Oct. 27 for accepting a $1,609 campaign contribution, which vastly exceeded the legal limit of $250.


    But Mayor Quinn, who is only 20 years old, didn’t get this contribution from some shady developer or local businessman. He got it from his mom, Penny Hanson.


    No, we aren’t making this up.


    It turns out that neither the Mayor nor his mom knew about the $250 limit. Although he doesn’t face any criminal liability, Mayor Quinn will probably have to pay a sizable fine.


    Campaign finance laws are unconstitutional and counterproductive, but oftentimes that is obscured by their sheer absurdity. Who in the world would think that a candidate might be corrupted by his own mother? People have issues with their parents on occasion, but they typically don’t involve influence peddling. Clean your room; wear clean underwear; choose a nice girl to settle down with—perhaps. Here’s $1,600, now give me that contract for garbage collection—not likely.


    Unfortunately, courts typically don’t recognize a "this-is-idiotic" defense. Even when courts do dismiss these kinds of complaints, it’s after the accused is put through the proverbial ringer. That’s a great reason to oppose campaign finance laws: They do nothing to clean up politics, but quite a lot to scare Americans out of speaking. And that’s why we at the Institute for Justice have launched our nationwide Citizen Speech campaign.


    Image Source: Misterbisson

    As longtime readers of this blog may remember, the U.S. Supreme Court last Term decided Doe v. Reed, which asked whether Washington State could release the names and addresses of those who signed a controversial referendum petition. Check out IJ Senior Attorney Steve Simpson talking at Cato’s Constitution Day about what the Court did (and didn’t do) in Doe:


    Tom Bowden of Voices for Reason notes a fascinating discovery about the Declaration of Independence. Early in the original draft, Thomas Jefferson changed a word to “citizens.” But because he scribbled out the original word, no one could tell what he had written until recently. Using new technology, however, scholars have identified the word: “subjects.” As Tom says, “on the brink of revolution, here was Jefferson, eradicating an important vestige of the idea that government is the master and individuals are the loyal servants.”


    It seems entirely fitting to note this discovery as we kick off Citizen Speech Month. Citizens are equal before the law—equal to each other, and, importantly, to their governing officials. Subjects ask permission to speak. Citizens do not.


    One of my favorite lines from the Declaration of Independence is in the bill of particulars lodged against King George: “He has erected a Multitude of new Offices, and sent hither Swarms of Officers to harass our People, and eat out their Substance.” I can’t think of a better description for all the campaign finance bureaucrats and the morass of red tape they impose on citizens who wish to speak out about their elected officials.


    Enjoy the next month leading up to the election as a citizen, not a subject. Speak early, and speak often.



    When Hal Heiner decided to run for mayor of Louisville, Ky., patent attorney Theresa Camoriano knew it was time to get serious about local politics.  Theresa’s interest in politics had been growing for years, spurred on by both several run-ins with local bureaucrats and a general sense of frustration that government officials were not responsive to the citizens for whom they work.


    In her spare time, this budding political entrepreneur took her first foray into activism by publishing The Jefferson Review, an online newsletter critiquing government overreach.  Encouraged by her growing readership, Theresa’s desire to make her voice heard only intensified.


    camorianoSo Heiner's candidacy was welcome news:  Here was someone running for  office who shared Theresa’s views on the appropriate role of government and had a track record on city council to back it up.  Theresa volunteered for Heiner’s campaign, handing out bumper stickers and flyers, but she wanted to do more.  She wanted to tell voters about Heiner’s humility, trustworthiness and strength of character—messages not part of his official campaign, but things she knew to be true from years of knowing him.


    To spread this message, Theresa and other Heiner supporters wanted to pool their money to buy radio ads.  But under Kentucky’s campaign finance laws, like those of most states, this kind of political speech is illegal—unless they jump through a maze of legal hoops.




    As part of its Citizen Speech Campaign,the Institute for Justice is declaring October Citizen Speech Month. Throughout the month, IJ will feature the stories of political entrepreneurs who have been stymied by government regulation of political speech under the guise of so called “campaign finance” laws. 


    Today’s post features the story of Louisville patent attorney and budding political entrepreneur Theresa Camoriano.

    Legendary First Amendment lawyer Floyd Abrams has written a teriffic article for the Yale Law Journal defending the Citizens United decision. Abrams rightly criticizes “the willingness of so many not even to acknowledge, let alone weigh, the powerful First Amendment interests” at issue in the case. As he says,


    But that was the tack taken by too many commentators who focused exclusively on the potential (but necessarily speculative) political impact of the ruling and whether the Court was guilty of unacceptable judicial activism. Yet for all the angst about the Citizens United ruling and all the denunciations of it, the ruling is based on the most firmly established and least controversial First Amendment principles. So for me, the truly disturbing visage of the case is not that five members of the Court gave such weight to the First Amendment that some long-standing bans on corporate and union participation in the nation’s electoral process fell; it was that four members of the Court and many of its most distinguished and powerful observers serenely acquiesced in the criminalization of a documentary urging Americans not to elect as President a leading candidate for that position.


    Abrams is, of course, exactly right. Citizens United was firmly based on basic First Amendment principles. For anyone who truly values freedom of speech—and who understands what the “freedom” part actually means—the decision should not have been controversial at all. That it was one of the most controversial decisions in years is a measure, not of judicial activism or a pro-corporate, conservative Supreme Court, but of how far a large portion of this country’s intellectual establishment has strayed from the principles of the founding generation. The dirty little secret of a large number of opinion leaders in this country—not only politicians, but academics and even journalists—is that they support censorship as long as it is directed at ideas and people or groups they despise. Fortunately, I think more and more people are starting to understand the importance of Citizens United and why the Court did the right thing.

    I have an op-ed in the Tampa Tribune today about IJ's challenge to Florida's campaign finance laws, which place unconstitutional burdens on groups that independently advocate the passage or defeat of ballot issues.  Here's an excerpt:



    “Hey Bob, have you been reading about Amendment 4?”


    “I sure have, Susan. I think it’s awful.”


    “Me, too. We should do something about it.”


    “How about a full-page ad in the Tribune? We could split the cost.”


    “That’s a great idea. Let’s keep it simple: ‘On Nov. 2nd, Vote No on Amendment 4.’”


    Sounds simple enough, doesn’t it? It’s the sort of thing Americans do all the time when they’re mad about a candidate or ballot issue. Indeed, it’s the sort of thing James Madison, Alexander Hamilton and John Jay did when they anonymously published the Federalist Papers in support of ratifying the Constitution.


    But it’s also the sort of thing that’s illegal in the state of Florida.


    If Bob and Susan carry out their plan, they will have broken at least half a dozen state laws. Their political speech has landed them in the minefield of “campaign finance” law, where exercising basic First Amendment rights can lead to fines or even jail time.


    The whole thing is available here.


    Image source: hyku

    In the marketplace for goods and services, entrepreneurs are engines for innovation and change. Likewise, in the political arena, political entrepreneurs bring new ideas and voices to public debate and provide outside competition that keeps the political establishment on its toes.


    As part of the Institute for Justice’s new Citizen Speech Campaign, we released a report by campaign finance expert Jeffrey Milyo that explains the value of political entrepreneurs to the vibrancy of American democracy—and shows how campaign finance laws tell them to “keep out.”


    Milyo points to the civil rights movement of the 1960s and today’s Tea Party movement as classic examples of political entrepreneurs challenging the status quo. IJ’s Robert Frommer pointed to another example when he highlighted the growth of “SpeechNow Groups” following the model created by political entrepreneur David Keating, and yet another in a group of Florida citizens who want to speak up about a constitutional amendment on the ballot.


    Yet campaign finance laws in all 50 states erect barriers to entry for such political entrepreneurs, just as occupational licensing laws keep upstarts from competing with established interests in the marketplace.


    In America, the only thing you should need to talk about politics is an opinion. But unfortunately far too many states view freedom of speech not as a right, but a privilege that they can regulate, license and control. Today, the Institute for Justice has launched a nationwide Citizen Speech Campaign that will vindicate the First Amendment rights of all Americans through strategic research, outreach and litigation.


    Watch and Share IJ's New Campaign Finance Video
    "Camp Politics"


    One state that is in desperate need of help is Florida. Unfortunately, residents of the Sunshine State “enjoy” some of the worst campaign finance laws in the nation. For instance, whenever two or more people join together to spend money speaking out about a ballot issue, they must first register with the government and comply with complex organizational, administrative, and reporting requirements under the threat of fines and even possible jail time. These laws in effect turn politics into an insiders’ game.


    No one should have to suffer these burdens in order to speak. After all, advocating for or against a ballot issue is core political speech that lies at the heart of the First Amendment. To vindicate this right, the Institute for Justice has brought a federal lawsuit on behalf of Nathan Worley, Pat Wayman, John Scolaro and Robin Stublen, four members of a Tampa-area political group who want to run radio ads against a land-use measure that is on the November ballot. Florida’s campaign finance laws, though, say that as soon as they raise $500, they must jump through government-created hoops in order to speak.



    10:02 PM

    While Senate Republicans have successfully put a stop to DISCLOSE for the time being, the Fair Electiapprovedons Now Act (FENA) continues to move forward in the House. This past Thursday, the Committee on House Administration voted to send FENA to the floor. One Democrat, Artur Davis, voted against it. According to sources on the Hill, there has been no decision yet on when or if House leadership will schedule a vote, but proponents are underwriting a substantial ad campaign in favor of the bill.





    A front page article in today’s Washington Post highlights how free speech is on the rise.  Since late July, many new groups from across the ideological spectrum have come together to independently advocate for or against candidates this election season.  By vigorously talking about the issues and candidates they care about the most, these new groups have the potential to reshape the face of American politics. 


    This explosion of activity didn’t just happen randomly, though.  Instead, it was made possible by a group called  David Keating,’s founder and president, set up the group precisely to allow individuals to do what they are now doing—joining together to speak out about candidates.  Federal law prevented that, however, by making the groups PACs and restricting their fundraising.  Under the law, one person could spend as much as he wanted for his own speech, but if he joined with others, they were each limited to $5,000 apiece.  In essence, the law forced people to choose between their constitutional right to speak and their constitutional right to associate. 


    In February 2008, the Institute for Justice and the Center for Competitive Politics sued the federal government on behalf of  More than two years later, prevailed on its claim that the government could not limit the amounts individuals can give to the group to fund its independent speech.  The D.C. Circuit ruled unanimously that independent speech—even speech calling for the election or defeat of candidates—does not pose a threat of corruption and thus cannot be limited.  The victory benefitted not only but groups of all political stripes, which is exactly the reason so many of them have cropped up in recent months. 


    The Post is referring to these groups as “Super PACs,” but that’s a misnomer.  PACs give money to candidates.  “SpeechNow Groups” do not.  They spend their own money on their own speech about candidates, which is one of the primary things the First Amendment was designed to protect.  After the Citizens United decision, many people howled that corporations are not people and should not be permitted to speak.  Well, SpeechNow is “people”—people joining together to exercise their First Amendment rights to speak out and to affect the course of their government.  Because of David Keating and SpeechNow, a ruling that allowed corporations to spend their own money on speech has now been extended to prevent the government from restricting the ability of citizen groups—presumably the very groups that critics of Citizens United want to be able to speak—to pool their funds and amplify their voices.  That’s a huge win for free speech.

    The President is disappointed that the DISCLOSE Act died in the Senate last week.  He said, among other things, that “Wall Street, the insurance lobby, oil companies and other special interests are now one step closer to taking Congress back and returning to the days when lobbyists wrote the laws.”


    Wait just a second. Surely the President isn’t suggesting that we’ve recently been in an age where lobbyists have not been writing legislation. It’s an open secret that they’ve always helped with drafting bills—including legislation that the President has championed, such as reform of the health care and financial industries. The DISCLOSE Act wouldn’t have changed this status quo in the slightest.


    What it would have done instead is make it harder for the vast majority of Americans—including those of us who can’t afford to hire lobbyists—to have a real say in the political process. Unlike lobbyists, they don’t get to air their views to lawmakers on a regular basis. In order to advance the political issues they care about, people have to let their representatives know that they will be held accountable at the ballot box for the positions they have taken on those issues. Doing that requires communicating with as many voters as possible in the most effective manner possible. This can happen only if individuals are free to associate with others and pool their resources so that they will have enough money to run ads in popular media such as radio and television.


    The DISCLOSE Act—by imposing new and burdensome costs on free speech—would have stifled this freedom. Indeed, some of its supporters have all but admitted as much. Because incumbent politicians don’t relish the prospect of lots of ads that hurt their reelection chances, it shouldn’t surprise us that so many of them voted for DISCLOSE.   They’d rather play an insiders’ political game with lobbyists who quietly go about their work than be subject to criticism in a noisy public arena they don’t control.


    Thus, the argument that the DISCLOSE Act would have decreased the power of K Street to the benefit of Main Street isn’t just disingenuous—it’s exactly backwards.


    Image source: wallyg

    Twelve-term U.S. Rep. Peter DeFazio (D-Ore.) was recently criticized in independent political ads funded by a group calling itself Concerned Taxpayers of America.  Rep. DeFazio wanted to know who was behind the ads, and he wasn’t willing to wait until the group filed its quarterly campaign finance report in October to find out.  The Washington Post reports DeFazio as wondering, “Is this a corporation? Is it one very wealthy, right-wing individual? Is it a foreign interest? Is it a drug gang?”


    170817449_bd1745ca45_mSo Rep. DeFazio did what any reasonable incumbent politician would do in that situation—with reporters in tow, he went to the address the group had listed with the Federal Election Commission and started shouting through the mail slot until someone agreed to speak with him.


    No really.


    7:17 PM

    Huffington Post reporter Sam Stein tweets that the DISCLOSE Act fell one vote short of cloture.

    3:06 PM

    Over at, Carter Wood reports that the cloture vote on DISCLOSE will take place this afternoon at 2:15. According to a report last night by Meredith Shiner in Politico, DISCLOSE’s prospects for surviving the vote look grim:


    Senate Majority Leader Harry Reid (D-Nev.) announced through a spokesman that he was bringing the DISCLOSE Act back to the floor on Thursday. But it’s all but assured that he’ll not have the 60 votes necessary to overcome a threatened Republican filibuster, with moderate Republicans showing no signs of flinching in their opposition.


    She adds that voting on DISCLOSE is something that the Senate leadership needed to do in order to kill time before the weekend:


    When the defense authorization bill failed to clear cloture Tuesday, Democrats needed a measure to fill floor time before the weekend, and the DISCLOSE Act was one of the few measures in their legislative arsenal that was quickly available.


    Having failed cloture once, the campaign bill only requires a less strict “motion to recommit” from Reid to call another cloture vote. New legislation likely would need 30 hours after being filed, 30 hours the Senate doesn’t have.


    So even if Democrats know they’re likely short of votes Thursday, the alternative was practically nothing.


    That alternative sounds pretty good to me. Indeed, I could have sworn there was part of the Bill of Rights that talks about how, when presented the opportunity to make laws that would abridge the freedom of speech, Congress should do nothing.

    I can imagine few worse ways to spend a day than watching Senators give speeches on C-SPAN 2, but that’s exactly what Sean Parnell of the Center for Competitive Politics has been doing today. Why has he been subjecting himself to this ordeal? Senators are debating the DISCLOSE Act, which will be up for a vote tomorrow.


    After listening to supporters of the legislation continue to make inaccurate statements both about the contents of the bill and the current state of campaign finance law, he concludes: “To the ever expanding list of reasons to vote against the DISCLOSE Act should now be added the seemingly irrefutable fact that the Senators advocating for it clearly do not understand what they are talking about.”


    Don’t expect this fact to make supporters of campaign finance “reform” any less enthusiastic about giving these same Senators more control over the publics’ First Amendment rights.


    Image source:

    Yesterday, a district court in Minnesota ruled that corporations must become political committees or PACs in order to speak.  The case is called Minnesota Citizens Concerned for Life, Inc. v. Swanson.


    The decisions directly conflicts with Citizens United, but it is particularly relevant to our petition for review in v. FEC.  In, the D.C. circuit ruled that an unincorporated association must become a PAC in order to speak, notwithstanding the Supreme Court’s ruling in Citizens United that corporations cannot be required to become PACs just to spend money on independent ads advocating the election or defeat of candidates.  We’ve asked the Supreme Court to accept that case for review because it conflicts with Citizens United.  Among other things, we pointed out that if the court’s can ignore Citizens United and require unincorporated associations to become PACs, there’s no reason they won’t do the same thing to corporations, thus nullifying an important part of Citizens United.  We hate to say we told you so, but it appears that that has now happened.


    Just to back up a bit and put all this in context, in Citizens United, the Court held that the government cannot ban corporations from paying for independent expenditures—that is, ads advocating the election or defeat of candidates.  But it also held that they can’t be required to set up separate, heavily regulated PACs in order to speak out about political elections.  “PACs,” the Court pointed out, “are burdensome alternatives; they are expensive to administer and subject to extensive regulations.”  The Court then went on to catalog all of the regulations that apply to PACs.  In short, the Court essentially held that the government may not do indirectly what it is forbidden from doing directly.  If it cannot ban spending for speech outright, it also may not so heavily regulate that spending in order to accomplish the same thing.


    In, which involves an unincorporated association that wants to do the same thing as the corporation in Citizens United, the D.C. Circuit struck down fundraising limits on the group because its independent spending, like the independent spending of the corporations at issue in Citizens United, posed no threat of corruption.  But the D.C. Circuit upheld the requirement that the group become a PAC in order to speak.


    We are now seeking review in the Supreme Court.  We’ve argued that the decision conflicts with Citizens United, and that lower courts, following the D.C. Circuit, could even end up requiring corporations to become PACs in order to speak.  The district court in Swanson has now done just that. 


    This is an object lesson on the impact of our incredibly byzantine campaign finance system, not only on speech but also on the courts.  Citizens United is not hard to understand, and yet the courts have already misunderstood it.  That isn’t surprising.  There are so many different rules, regulations and tests in this area, and so many conflicting cases, that it’s tough to know what the law is at any given moment.  Citizens United was a welcome dose of clarity, but to truly protect speech over the long haul, the Court will have to continue to instruct lower courts that free speech must be the rule, not the exception.

    From his excellent article on


    Last week The New York Times reported that “outside groups supporting Republican candidates in House and Senate races across the country have been swamping their Democratic-leaning counterparts on television.” The paper worried that “a relatively small cadre of deep-pocketed donors, unknown to the general public, is shaping the battle for Congress in the early going.”


    The Times said “Democratic officials” believed “corporate interests, newly emboldened by regulatory changes, are trying to “buy the election.” In short, the spending patterns “seem to be a fulfillment of Democrats’ worst fears after the Supreme Court's ruling in the Citizens United case.”


    Except that, as the Times conceded, “it is not clear...whether it is actually an influx of new corporate money unleashed by the Citizens United decision that is driving the spending chasm.” Other factors—“notably, a political environment that favors Republicans”—might be at work. In fact, most of the spending cited in the story was by rich individuals or by groups organized under Section 527 of the Internal Revenue Code, both of which were legal before Citizens United.


    Further undermining the thesis that the decision explains the Republicans' spending edge, the Times noted that “corporations have so far mostly chosen not to take advantage of the Citizens United ruling to directly sponsor campaign ads.” And while they might be “funneling more money into campaigns through some of these independent groups,” corporations “had the right to make such contributions before the ruling.”


    Jacob concludes his piece by reminding us that lots of money in politics isn’t a scary thing: “No matter how shadowy or flush with corporate dollars an interest group is, the only thing Citizens United allowed it to do is speak. Advocacy has no impact unless it persuades people.”


    Well said. As the Supreme Court emphasized in Citizens United, “The First Amendment confirms our right to think for ourselves.” Lots of free speech—including the speech of those who would prefer to remain anonymous—is frightening only if you believe that the public is made up of mindless automatons that are incapable of exercising that right.


    Unfortunately, as we’ve discussed before, that’s the view that is shared by politicians and others who champion the cause of “campaign finance reform.” If they placed the same trust in the public that the Founders did when they crafted the First Amendment, they would be celebrating, rather than demonizing, Citizens United. And they would hope that Citizens United would result in lots more political speech—not just in this election season, but in all those that follow.

    According to this report in the Washington Independent, the Senate will vote on the DISCLOSE Act tomorrow. Contrary to earlier reports, the bill will not be stripped down, but will instead be the same version that the Senate failed to pass last time.


    Stay tuned for further developments.

    We’ve noted before that when government controls our economic affairs, it will inevitably control our speech as well. We’ve seen that tendency in calls to prohibit companies that receive TARP funds from lobbying and speaking out about elections and in the government’s threats against insurance companies that told policyholders they might lose their coverage if ObamaCare passed.


    In Pajamas Media, Paul Hsieh highlights the latest example of this principle at work. Kathleen Sebelius, the Secretary of Health and Human Services, recently threatened to ban certain insurance companies from participating in the insurance exchanges that ObamaCare will create. Their crime? The companies told policyholders that recent rate hikes were due to increased costs associated with the new health care law.


    Unfortunately, these are not just random examples of bad bureaucrats in action. Economic regulation—especially the extensive regulation we face today—must utlimately lead to restrictions on speech. The FEC and FCC obviously regulate speech, but so does the SEC, the CFTC, the FTC, and a host of other state and federal regulatory agencies. It’s inevitable, because in order to speak, we must act, we must enter into economic transactions, we must spend money, use computers, printing presses, broadcast stations and take innumerable other steps to make ourselves heard. If government regulates our economic affairs—as it does—it is only a matter of time before it will regulate our speech as well.


    Indeed, just last week, IJ filed a case that illustrates the connection between economic regulation and speech regulation. Washington, D.C., as well as New York City, New Orleans, and a few other cities, requires a license to operate a tour guide company. Licensees must take a test to ensure that they are sufficiently knowledgeable to take people on tours and talk about their cities.


    A license to speak? Isn’t that a prior restraint?


    Well, yes. But it is also an occupational licensing law, and supporters of the law point out that we license plumbers, barbers, exterminators, cab drivers, funeral directors, and a host of other occupations, so why not tour guide companies. Of course, using the same logic, why not license reporters, authors, publishers, and bloggers as well? They’re all practicing a trade and are just as likely to speak out of ignorance, rather than erudition, as tour guide operators.


    The answer is that the First Amendment still provides a ray of freedom in our otherwise regulated world—at least for those lucky enough to make their living speaking and writing. But that won’t last if we allow government to regulate everything else.


    As my colleague Bob McNamara puts it in our video about this case, “The more occupational licensing restrictions grow, the more rights as basic as the right to talk about things will shrink.”

    Following up on my colleague Bert Gall’s discussion of seemingly unkillable frights, the Fair Elections Now Act (FENA) is also showing signs of life again.  FENA, one may recall, is the name for a number of bills that operate from the assumption that if you preemptively shower politicians with the people’s money, they will not be tempted to be corrupt.  Perhaps realizing that the post-election environment will be hostile for government subsidies for unsuccessful enterprises, Congress is giving the idea of bailing itself out one more try.  On Thursday, September 23, 2010, the House Committee on Administration will vote on yet another version of FENA.


    The current version of FENA does not include an obviously constitutionally-problematic “matching” or “rescue” funds provision, like the systems recently struck down in Connecticut and Florida and the Arizona system recently stayed by the U.S. Supreme Court.  That does not mean that the various versions of FENA do not contain serious constitutional problems.  Moreover, there is little evidence that using the people’s money to subsidize the campaigns of politicians provides any of the myriad and vast benefits promised by campaign finance reformers.


    When the government is spending trillions and sinking deeper into destabilizing debt, spending money the government doesn’t have to subsidize political campaigns seems like a bad joke.  At best, it displays a level of denial and entitlement by our elected officials that is almost delusional.  The members of the Committee should do themselves, the Constitution, the federal budget, and the taxpayers a favor and vote this idea down once and for all.

    From CCP's press release, which provides a detailed breakdown of the results:


    The Center for Competitive Politics released the results of a national poll today showing that likely voters are deeply skeptical of proposed campaign finance disclosure regulations, think current disclosure thresholds are too low and oppose the special deals given to unions in the DISCLOSE Act.


    As Glenn Reynolds would say, read the whole thing

    What does the DISCLOSE Act have in common with movie monsters like Jason Voorhees and Freddy Krueger? No matter how many times it appears to die, it keeps coming back to life. The Hill reports that Senate Democrats are preparing to force—as early as next week—a vote on a “bare-bones” version of the DISCLOSE Act that they hope will appeal to Senate Republicans like Susan Collins and Olympia Snowe, who have supported campaign finance restrictions in the past.


    This “bare-bones” version, although it will not include things like prohibitions on political spending by companies with more than twenty percent foreign ownership, will still have “disclosure” mechanisms designed to discourage corporations from speaking during election season. Thus, DISCLOSE remains, as it always has been, a cynical assault on First Amendment rights by politicians who are afraid of corporations speaking out against their reelection.


    As First Amendment advocates work again to put a stake in DISCLOSE’s heart, they should make sure, once and for all, that—unlike with Jason and Freddy—there is no possibility of a sequel.


    Image source: Valerie Everett

    TeaParty-AliceIn a recent article in National Journal, Jonathan Rauch explains that the “Tea Party” is not one organization run by a top-down command structure, but rather a large number of local organizations across the country.  Almost all of them are completely run by volunteers, and they do a multitude of different things: recruit candidates for office, hold rallies, network with other activists, etc.  Many do not even have a formal organizational structure, but are merely a band of interested people who get together to talk and strategize, then take it upon themselves to accomplish various goals and see if others want to help out.


    One particularly telling anecdote is the following:


    Asked how many neighborhood tea parties exist in the Dallas area, another citywide coordinator replied, “I don't even know.”


    The coordinator does not know because “tea parties” are often just groups of people who get together and start engaging in political activism.  Their existence ebbs and flows, with groups constantly forming and disappearing.  Groups frequently coordinate, but often they do their own thing.


    What the article does not mention is that much of what these various groups do is potentially subject to campaign finance laws.  For instance, if the members of a small grassroots tea party group want to put up signs for a candidate they like, under federal law (for a Congressional race) and the law of most states (for state and local races), they need to report their spending on those signs.  If the “group” (I use quotation marks as it could just be a few people who belong to a Meetup group or even an email list) is coordinating the effort with other “groups,” then all of the people involved may be subject to complex administrative and reporting requirements that can be navigated safely only with the aid of lawyers and accountants.  Much of this activity, luckily, flies under the regulators’ radar, but the potential for liability is widespread and ominous.


    All of this goes to show that campaign finance laws are not designed for a decentralized bunch of activists like the Tea Party movement.  But the application of campaign finance laws to the activities of these citizens is more than just another example of the government applying antiquated laws to a world they weren’t designed for.  More importantly, these laws threaten to wrap tea partiers—as well as activists of all political stripes—in so much bureaucratic red tape that they can’t speak.  While that’s a result that most professional politicians facing reelection this November would probably like, it’s one that those of us who care about keeping political speech in this country robust should abhor.


    Image source: Toronto Public Library Special Collections

    Last week, Paul Sherman blogged about how campaign finance laws are often used as weapons by opponents in political campaigns. That shouldn’t surprise us a bit. Businesses often use regulations to gain an upper hand against their competitors. It’s hardly surprising that competitors in the political marketplace do the same thing.courtroom


    Examples of this sort of thing abound. Kim Strassel of The Wall Street Journal recently reported on how opponents of Washington senatorial candidate Dino Rossi have been dogging him for years with lawsuits alleging violations of campaign finance laws. Conveniently, these suits tend to become active right around election time.


    Both political parties give as well as they get when it comes to the strategic use of campaign finance laws. But that doesn’t make these abuses acceptable. For one thing, the laws are just as likely to be used against ordinary Americans as professional politicians.


    A few years ago, the Institute for Justice defended an initiative campaign in Washington State that was sued for failing to disclose the on-air commentary of two talk radio hosts as “in-kind” contributions. The hosts supported the initiative, which sought to repeal a controversial gas tax, and they had the temerity to say so on the air. A number of local governments who stood to gain millions from the gas tax objected and expressed their disdain by suing the initiative campaign for allegedly violating disclosure laws.


    The same thing happened to a group of neighbors outside of Denver in 2006. They opposed an initiative to annex their neighborhood into the adjoining town. For talking to neighbors, sending out post cards, and putting up lawn signs, they were sued for failing to register as an “issue committee” under Colorado law. Not surprisingly, the supporters of annexation were the ones who filed the suit. IJ is also litigating this case, which is currently on appeal before the Tenth Circuit Court of Appeals.


    Campaign finance laws have done next to nothing to take the corruption out of politics. But they’ve done a great deal to put the lawyers and regulators in. That may provide for great political theater on occasion, but it doesn’t exactly inspire confidence in our electoral system, and it’s no way to protect free speech.


    new-yorkThe Holztman Vogel blog reports that New York City Public Advocate Bill de Blasio has a new front in his efforts to dissuade associations of Americans from exercising their First Amendment rights. A new website established by the Public Advocate condemns companies unless they pledge to not “tak[e] advantage” of the Supreme Court’s decision in Citizens United. In other words, he is using the taxpayers’ funds to castigate companies for retaining their ability to exercise their First Amendment rights.


    The website allows the visitor to scroll over the names of different companies divided into whether they have publicly pledged to refrain from speaking about politics. If a company has not sufficiently renounced its First Amendment rights to the Public Advocate’s satisfaction, the visitor is encouraged to “reach out and demand that companies which can still use treasury money in elections reform their spending policies.” No one is really sure what the Public Advocate's actual duties are, exactly, although the current holder of the office apparently believes part of his responsibilities is to spend the taxpayers’ money bullying organizations into renouncing their constitutional rights.



    2:42 PM

    The Democratic Governors Association (DGA) has filed a complaint with the Ohio Elections Commission, accusing Fox News of violating Ohio campaign finance laws.  Fox News’ supposed crime?  While Ohio gubernatorial candidate John Kasich was being interviewed by Bill O’Reilly, Fox News displayed the URL for Kasich’s campaign website under Mr. Kasich’s image for approximately 1 minute and 30 seconds of the 6 minute interview.


    Here’s a video of the interview, which the DGA apparently believes is so damning that they’ve uploaded it to YouTube themselves.  Kasich's URL appears 1:34 into the video:




    If you watch the video you’ll notice that the chyron at the bottom of the screen cycles through several different versions, including “John Kasich (R), Running for Ohio governor,” “John Kasich (R), Author of “Every Other Monday,” and “John Kasich (R),”


    That last one is what has the DGA up in arms.  The DGA claims that by displaying Kasich’s website, Fox News made an illegal “in-kind contribution” to Kasich’s campaign.  They also claim that Fox News should have included a disclaimer beneath the graphic, labeling it as a paid political advertisement.


    The DGA’s complaint is absurd, and the implications if it were taken seriously are astounding.


    censoredFollowing up on the post below by my colleague Anthony Sanders, Ohio Senator Sherrod Brown’s speech to the Ohio State Chapter of the American Constitution Society assailing the Citizens United ruling had a revealing theme. Much of what he said was the usual apocalyptic hysteria about the ruling that Brown has made before. However, Brown also suggested why he believed the ruling was so problematic: he believes it will make it harder to pass legislation he thinks is important. In other words, Brown believes the government must suppress speech in order to prevent some groups from interfering with his ability to get the policy outcomes he wants.


    This view is not new, unfortunately. One can easily disregard Brown’s simplistic Manichean worldview, where corporations run by autocratic robber barons (undoubtedly all fat men sporting walrus mustaches and wearing waistcoats and top hats) frustrate the noble legislature’s selfless quest for social democracy by manipulating the beliefs of a sheep-like public. More fundamentally, though, it is hard to find a position more antithetical to the First Amendment than the argument, “we need to suppress speech so the government has an easier time doing what it wants.”

    The First Amendment prevents the government from abridging free speech and the law at issue in Citizens United did just that—it banned books, pamphlets, advertisements, etc. because of the identity of the speaker. The fact that the Court struck down a law that silenced speakers with which government officials often disagree is precisely why the case was so important for the continued vitality of the First Amendment. Perhaps Senator Brown’s real problem with the case is that it establishes that if the First Amendment protects anything, it protects political speech—even the speech of those who disagree with wanna-be censors like Sherrod Brown.


    In a recent speech Senator Sherrod Brown of Ohio unwittingly illustrated the folly of attacks on “judicial activism” by the left and the right.  Senator Brown decried the Supreme Court’s opinion in Citizens United because it allowed corporations (and unions, although it does not appear the Senator complained about that result) to speak about elections.  He claimed there is no “better example of an activist judiciary legislating from the bench than the Citizens United case.”  He said this flew in the face of decades of complaints from conservatives arguing “that liberal courts are making law from the bench.”


    Senator Brown is right that conservatives have used the rhetoric of “judicial activism” for years when courts have struck down laws that they like.  And many of those same conservatives support the Court when it strikes down laws they do not like, such as the ban on corporate speech at issue in Citizens United.  But the same can be said of leftists.   They support the Court when it strikes down, for example, bans on flag burning or nude dancing, but excoriate the Court when it defends the right of people to associate in the corporate form and speak, as the Court did in Citizens United.


    Here at the Institute for Justice we disagree with both sides.  We reject the terms “activism” and “restraint” as they are commonly used as two sides of a false dichotomy.  Instead, judges should practice judicial engagement, no matter what the context.  That is, they should do their jobs.  The First Amendment says “Congress shall make no law . . . abridging the freedom of speech.”  It is not “activist” to actually enforce that language.  Judges, just like Senators, swear an oath to support and defend the Constitution.  Instead of complaining when judges do their job, we should be outraged that many judges, such as the dissenters in Citizens United, vote to uphold laws that violate the Constitution.  In short, the real outrage is not judicial engagement, but judicial abdication.


    Image source: Cayusa

    Doom's three-pronged attack. by topfifeAs we’ve noted, Target has drawn heavy fire for its donation to an organization that’s speaking out in support of Minnesota gubernatorial candidate who opposes gay marriage. One of the latest examples of this criticism is a humorous viral video featuring a flash mob that performs a song called “Target Ain’t People”—set to the tune of Depeche Mode’s hit song “People are People”—in the middle of a Target store as employees and customers look on with varying degrees of bemusement.


     A link to the video is here. A small sample of the lyrics follows:


    I can’t understand what makes Target

    think they’ll get away. Gonna make them pay.


    Target ain’t people so why should it be

    allowed to play around with our democracy.


    Later, the performers tell their audience: “Boycott Target. Take America back!”


    You could dismiss this video as the frivolous ramblings of slackers who like to dress up in costumes and make an annoyance of themselves instead of, you know, getting a job. But that would be a mistake. That’s because the video unwittingly provides all the insight you’ll ever need into what makes critics of Citizens United tick.


    For all their railing against Target spending money on speech, it’s clear that the not-ready-for-prime-time players don’t think that corporations like Target can make them do their bidding. They want the audience to know that they’re smarter and hipper than that. And they clearly believe that there are at least some like-minded individuals of a progressive political mindset who will join them in their anti-Target crusade.



    Inevitably, whenever one starts reading about the government’s “compelling” need to collect information on the political activity of American citizens, one comes across this quote from Justice Louis Brandeis:  “Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.”  Ever since the Supreme Court used the quote in Buckley v. Valeo to support federal campaign disclosure laws, anyone arguing that the government should not be in the business of maintaining databases of the political activities of its citizens is confronted with this chestnut.


    lysolIt’s time to put this cliché to rest, if for no other reason than it is purely idiotic from a substantive standpoint.  Try treating your next bout of sepsis with sunlight and see how well that goes.  Somehow widespread electrification across the U.S. has not alleviated the need for policemen.  If someone other than Louis Brandeis had said this, most people would think that that person was delusional.


    Moreover, this line has nothing to do with the First Amendment.  Brandeis wrote this line in a book, Other People’s Money and How the Bankers Use It that dealt with bankers’ use of “other people’s money” to invest in companies in which they held interlocking directorates and other financial shenanigans.  He was urging that the financial interests of these bankers should be transparent so that investors and depositors knew what happened to their money.  His line was not a call for the widespread collection of data on citizen speech that the government engages in today.


    Finally, when employing this quote, most pro-regulation writers do not include the sentence that immediately precedes the “disinfectant” line:  “Publicity is justly commended as a remedy for social and industrial diseases.”  Whatever a “social or industrial disease” may be, the First Amendment does not qualify.  Rather, the First Amendment is the key to American liberty and an indispensible tool against tyranny; when government monitors and collects information about the political speech and activities of Americans, First Amendment rights are harmed.  It’s high time we stopped applying a remedy assumed to eliminate “social and industrial diseases” to one of our most fundamental constitutional rights.


    Image source: Roadsidepictures

    Glenn Greenwald wrote a column in Salon back in 2008 that bears on the debates over Citizens United and the Shareholder Protection Act. Greenwald rightly criticized Palin for claiming the First Amendment was threatened when reporters attacked her for making negative comments about President Obama:


    The First Amendment is actually not that complicated.  It can be read from start to finish in about 10 seconds.  It bars the Government from abridging free speech rights.  It doesn’t have anything to do with whether you’re free to say things without being criticized, or whether you can comment on blogs without being edited, or whether people can bar you from their private planes because they don’t like what you’ve said.  


    Amen to that.



    In a receninetcensorM3Li55t op-ed, Steven Maviglio and Jon Fleischman, two veteran California bloggers, lavish praise on the Fair Political Practices Commission for its suggestions on how to regulate online political activity.  According to the two, “the use of the Internet for political activity has enriched democracy, inspired creativity and fostered robust debate.”  So what’s the problem?  Well, it turns out that some people have been talking in ways that the two don’t like.  So in order to “tame politics on [the] Web,” as the two put it, California has chosen to toss anonymity out the window and to require that candidates’ Facebook posts, tweets, and e-mails be larded up with as many disclaimers as they can bear.


    Although Maviglio and Fleischman commend the FPPC for its light touch, we here at Congress Shall Make No Law have an even more modest suggestion: do nothing.  The First Amendment protects all Americans’ rights to talk about whatever they want.  Freedom of speech is our birthright, not a mere privilege that the government may grant or deny as it sees fit.


    In an op-ed in yesterday’s San Francisco Chronicle, R. Warren Langley and Ciara Torres-Spelliscy argue that Citizens United opens the door to corporate abuse of shareholder rights:


    What's really the problem with Citizens United, the case that welcomes corporate money into politics? It lets CEOs spend your money for any political reason they want. So if the CEO wants a ticket to the inaugural ball, a night in the Lincoln Bedroom in the White House or an ambassadorship, he can buy it with your money.

    Given the hyperbole to which critics of Citizens United are prone, it seems almost churlish to point out that everything in the preceding paragraph is nonsense.


    As the U.S. Supreme Court considers whether to take up IJ’s First Amendment challenge to Arizona’s system of taxpayer-funded campaigns, it is worthwhile to ask whether systems like these deliver the promised benefits to the public that pays for them. Inevitably, supporters claim that public funding will revolutionize—and, of course, elevate—democracy. See, for example, the lofty list of promises made by drafters of a proposal currently before Congress.


    Arizona has been using taxpayer dollars to pay politicians to run for office for 10 years, and so has Maine. Other states and localities have likewise experimented with different varieties of full- or partial-public funding for political campaigns. In all that time, what have we learned?


    In his new IJ research brief, political scientist David Primo takes a clear-headed look at the social science evidence for key claims of public funding backers. His conclusion: The reality falls short of the rhetoric.


    As Bill Maurer notes below, at the heart of IJ’s challenge to Arizona’s “Clean Elections” law is an obvious and important claim: If the government gives additional money to your political and ideological opponents whenever you speak, you are less likely to do so. Thus, the so-called “matching funds” (or “rescue funds”) in Arizona’s law and several others chill the exercise of the First Amendment right to speak freely about politics.


    Incredibly, defenders of such laws claim that those facing matching funds—candidates who refuse taxpayer funds and independent groups that support them—are free to speak as much as they like. This is contrary to common sense: Who wants to speak more when the inevitable result of that speech will be more taxpayer dollars for the candidate (or candidates) you oppose?


    It is also contrary to recent scholarly research. David Primo, associate professor of political science at University of Rochester, analyzed four cycles of Arizona election data and found that candidates at risk of triggering matching funds employ a clever strategy to avoid having their campaign speech drowned out—they hold their tongues until the last minute. That way, the matching funds arrive too late to do their opponents much good.


    Primo explains his findings in a new research brief published by the Institute for Justice. He also notes research from political scientist Michael Miller that suggests this practice is common among privately funded candidates in Arizona. As one candidate told Miller, “Every dollar I spend over the threshold starts feeding the alligator trying to eat me . . . . I sent out a lot less mail and held a lot less events than I would have but for my hands feeling like they were tied under this system.” That sure doesn’t sound like someone who feels free to robustly exercise his First Amendment rights.


    Update: Primo has this op-ed on his research at Huffington Post.


    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.

    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.

    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.”guy-wrapped-in-red-tape


    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.


    CQ reports that more groups are taking advantage of the recent decisions in Citizens United and 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. 



    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 v. FEC.

  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 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, 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 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.



    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 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.”

    At her blog, Crossroads, CBS News Chief Legal Correspondent Jan Crawford is commenting on the issues discussed during Solicitor General Kagan’s confirmation hearings. In her most recent post, she offers a “Reality Check” in rebuttal to the assertion that Citizens United reversed over 100 years of precedent and was an example of the Roberts Court “cozying up to corporations.”

    During his opening statement yesterday at Solicitor General Kagan’s confirmation hearings, Senator Al Franken unsurprisingly took the opportunity to criticize the U.S. Supreme Court’s decision in Citizens United v. FEC. Arguing that the Motor Vehicle Safety Act and the Clean Air Act wouldn’t have passed if companies like General Motors and Standard Oil had been allowed to run ads right before election season against the politicians who supported that legislation, he concluded that:


    So here’s my point, General Kagan: Citizens United isn’t just about election law. It isn’t just about campaign finance.


    It’s about seat belts. It’s about clean air and clean water. It’s about energy policy and the rights of workers and investors. It’s about health care. It’s about our ability to pass laws that protect the American people even if it hurts the corporate bottom line.


    Put aside for a moment Senator Franken’s apparent belief—shared by other advocates of “campaign finance reform”—that the American people aren’t smart enough to hear corporations’ arguments on policy issues and then decide for themselves. (For my rebuttal of this ridiculous claim, click here.) Also put aside the fact that corporations hardly have a monolithic view on all of the issues he listed.


    The most important thing about Senator Franken’s statement is that it is a clear admission by him that he favors restrictions on corporations' speech because he does not like the policy results that their speech may produce. Presumably, if every corporation liked all the policies that he does, he’d be fine with them speaking as much as possible.


    Sorry, Senator Franken. The First Amendment doesn’t say, “Congress shall make no law . . . abridging the freedom of speech, except when Congress doesn’t like what the speaker has to say.”

    puppetmasterTom Bowden blogs at Voices for Reason about the many states that offer subsidies to filmmakers and the fact that those subsidies increasingly come with strings attached. Tom makes the quite sensible point that subsidies are a violation of taxpayers’ rights not to have to fund films at all, let alone those with which they might disagree.  


    But this should also remind us that when the government pays the piper, it gets to call the tune. We should keep that in mind as the challenge to Arizona’s misnamed “Clean Elections” Act makes its way to the U.S. Supreme Court next term. (The case is being litigated by the Institute for Justice and the Goldwater Institute, which will be filing petitions for review in the U.S. Supreme Court later this summer.)



    In Citizens United v. FEC, the U.S. Supreme Court invalidated a major part of the Bipartisan Campaign Reform Act of 2002, also known as McCain-Feingold, which banned corporations and unions from running certain types of political advertisements close to elections.  Today the Supreme Court summarily rejected (.pdf) a challenge to another major part of McCain-Feingold, the so-called “soft-money ban,” which limits the amount of money that individuals may donate to political parties.  The case is Republican National Committee v. FEC, No. 09-1287.


    Lovers of liberty needn’t worry.  As Professor Rick Hasen notes, the Court’s one-sentence order does not signal a reversal of its recent trend in favor of greater protection for free speech and against campaign finance laws.  Challenges to McCain-Feingold are subject to a special procedure—the cases are tried before a three-judge panel, and the losing party has a direct right of appeal to the Supreme Court.  What this means in practice is that if the Court rejects the case, as it did here, that counts as a summary affirmance of the three-judge panel’s opinion.  Because the Court does not provide the reasoning for the summary affirmance, the ruling is not necessarily an endorsement of the lower court’s decision


    So what can we take away from the summary affirmance?  Not much.  We know that three Justices—Kennedy, Scalia, and Thomas—opposed the summary affirmance and would have had the case argued before the Court, presumably to reverse the lower court and strike down the soft money ban as it applied to the Republican National Committee.  Beyond that, the only take-away is that the soft-money ban has been granted at least a temporary reprieve.  But it will undoubtedly be subject to future challenges, and this summary affirmance does not foreclose the Court from holding the law unconstitutional in the next case to raise the issue.


    Additional commentary from our friends at the Center for Competitive Politics is available here.

    tall-stack-of-papersThere used to be a saying that a conservative is a liberal who has been mugged. On that theory, one might say that an opponent of campaign finance laws is, well, someone who has had to comply with them. It’s not a terribly principled reason to oppose the laws, perhaps, but we’ll take our converts where we can get them.


    Mickey Kaus, who just ran for office in California, might be a candidate for just such a conversion. On his blog, he quotes an FEC publication informing him that even though he lost, his campaign committee “must continue to file periodic reports after submitting a termination report until you receive Commission approval for termination.”


    Got that? You need FEC permission to stop being a committee. (God forbid the IRS gets wind of this. We all might need the government’s permission to die).



    Money can’t buy you love.  Or an election, it turns out.


    A recent study that looks at self-funded candidates proves that “vanity candidacies” are just about as popular with the public as vanity books, vanity movies and other “look at me” projects.  In the past decade, self-funded candidates—i.e., those who raised more than half of all their campaign contributions from themselves or an immediate family member—have pumped more than $ 900 million into their own campaigns.  But despite these large amounts, self-financed candidates have prevailed only about 11 percent of the time.


    This study demonstrates two important things.  The first is that elections are not a contest of who has more cash; candidates and their views do in fact matter.  The second is that when candidates don’t have to raise funds from the electorate—either because they self-fund or get their campaign cash from the government—they are not subject to the discipline of the political marketplace.  So what you often end up with are maladroit candidates whose views often fail to reflect those of their would-be constituents

    Real Clear Politics has a remarkable video of Rep. Hank Johnson (D-GA) speaking out in support of the DISCLOSE Act.  According to Rep. Johnson, the law is necessary because, otherwise, “we will see more Republicans getting elected” in the wake of the Supreme Court’s decision in Citizens United v. FEC.


    It’s unusual to see an incumbent politician openly express his desire to use campaign finance regulation to stifle advocacy for his political opponents.  That sort of candor is usually reserved for closed-door meetings, like the one earlier this week at which DISCLOSE Act sponsor Rep. Chris Van Hollen (D-MD) is reported to have warned fellow Democrats that they “would find themselves in electoral trouble this fall should the bill not pass.”


    Between these comments and the recent NRA carve-out, if the DISCLOSE Act passes, the judges who decide the inevitable legal challenge should be appropriately skeptical of the sponsors’ supposedly lofty goals.  Respect for the First Amendment requires nothing less.

    In his concurring opinion in Doe v. Reed, Justice Scalia concludes:


    Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed.  For my part, I do not look forward to a society which . . . campaigns anonymously [ ] and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism.  This does not resemble the Home of the Brave.


    Justice Scalia’s statement should shock any student of history.  Our “Home of the Brave” was birthed by anonymous pamphleteers such as Thomas Paine.  Indeed, our Constitution was ratified only after the anonymous “campaign” by Alexander Hamilton, John Jay and James Madison to sway voters through a series of essays known as The Federalist Papers, which were published in newspapers throughout New York under the pseudonym “Publius.”  Far from being protected from scrutiny, these essays engendered further anonymous campaigns by “Federal Farmer,” “Brutus,” “Cato” and “John DeWitt,” known today as The Anti-Federalist Papers—a campaign that resulted in our Bill of Rights.  Surely no one would suggest that these individuals lacked civic courage or that their endeavors doomed our democracy.  Why should the 137,000 citizens who signed a referendum petition to change state law be any different?



    speechformeNow that the DISCLOSE Act has passed the House, it’s worth considering anew the NRA’s decision not to oppose the bill in exchange for an exemption for itself. Perhaps news of the demise of DISCLOSE was a bit premature.


    In a letter to The Washington Post, the NRA’s Chris Cox defends the group’s decision:


    It’s easy to say the NRA should put the Second Amendment at risk over a First Amendment principle to protect other organizations—unless you work for the NRA and are sworn to defend the Second Amendment above all else. The NRA cannot defend the Second Amendment without the ability to speak.


    But why would anyone defend the Second Amendment "above all else"?


    As both a gun owner and a staunch advocate of individual rights, I’m a big fan of the Second Amendment. But gun rights are important because all rights are important. Compromising on the protection of any rights ultimately destroys protections for all of them. We can’t pick a list of favored rights and jettison protections for all the others—not if we want them to be treated as rights, rather than mere privileges doled out to us or taken away from us at the whim of a government official.


    Unfortunately, that appears to be the NRA’s position—the First Amendment is expendable as long as we still have the Second. That’s both unprincipled and foolish, because without protections for free speech, we will end up losing all rights, including our right to keep and bear arms.

    After looking dead as a doornail as recently as one week ago, the unfortunately named “DISCLOSE Act” is showing signs of life. 


    Yesterday the United States House of Representatives passed the DISCLOSE Act by a vote of 219-206.  Although only two Republicans ultimately supported the measure, thirty-six Democrats voted “no.”


    Part of what spurred the DISCLOSE Act in the House was Senator Harry Reid’s promise that the Senate would take up the bill if it cleared the House.  Whether that turns out to be true, and whether the DISCLOSE Act can muster 60 “yes” votes in this tumultuous election season, is something that only time will tell.


    For more IJ analysis of the DISCLOSE Act, click here.

    Today, the U.S. Supreme Court released its opinion in Doe v. Reed, a case that asked whether thesupremecourt First Amendment prohibited Washington State from ever disclosing the names and addresses of those who signed a petition to get an issue on the ballot.  In an 8-1 decision, the Court ruled against that broad challenge while reserving judgment on whether the petitioners in the case—who had signed a petition that sought the repeal of a bill that expanded same-sex partnership rights—were entitled to an as-applied exemption from the disclosure requirements on the grounds that they were potentially subject to threats and harassment.


    Imagine that a group of homeowners facing the threat of eminent domain for private development pools their money and takes out an ad in a local newspaper. The ad urges fellow citizens to tell their state representatives to vote for a bill that would stop such abuses statewide. Or imagine that a group of citizens concerned about government taxation and spending—or any other issue, for that matter—starts a website and a newsletter to inform others about pending legislation and spur them to contact legislators in advance of key votes. This is exactly the kind of citizen-to-citizen political speech about important issues of the day the First Amendment was intended to protect, right? 


    Yes, but in at least 36 states this speech may be illegal without first registering with the government and then detailing your ongoing political activities through periodic (and mind-numbingly complex) reports. University of Missouri economist Jeff Milyo explained the problems that regulation of so-called “grassroots lobbying” creates for ordinary citizens in a report published by the Institute for Justice, Mowing Down the Grassroots, and he’s guest-blogging on the topic this week at the Volokh Conspiracy


    IJ is challenging Washington’s restrictions on grassroots lobbying as a violation of the First Amendment. Prof. Milyo’s earlier research published by IJ examined how state laws create a thicket of red tape for people who want to speak out about issues on the ballot.

    The Supreme Court issued its opinion in Doe v. Reed today, holding that compelled disclosure of petition signatures must be analyzed under the First Amendment, but does not necessarily violate the First Amendment.  The Court remanded the case for further consideration.  The decision is 8-1 with Justice Thomas dissenting.  Several Justices filed concurring opinions.  We will have analysis of the opinion shortly.  The opinion is available here.

    Imagine if every time The New York Times published an editorial about politics, the government cut a check to the New York Post, the Daily News, and The Wall Street Journal so they could respond.  The Times would rightly condemn this policy for discouraging that paper from exercising its First Amendment rights.


    Nonetheless, the Times lauds Arizona’s so-called “Clean Elections” system, which does essentially the same thing to groups of citizens that merely want to speak about politics.  The Times also decries the U.S. Supreme Court’s decision to temporarily halt that system while the plaintiffs, represented by the Institute for Justice and the Goldwater Institute, ask the Court to review a decision of the Ninth U.S. Circuit Court of Appeals upholding that system.


    Under Arizona’s law, when people spend money to advocate for a political candidate, the state gives a check for an equal amount of money to each of that candidate’s government-funded opponents.  If there are three government-funded opponents lined up against a candidate who raises money through voluntary contributions—that’s three checks sent to the traditional candidate’s opponents.  This system violates the First Amendment—no less than the hypothetical newspaper law described above would—and the Supreme Court was right to temporarily freeze it.  The Court should follow up by taking the case for consideration next term and striking down Arizona’s bad “Clean Elections” law for good.

    Welcome to Congress Shall Make No Law, a complement to the Institute for Justice’s fight, both in courts of law and the court of public opinion, to defend the freedom of speech from government encroachments—particularly so-called “campaign finance” laws.



    Freedom of speech is one of the most important rights Americans enjoy, yet one of the least understood and most neglected. Like the air that we breathe, speech is so integral to our lives and so ubiquitous—think twitter, Facebook, blogs, cell phones, and email and much more—that most Americans take it for granted.


    Yet we ignore the right to free speech at our peril. Indeed, it was not until 1931 that the Supreme Court first struck down a statute under the First Amendment, and the relatively vigorous legal protections our speech enjoys today have only existed for about 50 years.


    When the U.S. Supreme Court stated in Citizens United censoredthat the FEC’s “business is to censor,” Justice Stevens protested in his dissent that this characterization was “nonsense” and “deeply disconcerting.” According to Justice Stevens, “[t]he FEC’s business is to administer and enforce the campaign finance laws.”


    So who’s right? Well, both.


    The FEC’s job is to enforce the campaign finance laws, but to do that, it has to censor speech. That is true whether or not the FEC is composed of a bunch of well-meaning bureaucrats who use smiley faces instead of “censored” stamps.



    The NRA is rightly catching a lot of flack for dropping its opposition to the DISCLOSE Act on the condition that it is shielded from the law’s provisions. But, in truth, it was simply responding to the incentives provided by a political system in which it is accepted that the government can limit speech with so-called "campaign finance" laws. Limiting the overall amount of speech puts the government in position to ration speech. The result is a zero-sum game in which groups are left to duke it out in the political process in order to determine who gets how much of the speech pie.


    It’s no surprise that the victors will be those well-established powerful groups, like the NRA, that have the most political muscle. Smaller, less-established groups will inevitably lose out. (Remember that the next time someone tells you that "campaign finance reform" benefits the little guy.)


    Yes, it’s outrageous that the NRA sold out the latter groups in order to guarantee its government-apportioned allotment of speech. But it’s a predictable result of what happens when Congress—having eschewed a free market in speech—arrogates to itself the power to dole out those allotments. Yet another reason why the public should demand a return to the United States’ first, and still best, policy on speech: "Congress shall make no law . . . abridging the freedom of speech."

    It’s a sure bet that several of the Senators who sit on the Judiciary Committee will use Solicitor General Kagan’s confirmation hearing as a platform to continue attacking the Supreme Court’s decision in Citizens United v. FEC. For a primer on the top five myths promoted by the critics of this landmark victory for free speech—including the assertions that Citizens United is like Dred Scott and that it will allow corporations to "buy" our democracy—click here.

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