This morning, the U.S. Supreme Court granted cert in IJ's challenge to
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
The case started when our clients, six neighbors who opposed the annexation of their neighborhood into the nearby town of
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 SpeechNow.org 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 Moveon.org 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
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.
Probably 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
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.
As 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.
Read more by Paul Sherman
Read more by Steve Simpson
Read more by Bert Gall
Read more by Bill Maurer
Read more by Robert Frommer
Read more by Lisa Knepper
Read more by Darpana Sheth
Read more by Anthony Sanders
The 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.
We’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
Hsieh details some of the difficulties of complying with
IJ commissioned an economist from the
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.