Congress Shall Make No Law...

    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.