Congress Shall Make No Law...


    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.