Congress Shall Make No Law...

    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.