Congress Shall Make No Law...

    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.

    keep-out-report-1

    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

     

    GIVE AVERAGE CITIZENS MORE PRESENTATION! REDUCE AND LIMIT CAMPAIGN SPENDING! STOP THE ENDLESS MONEY CHASE! STOP SPECIAL INTEREST MONEY! LEVEL THE PLAYING FIELD!

     

    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.