Congress Shall Make No Law...

    Another round of elections, another chance to relearn an old lesson: Money does not buy elections. This time, Politico learns that “In six of the most hotly contested GOP primary contests this cycle, the best funded candidate lost.”

     

    That money does not buy elections is a fact that has been borne out time and again. But so many are so invested in the contrary myth that they just won’t let it go. Take Mike McCabe of the Wisconsin Democracy Campaign, who is quoted in the Politico piece as saying “It’s the exception to the rule. Ninety-five percent of the time, the candidate who spends the most wins.” But Mr. McCabe is getting cause and effect mixed up.

     

    As Professor Jeffrey Milyo noted in a recent Freakonomics Quorum,

     

    It is true that winning candidates typically spend more on their campaigns than do their opponents, but it is also true that successful candidates possess attributes that are useful for both raising money and winning votes (e.g., charisma, popular policy positions, etc.). This “reverse causality” means that campaign spending is potentially as much a symptom of electoral success as its cause.

     

    Or, as Stephen Dubner put it, “winning an election and raising money do go together, just as rain and umbrellas go together. But umbrellas don’t cause the rain.”

     

    So, we have yet more evidence that money does not buy elections. Instead, money facilitates speech. It buys exposure—the opportunity to make your speech heard by voters. It does not and cannot buy elections because the voters are ultimately the ones deciding who to vote for. And—contrary to the belief of “reformers”—voters do not just blindly embrace those campaigns with the most money for advertising.

     

    Americans did not race out and embrace New Coke or the Ford Edsel just because big advertising campaigns said they should. Neither do they embrace Edsel-like candidates just because big advertising campaigns say they should.

    Congratulations to our friends at the Center for Competitive Politics, who yesterday won a victory for free speech in Patriotic Veterans, Inc. v. Indiana. The case concerned an Indiana law that prohibited pre-recorded political phone calls unless the recorded message was introduced by a live operator. The effect of the law was to favor well-funded, well-established interests that could afford live operators over newer groups that could not.

     

    The court did not reach the First Amendment issue, instead holding that the state law was “preempted” by the Federal Telephone Consumer Protection Act. But as CCP Chairman Brad Smith notes, “the end result is the same: [yesterday’s] ruling advances the First Amendment and provides for more competitive elections in the state.”

     

    The full text of the opinion is available here.

    wisconsinMake No Law readers may remember the Institute for Justice’s victory in Sampson v. Buescher, where the Tenth Circuit Court of Appeals ruled that grassroots groups have the right to speak about ballot issues without registering with the government and disclosing their activity.  Now the positive effects of that ruling are being felt in other states.  Last Wednesday, in the case of  Hatchett v. Barland, No. 2:10-cv-00265 (E.D. Wis. Sept. 14, 2011), a federal trial court in Wisconsin followed the Sampson ruling to conclude that it violates the First Amendment to force a citizen to tell the government that he sent a few political postcards to his neighbors.

     

    “Mailing post cards?” you ask.  “That doesn’t sound like those ‘fat cats’ we keep hearing about.”  Indeed, this case is just the latest example of how the burdens of disclosure laws fall hardest on ordinary citizens who don’t have lawyers to alert them to the pitfalls of campaign finance laws.

     

    Here’s what happened.  In 2006, only a few days before a Spring election, Charles Hatchett discovered that a referendum concerning liquor sales was on the ballot in his town.  Afraid the referendum would pass because of lack of publicity he sent out 524 postcards advocating that people vote against it.  It worked—the referendum was defeated.

     

    Unfortunately for Mr. Hatchett, he did not know that under Wisconsin campaign finance law he should have placed a disclaimer on the postcards and reported his spending if it was over $25.  His total came to about $300.

     

    Once the postcards became public, police officers questioned him and his son about whether he had sent them out.  Imagine that—police interrogating an American citizen because he had had the audacity to exercise his freedom of speech.

     

    Thankfully, Mr. Hatchett fought back and won.  The Wisconsin court, citing Sampson v. Buescher, ruled that applying a disclosure law to ordinary citizen speech such as Mr. Hatchett’s violates the First Amendment.  This should not be a surprise: No American should have to register with the government for the “privilege” of sending postcards to his neighbors.  What’s surprising is that the law ever existed in the first place.

    In a story that demonstrates almost everything that is wrong with the breadth and complexity of campaign finance laws in this country, the Washington Public Disclosure Commission has weighed in on an issue that threatens our very democracy to its core: whether the purchase of used campaign signs for $10 each in a race for the Edmonds, WA, city council was a campaign contribution or not. While reformers constantly talk about “plutocrats,” “big-money special interests,” and “sugar daddies,” in reality the burden of campaign finance laws fall heavily on new comers, small campaigns and grassroots organizations, who do not have the lawyers, accountants, and funding necessary to comply with the government’s increasingly incomprehensible but exacting regulations on political speech. Byzantium at its most decrepit could not have conceived of a law as petty and intrusive as this.

     

    The end result, of course, is that these laws drive amateurs and regular citizens from politics and leave the playing field to professionals and large, well-funded interests. In other words, politics becomes the sole preserve of the very “plutocrats” campaign finance reformers claim to abhor. Nonetheless, we can expect reformers to continue to assail “big money” interests while they promote laws that drive “small money” actors from politics altogether.        

    I have an op-ed in the Tampa Tribune today about IJ's challenge to Florida's campaign finance laws, which place unconstitutional burdens on groups that independently advocate the passage or defeat of ballot issues.  Here's an excerpt:

     

    Tampa_Tribune

    “Hey Bob, have you been reading about Amendment 4?”

     

    “I sure have, Susan. I think it’s awful.”

     

    “Me, too. We should do something about it.”

     

    “How about a full-page ad in the Tribune? We could split the cost.”

     

    “That’s a great idea. Let’s keep it simple: ‘On Nov. 2nd, Vote No on Amendment 4.’”

     

    Sounds simple enough, doesn’t it? It’s the sort of thing Americans do all the time when they’re mad about a candidate or ballot issue. Indeed, it’s the sort of thing James Madison, Alexander Hamilton and John Jay did when they anonymously published the Federalist Papers in support of ratifying the Constitution.

     

    But it’s also the sort of thing that’s illegal in the state of Florida.

     

    If Bob and Susan carry out their plan, they will have broken at least half a dozen state laws. Their political speech has landed them in the minefield of “campaign finance” law, where exercising basic First Amendment rights can lead to fines or even jail time.

     

    The whole thing is available here.

     

    Image source: hyku

    In the marketplace for goods and services, entrepreneurs are engines for innovation and change. Likewise, in the political arena, political entrepreneurs bring new ideas and voices to public debate and provide outside competition that keeps the political establishment on its toes.

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    As part of the Institute for Justice’s new Citizen Speech Campaign, we released a report by campaign finance expert Jeffrey Milyo that explains the value of political entrepreneurs to the vibrancy of American democracy—and shows how campaign finance laws tell them to “keep out.”

     

    Milyo points to the civil rights movement of the 1960s and today’s Tea Party movement as classic examples of political entrepreneurs challenging the status quo. IJ’s Robert Frommer pointed to another example when he highlighted the growth of “SpeechNow Groups” following the model created by political entrepreneur David Keating, and yet another in a group of Florida citizens who want to speak up about a constitutional amendment on the ballot.

     

    Yet campaign finance laws in all 50 states erect barriers to entry for such political entrepreneurs, just as occupational licensing laws keep upstarts from competing with established interests in the marketplace.

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    In America, the only thing you should need to talk about politics is an opinion. But unfortunately far too many states view freedom of speech not as a right, but a privilege that they can regulate, license and control. Today, the Institute for Justice has launched a nationwide Citizen Speech Campaign that will vindicate the First Amendment rights of all Americans through strategic research, outreach and litigation.

     

    Watch and Share IJ's New Campaign Finance Video
    "Camp Politics"

     

    One state that is in desperate need of help is Florida. Unfortunately, residents of the Sunshine State “enjoy” some of the worst campaign finance laws in the nation. For instance, whenever two or more people join together to spend money speaking out about a ballot issue, they must first register with the government and comply with complex organizational, administrative, and reporting requirements under the threat of fines and even possible jail time. These laws in effect turn politics into an insiders’ game.

     

    No one should have to suffer these burdens in order to speak. After all, advocating for or against a ballot issue is core political speech that lies at the heart of the First Amendment. To vindicate this right, the Institute for Justice has brought a federal lawsuit on behalf of Nathan Worley, Pat Wayman, John Scolaro and Robin Stublen, four members of a Tampa-area political group who want to run radio ads against a land-use measure that is on the November ballot. Florida’s campaign finance laws, though, say that as soon as they raise $500, they must jump through government-created hoops in order to speak.

     

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    September
    28
    10:02 PM

    While Senate Republicans have successfully put a stop to DISCLOSE for the time being, the Fair Electiapprovedons Now Act (FENA) continues to move forward in the House. This past Thursday, the Committee on House Administration voted to send FENA to the floor. One Democrat, Artur Davis, voted against it. According to sources on the Hill, there has been no decision yet on when or if House leadership will schedule a vote, but proponents are underwriting a substantial ad campaign in favor of the bill.

     

     

     

     

    A front page article in today’s Washington Post highlights how free speech is on the rise.  Since late July, many new groups from across the ideological spectrum have come together to independently advocate for or against candidates this election season.  By vigorously talking about the issues and candidates they care about the most, these new groups have the potential to reshape the face of American politics. 

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    This explosion of activity didn’t just happen randomly, though.  Instead, it was made possible by a group called SpeechNow.org.  David Keating, SpeechNow.org’s founder and president, set up the group precisely to allow individuals to do what they are now doing—joining together to speak out about candidates.  Federal law prevented that, however, by making the groups PACs and restricting their fundraising.  Under the law, one person could spend as much as he wanted for his own speech, but if he joined with others, they were each limited to $5,000 apiece.  In essence, the law forced people to choose between their constitutional right to speak and their constitutional right to associate. 

     

    In February 2008, the Institute for Justice and the Center for Competitive Politics sued the federal government on behalf of SpeechNow.org.  More than two years later, SpeechNow.org prevailed on its claim that the government could not limit the amounts individuals can give to the group to fund its independent speech.  The D.C. Circuit ruled unanimously that independent speech—even speech calling for the election or defeat of candidates—does not pose a threat of corruption and thus cannot be limited.  The victory benefitted not only SpeechNow.org but groups of all political stripes, which is exactly the reason so many of them have cropped up in recent months. 

     

    The Post is referring to these groups as “Super PACs,” but that’s a misnomer.  PACs give money to candidates.  “SpeechNow Groups” do not.  They spend their own money on their own speech about candidates, which is one of the primary things the First Amendment was designed to protect.  After the Citizens United decision, many people howled that corporations are not people and should not be permitted to speak.  Well, SpeechNow is “people”—people joining together to exercise their First Amendment rights to speak out and to affect the course of their government.  Because of David Keating and SpeechNow, a ruling that allowed corporations to spend their own money on speech has now been extended to prevent the government from restricting the ability of citizen groups—presumably the very groups that critics of Citizens United want to be able to speak—to pool their funds and amplify their voices.  That’s a huge win for free speech.

    The President is disappointed that the DISCLOSE Act died in the Senate last week.  He said, among other things, that “Wall Street, the insurance lobby, oil companies and other special interests are now one step closer to taking Congress back and returning to the days when lobbyists wrote the laws.”

     

    Wait just a second. Surely the President isn’t suggesting that we’ve recently been in an age where lobbyists have not been writing legislation. It’s an open secret that they’ve always helped with drafting bills—including legislation that the President has championed, such as reform of the health care and financial industries. The DISCLOSE Act wouldn’t have changed this status quo in the slightest.

     

    What it would have done instead is make it harder for the vast majority of Americans—including those of us who can’t afford to hire lobbyists—to have a real say in the political process. Unlike lobbyists, they don’t get to air their views to lawmakers on a regular basis. In order to advance the political issues they care about, people have to let their representatives know that they will be held accountable at the ballot box for the positions they have taken on those issues. Doing that requires communicating with as many voters as possible in the most effective manner possible. This can happen only if individuals are free to associate with others and pool their resources so that they will have enough money to run ads in popular media such as radio and television.

     

    The DISCLOSE Act—by imposing new and burdensome costs on free speech—would have stifled this freedom. Indeed, some of its supporters have all but admitted as much. Because incumbent politicians don’t relish the prospect of lots of ads that hurt their reelection chances, it shouldn’t surprise us that so many of them voted for DISCLOSE.   They’d rather play an insiders’ political game with lobbyists who quietly go about their work than be subject to criticism in a noisy public arena they don’t control.

     

    Thus, the argument that the DISCLOSE Act would have decreased the power of K Street to the benefit of Main Street isn’t just disingenuous—it’s exactly backwards.

     

    Image source: wallyg

    Twelve-term U.S. Rep. Peter DeFazio (D-Ore.) was recently criticized in independent political ads funded by a group calling itself Concerned Taxpayers of America.  Rep. DeFazio wanted to know who was behind the ads, and he wasn’t willing to wait until the group filed its quarterly campaign finance report in October to find out.  The Washington Post reports DeFazio as wondering, “Is this a corporation? Is it one very wealthy, right-wing individual? Is it a foreign interest? Is it a drug gang?”

     

    170817449_bd1745ca45_mSo Rep. DeFazio did what any reasonable incumbent politician would do in that situation—with reporters in tow, he went to the address the group had listed with the Federal Election Commission and started shouting through the mail slot until someone agreed to speak with him.

     

    No really.

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    September
    23
    7:17 PM

    Huffington Post reporter Sam Stein tweets that the DISCLOSE Act fell one vote short of cloture.

    September
    23
    3:06 PM

    Over at Shopfloor.org, Carter Wood reports that the cloture vote on DISCLOSE will take place this afternoon at 2:15. According to a report last night by Meredith Shiner in Politico, DISCLOSE’s prospects for surviving the vote look grim:

     

    Senate Majority Leader Harry Reid (D-Nev.) announced through a spokesman that he was bringing the DISCLOSE Act back to the floor on Thursday. But it’s all but assured that he’ll not have the 60 votes necessary to overcome a threatened Republican filibuster, with moderate Republicans showing no signs of flinching in their opposition.

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    She adds that voting on DISCLOSE is something that the Senate leadership needed to do in order to kill time before the weekend:

     

    When the defense authorization bill failed to clear cloture Tuesday, Democrats needed a measure to fill floor time before the weekend, and the DISCLOSE Act was one of the few measures in their legislative arsenal that was quickly available.

     

    Having failed cloture once, the campaign bill only requires a less strict “motion to recommit” from Reid to call another cloture vote. New legislation likely would need 30 hours after being filed, 30 hours the Senate doesn’t have.

     

    So even if Democrats know they’re likely short of votes Thursday, the alternative was practically nothing.

     

    That alternative sounds pretty good to me. Indeed, I could have sworn there was part of the Bill of Rights that talks about how, when presented the opportunity to make laws that would abridge the freedom of speech, Congress should do nothing.

    I can imagine few worse ways to spend a day than watching Senators give speeches on C-SPAN 2, but that’s exactly what Sean Parnell of the Center for Competitive Politics has been doing today. Why has he been subjecting himself to this ordeal? Senators are debating the DISCLOSE Act, which will be up for a vote tomorrow.

     

    After listening to supporters of the legislation continue to make inaccurate statements both about the contents of the bill and the current state of campaign finance law, he concludes: “To the ever expanding list of reasons to vote against the DISCLOSE Act should now be added the seemingly irrefutable fact that the Senators advocating for it clearly do not understand what they are talking about.”

     

    Don’t expect this fact to make supporters of campaign finance “reform” any less enthusiastic about giving these same Senators more control over the publics’ First Amendment rights.

     

    Image source: HikingArtist.com

    Yesterday, a district court in Minnesota ruled that corporations must become political committees or PACs in order to speak.  The case is called Minnesota Citizens Concerned for Life, Inc. v. Swanson.

     

    The decisions directly conflicts with Citizens United, but it is particularly relevant to our petition for review in SpeechNow.org v. FEC.  In SpeechNow.org, the D.C. circuit ruled that an unincorporated association must become a PAC in order to speak, notwithstanding the Supreme Court’s ruling in Citizens United that corporations cannot be required to become PACs just to spend money on independent ads advocating the election or defeat of candidates.  We’ve asked the Supreme Court to accept that case for review because it conflicts with Citizens United.  Among other things, we pointed out that if the court’s can ignore Citizens United and require unincorporated associations to become PACs, there’s no reason they won’t do the same thing to corporations, thus nullifying an important part of Citizens United.  We hate to say we told you so, but it appears that that has now happened.

     

    Just to back up a bit and put all this in context, in Citizens United, the Court held that the government cannot ban corporations from paying for independent expenditures—that is, ads advocating the election or defeat of candidates.  But it also held that they can’t be required to set up separate, heavily regulated PACs in order to speak out about political elections.  “PACs,” the Court pointed out, “are burdensome alternatives; they are expensive to administer and subject to extensive regulations.”  The Court then went on to catalog all of the regulations that apply to PACs.  In short, the Court essentially held that the government may not do indirectly what it is forbidden from doing directly.  If it cannot ban spending for speech outright, it also may not so heavily regulate that spending in order to accomplish the same thing.

     

    In SpeechNow.org, which involves an unincorporated association that wants to do the same thing as the corporation in Citizens United, the D.C. Circuit struck down fundraising limits on the group because its independent spending, like the independent spending of the corporations at issue in Citizens United, posed no threat of corruption.  But the D.C. Circuit upheld the requirement that the group become a PAC in order to speak.

     

    We are now seeking review in the Supreme Court.  We’ve argued that the SpeechNow.org decision conflicts with Citizens United, and that lower courts, following the D.C. Circuit, could even end up requiring corporations to become PACs in order to speak.  The district court in Swanson has now done just that. 

     

    This is an object lesson on the impact of our incredibly byzantine campaign finance system, not only on speech but also on the courts.  Citizens United is not hard to understand, and yet the courts have already misunderstood it.  That isn’t surprising.  There are so many different rules, regulations and tests in this area, and so many conflicting cases, that it’s tough to know what the law is at any given moment.  Citizens United was a welcome dose of clarity, but to truly protect speech over the long haul, the Court will have to continue to instruct lower courts that free speech must be the rule, not the exception.

    From his excellent article on Reason.com:

     

    Last week The New York Times reported that “outside groups supporting Republican candidates in House and Senate races across the country have been swamping their Democratic-leaning counterparts on television.” The paper worried that “a relatively small cadre of deep-pocketed donors, unknown to the general public, is shaping the battle for Congress in the early going.”

     

    The Times said “Democratic officials” believed “corporate interests, newly emboldened by regulatory changes, are trying to “buy the election.” In short, the spending patterns “seem to be a fulfillment of Democrats’ worst fears after the Supreme Court's ruling in the Citizens United case.”

     

    Except that, as the Times conceded, “it is not clear...whether it is actually an influx of new corporate money unleashed by the Citizens United decision that is driving the spending chasm.” Other factors—“notably, a political environment that favors Republicans”—might be at work. In fact, most of the spending cited in the story was by rich individuals or by groups organized under Section 527 of the Internal Revenue Code, both of which were legal before Citizens United.

     

    Further undermining the thesis that the decision explains the Republicans' spending edge, the Times noted that “corporations have so far mostly chosen not to take advantage of the Citizens United ruling to directly sponsor campaign ads.” And while they might be “funneling more money into campaigns through some of these independent groups,” corporations “had the right to make such contributions before the ruling.”

     

    Jacob concludes his piece by reminding us that lots of money in politics isn’t a scary thing: “No matter how shadowy or flush with corporate dollars an interest group is, the only thing Citizens United allowed it to do is speak. Advocacy has no impact unless it persuades people.”

     

    Well said. As the Supreme Court emphasized in Citizens United, “The First Amendment confirms our right to think for ourselves.” Lots of free speech—including the speech of those who would prefer to remain anonymous—is frightening only if you believe that the public is made up of mindless automatons that are incapable of exercising that right.

     

    Unfortunately, as we’ve discussed before, that’s the view that is shared by politicians and others who champion the cause of “campaign finance reform.” If they placed the same trust in the public that the Founders did when they crafted the First Amendment, they would be celebrating, rather than demonizing, Citizens United. And they would hope that Citizens United would result in lots more political speech—not just in this election season, but in all those that follow.

    According to this report in the Washington Independent, the Senate will vote on the DISCLOSE Act tomorrow. Contrary to earlier reports, the bill will not be stripped down, but will instead be the same version that the Senate failed to pass last time.

     

    Stay tuned for further developments.

    We’ve noted before that when government controls our economic affairs, it will inevitably control our speech as well. We’ve seen that tendency in calls to prohibit companies that receive TARP funds from lobbying and speaking out about elections and in the government’s threats against insurance companies that told policyholders they might lose their coverage if ObamaCare passed.

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    In Pajamas Media, Paul Hsieh highlights the latest example of this principle at work. Kathleen Sebelius, the Secretary of Health and Human Services, recently threatened to ban certain insurance companies from participating in the insurance exchanges that ObamaCare will create. Their crime? The companies told policyholders that recent rate hikes were due to increased costs associated with the new health care law.

     

    Unfortunately, these are not just random examples of bad bureaucrats in action. Economic regulation—especially the extensive regulation we face today—must utlimately lead to restrictions on speech. The FEC and FCC obviously regulate speech, but so does the SEC, the CFTC, the FTC, and a host of other state and federal regulatory agencies. It’s inevitable, because in order to speak, we must act, we must enter into economic transactions, we must spend money, use computers, printing presses, broadcast stations and take innumerable other steps to make ourselves heard. If government regulates our economic affairs—as it does—it is only a matter of time before it will regulate our speech as well.

     

    Indeed, just last week, IJ filed a case that illustrates the connection between economic regulation and speech regulation. Washington, D.C., as well as New York City, New Orleans, and a few other cities, requires a license to operate a tour guide company. Licensees must take a test to ensure that they are sufficiently knowledgeable to take people on tours and talk about their cities.

     

    A license to speak? Isn’t that a prior restraint?

     

    Well, yes. But it is also an occupational licensing law, and supporters of the law point out that we license plumbers, barbers, exterminators, cab drivers, funeral directors, and a host of other occupations, so why not tour guide companies. Of course, using the same logic, why not license reporters, authors, publishers, and bloggers as well? They’re all practicing a trade and are just as likely to speak out of ignorance, rather than erudition, as tour guide operators.

     

    The answer is that the First Amendment still provides a ray of freedom in our otherwise regulated world—at least for those lucky enough to make their living speaking and writing. But that won’t last if we allow government to regulate everything else.

     

    As my colleague Bob McNamara puts it in our video about this case, “The more occupational licensing restrictions grow, the more rights as basic as the right to talk about things will shrink.”

    Following up on my colleague Bert Gall’s discussion of seemingly unkillable frights, the Fair Elections Now Act (FENA) is also showing signs of life again.  FENA, one may recall, is the name for a number of bills that operate from the assumption that if you preemptively shower politicians with the people’s money, they will not be tempted to be corrupt.  Perhaps realizing that the post-election environment will be hostile for government subsidies for unsuccessful enterprises, Congress is giving the idea of bailing itself out one more try.  On Thursday, September 23, 2010, the House Committee on Administration will vote on yet another version of FENA.

     

    The current version of FENA does not include an obviously constitutionally-problematic “matching” or “rescue” funds provision, like the systems recently struck down in Connecticut and Florida and the Arizona system recently stayed by the U.S. Supreme Court.  That does not mean that the various versions of FENA do not contain serious constitutional problems.  Moreover, there is little evidence that using the people’s money to subsidize the campaigns of politicians provides any of the myriad and vast benefits promised by campaign finance reformers.

     

    When the government is spending trillions and sinking deeper into destabilizing debt, spending money the government doesn’t have to subsidize political campaigns seems like a bad joke.  At best, it displays a level of denial and entitlement by our elected officials that is almost delusional.  The members of the Committee should do themselves, the Constitution, the federal budget, and the taxpayers a favor and vote this idea down once and for all.

    From CCP's press release, which provides a detailed breakdown of the results:

     

    The Center for Competitive Politics released the results of a national poll today showing that likely voters are deeply skeptical of proposed campaign finance disclosure regulations, think current disclosure thresholds are too low and oppose the special deals given to unions in the DISCLOSE Act.

     

    As Glenn Reynolds would say, read the whole thing

    What does the DISCLOSE Act have in common with movie monsters like Jason Voorhees and Freddy Krueger? No matter how many times it appears to die, it keeps coming back to life. The Hill reports that Senate Democrats are preparing to force—as early as next week—a vote on a “bare-bones” version of the DISCLOSE Act that they hope will appeal to Senate Republicans like Susan Collins and Olympia Snowe, who have supported campaign finance restrictions in the past.

     

    This “bare-bones” version, although it will not include things like prohibitions on political spending by companies with more than twenty percent foreign ownership, will still have “disclosure” mechanisms designed to discourage corporations from speaking during election season. Thus, DISCLOSE remains, as it always has been, a cynical assault on First Amendment rights by politicians who are afraid of corporations speaking out against their reelection.

     

    As First Amendment advocates work again to put a stake in DISCLOSE’s heart, they should make sure, once and for all, that—unlike with Jason and Freddy—there is no possibility of a sequel.

     

    Image source: Valerie Everett

    TeaParty-AliceIn a recent article in National Journal, Jonathan Rauch explains that the “Tea Party” is not one organization run by a top-down command structure, but rather a large number of local organizations across the country.  Almost all of them are completely run by volunteers, and they do a multitude of different things: recruit candidates for office, hold rallies, network with other activists, etc.  Many do not even have a formal organizational structure, but are merely a band of interested people who get together to talk and strategize, then take it upon themselves to accomplish various goals and see if others want to help out.

     

    One particularly telling anecdote is the following:

     

    Asked how many neighborhood tea parties exist in the Dallas area, another citywide coordinator replied, “I don't even know.”

     

    The coordinator does not know because “tea parties” are often just groups of people who get together and start engaging in political activism.  Their existence ebbs and flows, with groups constantly forming and disappearing.  Groups frequently coordinate, but often they do their own thing.

     

    What the article does not mention is that much of what these various groups do is potentially subject to campaign finance laws.  For instance, if the members of a small grassroots tea party group want to put up signs for a candidate they like, under federal law (for a Congressional race) and the law of most states (for state and local races), they need to report their spending on those signs.  If the “group” (I use quotation marks as it could just be a few people who belong to a Meetup group or even an email list) is coordinating the effort with other “groups,” then all of the people involved may be subject to complex administrative and reporting requirements that can be navigated safely only with the aid of lawyers and accountants.  Much of this activity, luckily, flies under the regulators’ radar, but the potential for liability is widespread and ominous.

     

    All of this goes to show that campaign finance laws are not designed for a decentralized bunch of activists like the Tea Party movement.  But the application of campaign finance laws to the activities of these citizens is more than just another example of the government applying antiquated laws to a world they weren’t designed for.  More importantly, these laws threaten to wrap tea partiers—as well as activists of all political stripes—in so much bureaucratic red tape that they can’t speak.  While that’s a result that most professional politicians facing reelection this November would probably like, it’s one that those of us who care about keeping political speech in this country robust should abhor.

     

    Image source: Toronto Public Library Special Collections

    Last week, Paul Sherman blogged about how campaign finance laws are often used as weapons by opponents in political campaigns. That shouldn’t surprise us a bit. Businesses often use regulations to gain an upper hand against their competitors. It’s hardly surprising that competitors in the political marketplace do the same thing.courtroom

     

    Examples of this sort of thing abound. Kim Strassel of The Wall Street Journal recently reported on how opponents of Washington senatorial candidate Dino Rossi have been dogging him for years with lawsuits alleging violations of campaign finance laws. Conveniently, these suits tend to become active right around election time.

     

    Both political parties give as well as they get when it comes to the strategic use of campaign finance laws. But that doesn’t make these abuses acceptable. For one thing, the laws are just as likely to be used against ordinary Americans as professional politicians.

     

    A few years ago, the Institute for Justice defended an initiative campaign in Washington State that was sued for failing to disclose the on-air commentary of two talk radio hosts as “in-kind” contributions. The hosts supported the initiative, which sought to repeal a controversial gas tax, and they had the temerity to say so on the air. A number of local governments who stood to gain millions from the gas tax objected and expressed their disdain by suing the initiative campaign for allegedly violating disclosure laws.

     

    The same thing happened to a group of neighbors outside of Denver in 2006. They opposed an initiative to annex their neighborhood into the adjoining town. For talking to neighbors, sending out post cards, and putting up lawn signs, they were sued for failing to register as an “issue committee” under Colorado law. Not surprisingly, the supporters of annexation were the ones who filed the suit. IJ is also litigating this case, which is currently on appeal before the Tenth Circuit Court of Appeals.

     

    Campaign finance laws have done next to nothing to take the corruption out of politics. But they’ve done a great deal to put the lawyers and regulators in. That may provide for great political theater on occasion, but it doesn’t exactly inspire confidence in our electoral system, and it’s no way to protect free speech.

     

    new-yorkThe Holztman Vogel blog reports that New York City Public Advocate Bill de Blasio has a new front in his efforts to dissuade associations of Americans from exercising their First Amendment rights. A new website established by the Public Advocate condemns companies unless they pledge to not “tak[e] advantage” of the Supreme Court’s decision in Citizens United. In other words, he is using the taxpayers’ funds to castigate companies for retaining their ability to exercise their First Amendment rights.

     

    The website allows the visitor to scroll over the names of different companies divided into whether they have publicly pledged to refrain from speaking about politics. If a company has not sufficiently renounced its First Amendment rights to the Public Advocate’s satisfaction, the visitor is encouraged to “reach out and demand that companies which can still use treasury money in elections reform their spending policies.” No one is really sure what the Public Advocate's actual duties are, exactly, although the current holder of the office apparently believes part of his responsibilities is to spend the taxpayers’ money bullying organizations into renouncing their constitutional rights.

     

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    September
    7
    2:42 PM

    The Democratic Governors Association (DGA) has filed a complaint with the Ohio Elections Commission, accusing Fox News of violating Ohio campaign finance laws.  Fox News’ supposed crime?  While Ohio gubernatorial candidate John Kasich was being interviewed by Bill O’Reilly, Fox News displayed the URL for Kasich’s campaign website under Mr. Kasich’s image for approximately 1 minute and 30 seconds of the 6 minute interview.

     

    Here’s a video of the interview, which the DGA apparently believes is so damning that they’ve uploaded it to YouTube themselves.  Kasich's URL appears 1:34 into the video:

     

       

     

    If you watch the video you’ll notice that the chyron at the bottom of the screen cycles through several different versions, including “John Kasich (R), Running for Ohio governor,” “John Kasich (R), Author of “Every Other Monday,” and “John Kasich (R), KasichforOhio.com.”

     

    That last one is what has the DGA up in arms.  The DGA claims that by displaying Kasich’s website, Fox News made an illegal “in-kind contribution” to Kasich’s campaign.  They also claim that Fox News should have included a disclaimer beneath the graphic, labeling it as a paid political advertisement.

     

    The DGA’s complaint is absurd, and the implications if it were taken seriously are astounding.

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    censoredFollowing up on the post below by my colleague Anthony Sanders, Ohio Senator Sherrod Brown’s speech to the Ohio State Chapter of the American Constitution Society assailing the Citizens United ruling had a revealing theme. Much of what he said was the usual apocalyptic hysteria about the ruling that Brown has made before. However, Brown also suggested why he believed the ruling was so problematic: he believes it will make it harder to pass legislation he thinks is important. In other words, Brown believes the government must suppress speech in order to prevent some groups from interfering with his ability to get the policy outcomes he wants.

     

    This view is not new, unfortunately. One can easily disregard Brown’s simplistic Manichean worldview, where corporations run by autocratic robber barons (undoubtedly all fat men sporting walrus mustaches and wearing waistcoats and top hats) frustrate the noble legislature’s selfless quest for social democracy by manipulating the beliefs of a sheep-like public. More fundamentally, though, it is hard to find a position more antithetical to the First Amendment than the argument, “we need to suppress speech so the government has an easier time doing what it wants.”

    The First Amendment prevents the government from abridging free speech and the law at issue in Citizens United did just that—it banned books, pamphlets, advertisements, etc. because of the identity of the speaker. The fact that the Court struck down a law that silenced speakers with which government officials often disagree is precisely why the case was so important for the continued vitality of the First Amendment. Perhaps Senator Brown’s real problem with the case is that it establishes that if the First Amendment protects anything, it protects political speech—even the speech of those who disagree with wanna-be censors like Sherrod Brown.