Congress Shall Make No Law...

The Philadelphia Inquirerand its on-line site,, have been covering a story that features law makers taking large amounts of money, making promises for votes, a potential cover-up and a politician contemplating suing the newspaper that broke the story.


The story seems to have it all, from a campaign finance reformer’s standpoint. Politicians stuffing money into their pockets from a shady character, undercover recordings, promises of changing votes for money and the suggestion of a lawsuit against the news organization by the elected official at the center of the story. It was precisely this kind of scandal that led to Arizona’s “Clean Elections” system and the Federal Election Campaign Act. Normally, this would lead to reformers calling for new laws to “clean up” Pennsylvania politics (putting aside the fact that taking bribes is already illegal under Pennsylvania law).


Oddly, however, there has been little coverage of this story by the most strident organizations in favor of campaign finance laws. For instance, on the date that covered the threat by the elected official at the center of this story to sue for defamation, the New York Times featured twostories about the Koch brothers engaging in legal political activities. As of the date of this blog, searches on the Times, Common Cause and Public Citizen websites do not reveal any stories covering the facts uncovered by, but dozens of entries about the Kochs.


It appears to be a mystery as to why some campaign finance reformers would ignore such a relatively rare opportunity to promote their view of American politics as being awash in a sea of bribery, until one realizes that the elected official in question, Pennsylvania Attorney General Kathleen Kane, is an up-and-coming Democratic politician with an eye on federal office. On the other hand, the Koch brothers are most associated with (legal) financial support for Republican officials and policies.


Unwittingly, the selective outrage of some campaign finance reformers betrays one of the dirty secrets of attempts to regulate political speech, namely, that it is human nature for people to treat those with whom they agree better than those with whom they disagree. Played out in the context of law enforcement, giving the government power to prosecute people for participating in peaceful political activity means that, often, the government will reserve its zeal for those who oppose whomever is in power—Democrat or Republican. If the New York Times will engage in selective outrage, why wouldn’t the Federal Election Commission or the Justice Department? And, if that is the case, why would people in a politically diverse nation want to give the government power to prosecute political disagreements?



Over Christmas break, the New York Post published my op-ed on the Moreland Act Commission and what more we can expect from them in the coming year.  Also check out the op-ed in the Albany Times-Union from Professors Jeffrey Milyo and David Primo regarding the Commission’s preliminary report from earlier in the month.  The bottom line is that the solution to actual corruption in New York politics is not going to be achieved with spending taxpayer money subsidizing politicians or further restricting free speech rights. 

President Obama urged his supporters to sell the Affordable Care Act during this year’s Thanksgiving meal.   He received significant criticism from many for what was perceived to be an attempt to inject politics into a time for family and friends.  But even the architect of “Health Care for the Holidays” probably would have recoiled from a Thanksgiving Tweet from the Center for Responsive Politics’ site as having gone a step too far: 



“Got a politically inclined relative at the Thanksgiving table? See which candidates they have supported:



Putting aside the question of why someone thinks snooping into their relatives’ political activities at the dinner table is remotely good manners, this Tweet nicely summed up how hollow the “follow the money” rhetoric of the pro-regulation side of the disclosure debate is.  Here, (an organization whose logo is an unblinking eyeball, like some campaign finance reform edition of the Eye of Sauron) wanted people to “follow the money” not to uncover corruption or influence, but to get information on political giving and use it against family members.  While they speak of disclosure as a tool to battle the influence of large donors, pro-regulation organizations seem untroubled (and often encouraged) by the fact that forcing people to disclose even the most picayune political activity and posting that information on a publicly accessible database leaves practically all political donors open to retaliation and coercion by their neighbors, bosses, customers, shop stewards, and even their family.  Surely, having a relative blurt out one’s political giving at the Thanksgiving table probably would do little to encourage even modest giving in the future, which was perhaps the intended result.  In other words, any “transparency” that resulted from this Tweet almost certainly did not reduce corruption, but it probably helped to ruin at least a few Thanksgivings.   

Two top-notch organizations have added new blogs that will discuss campaign finance issues, among other things.


First, the Executive Branch Project at the Federalist Society for Law and Public Policy Studies has created the Executive Branch Review Blog, which addresses all things executive branch. Here’s the description of the effort:


An increase in Federal executive branch regulatory activity – whether through executive order, formal or informal administrative agency action – has been noted by many across the country. In launching Executive Branch Review, the Practice Groups of the Federalist Society seek to prompt a national debate about whether there has been an uptick in such regulatory activity, and, if so, with what consequence. The project will provide an objective resource that identifies major government activity, and provides a forum for debate and discussion about whether such regulation constitutes a form of legal and regulatory overreach.


As both the Federal Elections Commission and the Internal Revenue System are both executive agencies, the blog promises to have some terrific insight on the issues touching upon (if not consuming altogether) these organizations.


Second, Perkins Coie LLP’s Political Law group has begun a blog on election law, In the Arena. The group is one of the best and most active in the country and the blog reflects the viewpoint of pragmatic practitioners and a realistic approach to what regulation can and cannot do. (Full disclosure: I was an attorney at Perkins Coie before coming to IJ.)


For people who follow campaign finance and constitutional issues, both are well worth a bookmark.

Fans of the Institute for Justice and should tune in tonight at 9:00 p.m. ET to Dr. Diana Hsieh's live Internet radio show, Philosophy in Action.  My colleague Paul Sherman will be the guest, discussing campaign finance, the First Amendment, and the 2012 election.  Here's more information on the show:


Many people support restrictions on spending in elections, particularly by corporations, in the name of "transparency" and "accountability." Institute for Justice attorney Paul Sherman takes a very different view. He claims that any restrictions on campaign spending are violations of freedom of speech, and he has successfully argued that view in courts across the country.


To join the live broadcast and its chat, just point your browser to Philosophy in Action's Live Studio a few minutes before the show is scheduled to start. By listening live, you can share your thoughts with other listeners and ask follow-up questions in the text chat.


If you miss the live broadcast, you'll find the audio podcast from the episode posted in the archive: Radio Archive: 9 January 2013


For more about Philosophy in Action Radio, visit the Episodes on Tap and Show Archives.

With Election Day mere hours away, the Campaign Legal Center is taking a final swipe at the amount of money Americans are spending communicating with voters.  Aghast that total election spending may pass $6 billion, the Center crunches the numbers on what that money could buy if it weren’t spent on political speech:


With $6 billion we could create 103,500 jobs in the United States.


With $6 billion you could buy 171,428,571,429 gallons of gas for your car - that's enough gas for 155,844,156 American households.


With $6 billion you could buy 1,734,104,046 gallons of milk - enough for 8,627,383 people for an entire year.


With $6 billion NASA could build 2 new Mars Rovers.


With $6 billion, 1.5 million students could receive Pell Grants to make college more affordable.


We won’t quibble with CLC’s numbers (except to note that milk is not 100 times more expensive than gasoline). But we will note that CLC’s list omits something else that could be done with $6 billion.


With $6 billion, we could fund the entire federal government . . . for 14 hours.


In the coming year, the federal government will spend $3.8 trillion.  That’s really big money.  And as long as the federal government controls that kind of money, there will be no shortage of individuals and groups willing to spend money to express their opinion on who should be holding the purse strings.  Indeed, that’s why much of the growth in political spending has been driven by the growth of the federal budget.


At IJ, we don’t think $6 billion dollars is too much money for Americans to spend on political speech.  In fact, we don’t think the amount of money Americans choose to devote to political advocacy is any of our business.  In a free country, speakers can decide for themselves how much of their money and time they wish to spend making their views heard.  But for those who do think that $6 billion could be put to better use, the solution is clear:  Unless you reduce the amount of politics in money, you’ll never reduce the amount of money in politics.

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.

The First Amendment Center has published an interesting post discussing important solitary dissents in the history of First Amendment law. Among their selections are Justice Harlan Stone’s dissent in Minersville School District v. Gobitis, arguing that public school students could not be required to salute the flag or recite the pledge of allegiance.  Although Stone lost that battle, he ultimately won the war—his view became the law of the land just three years later in West Virginia Board of Education v. Barnette, which reversed Gobitis.


Absent from the list, though no less noteworthy, is Justice Clarence Thomas’ solo dissent in Citizens United v. FEC. Although that case produced a well-known 5-4 split on whether corporations and unions should be permitted to fund political advocacy, it also produced an 8-1 split on whether the group Citizens United could be forced to disclose the identities of those who funded its political speech. Justice Thomas alone dissented, arguing forcefully that “Congress may not abridge the ‘right to anonymous speech’ based on the ‘simple interest in providing voters with additional relevant information.’” It remains to be seen whether Thomas’ view of anonymous speech will ultimately prevail, but IJ is not alone in hoping that it will and fighting to make that happen.


For more on Justice Thomas’ arguments in support of anonymous speech, check out this short video featuring Cato Institute scholar Nat Hentoff: