Congress Shall Make No Law...

If you haven't seen my colleague Bill Maurer's recent article in the Weekly Standard about "Campaign Finance Myths," it's definitely worth a read—particularly if you want a quick primer on why everything "reformers" are saying about Citizens United is wrong.

wisconsinLate yesterday the Wisconsin Supreme Court agreed to take a case involving new state campaign finance rules.  We’ve reported on the case before, see here and here, which involves regulations that, among other things, require anyone spending more than $25 on a communication that mentions a candidate to register with the government.


This is great sign that the Wisconsin Supreme Court is taking seriously the threat that disclosure laws present to ordinary citizens.  The Institute for Justice filed an amicus brief in support of the court taking the case, arguing that Wisconsin’s new rules present a major threat to citizen speech.


The case is set for oral argument on March 9, 2011.  We will continue following the case closely.

All last month our friends at the Cato Institute held an on-line symposium on campaign finance reform and disclosure, entitled “Following the Money: The law and Ethics of Campaign Finance Disclosure.”  The contributors are UC Berkley Professor Bruce Cain, Electionlawblog’s Professor Rick Hasen, Cato’s own John Samples, and Common Cause’s Nikki Willoughby.  Check out the interesting debate.

Professor Rick Hasen has started an interesting debate on this subject with a recent blog post on Summary Judgments, the Los Angeles Faculty Blog of the Loyola Law School. He believes that the U.S. Supreme Court’s decision to hear IJ’s and the Goldwater Institute’s challenges to the matching funds provisions of Arizona’s “Clean Elections” law will result in, as the title of his post says, “An Effective End to Public Financing.” Professor Hasen graciously linked to IJ’s response to his post over at Election Law Blog. Check it out.

This morning, the U.S. Supreme Court granted cert in IJ's challenge to Arizona's "Clean Elections" system, which attempts to suppress the speech of privately financed candidates and independent groups through the use of "matching funds." A copy of IJ's press release is here, and an early news story on the cert grant is here. We'll have more on this case, as well as the general topic of government-funded elections, as it progresses.


Over at Cato@Liberty, Roger Pilon’s takedown of the NYT editorial board’s latest broadside against Citizens United is definitely worth a read.

As my colleague Paul Sherman notes, we won an important victory for free speech last week when the Tenth U.S. Circuit Court of Appeals ruled in Sampson v. Buescher that Colorado’s disclosure laws for grassroots groups that speak out about ballot issues violated the First Amendment.


The case started when our clients, six neighbors who opposed the annexation of their neighborhood into the nearby town of Parker, Colo., were sued by the chief proponent of annexation for failing to register as an issue committee and disclose all of their activities to the state. Colorado allows not only the Secretary of State but also private citizens to enforce the campaign finance laws, so anyone can file an action against someone they claim has violated the laws and drag them into court. The rationale is that the Secretary of State might not enforce the laws against political allies, so the drafters of the law thought the solution was to give enforcement authority directly to “the people.”


Unfortunately, “the people” can be just as mendacious as anyone else. Consider the reaction to the Tenth Circuit’s decision of one of the people who sued our clients under the campaign finance laws:


“We did that action because those (annexation opponents) refused to debate us,” said David Hopkins, an annexation proponent who filed the original election complaint in 2006. “The purpose of the law is to get the debate on what the issues are and not just have a group putting out propaganda without accountability.”


The campaign finance laws are said to serve a number of purposes: They prevent “corruption”; they elevate the debate by requiring speakers to stand by their messages; they prevent the “distorting effects” of large expenditures of money; they equalize voices; they promote democracy.


But when you strip away all the good government platitudes, the motivation behind campaign finance laws often amounts to little more than the anger and frustration expressed in a comment such as Mr. Hopkins’s: They refused to debate us, so we sued them.


Consider the congressional debates over McCain-Feingold. Despite all the anti-corruption rhetoric that led to its passage, the members who supported it were far more concerned about the alleged evils of last-minute attack ads. Here’s a representative quote from Senator McCain himself:


If you cut off the soft money, you’re going to see a lot less [attack advertising]. Prohibit unions and corporations [from spending money on independent ads] and you will see a lot less of that. If you demand full disclosure for those that pay for those ads, you’re going to see a lot less of that . . . .


And all we heard during the run-up to the recent election was that groups were spending “obscene” amounts of money and “buying elections” with all of their advertising, as though voters are too stupid to make up their own minds.


If the case had not made clear that groups are entitled not only to spend unlimited funds for independent advocacy but to raise unlimited funds for that purpose as well, is there any question that so-called reform groups would have filed a slew of FEC complaints against anyone who dared to make independent expenditures without becoming a PAC or complying with contribution limits? Indeed, that happened after the 2004 elections, when independent groups like the Swift Boat Vets and spent huge sums on electoral advocacy.


The fundamental purpose of campaign finance laws has been nowhere better expressed than by Yale law professor Owen Fiss in his book The Irony of Free Speech. As Fiss put it, the government may “have to silence the voices of some in order to hear the voices of . . . others. Sometimes there is simply no other way.”


It shouldn’t surprise anyone that when we open up free speech to regulation, those who enforce the laws will impose their own ideas of what is “fair” on the process. Indeed, if “fairness” is the purpose, why isn’t suing someone because they won’t debate you entirely appropriate?


There are many, many things wrong with campaign finance laws. We can now add to the list that they turn campaigns into a sort of Hobbesian war of all against all, as political opponents decide to play out their campaigns in courts of law, rather than in the court of public opinion.


The Framers gave us the First Amendment in part to prevent all this. Perhaps it’s time to take it seriously.



In an editorial about a recent Supreme Court argument, the New York Times argues:


If the Supreme Court renders justice in a case it heard this month, Schwarzenegger v. Entertainment Merchants Association, it will strike down a California law barring the sale or rental of violent video games to anyone under 18. That would end a violation of free expression—but not prevent the states from finding other ways to support parents who do not want their children to play violent games.


In other words, the corporations that produce and sell these games have a First Amendment right to do so.  If the state is concerned about the effect this speech has on the community, it must find a way to address those concerns that does not interfere with these rights.


Now let’s rewind to January 21, 2010, when the Times’ editorial page blasted the Supreme Court’s landmark ruling in Citizens United v. FEC.  As the Times described Justice Kennedy’s opinion:


The majority is deeply wrong on the law. Most wrongheaded of all is its insistence that corporations are just like people and entitled to the same First Amendment rights. It is an odd claim since companies are creations of the state that exist to make money. They are given special privileges, including different tax rates, to do just that.


For those of us who believe that the First Amendment was designed to protect all speech—and to protect important, influential speech most especially—this contradiction is baffling.  Whatever one’s view on the Schwarzenegger case, it is laughable to suggest that selling video games to children that “graphically depict mutilation, torture, rape and murder” is an act entitled to greater First Amendment protection than distributing political documentaries like the one at issue in Citizens United.  This contradiction is, nonetheless, totally of a piece with the Times’ general view of the First Amendment, which allows political documentaries to be banned while affording the greatest protection to the least meaningful, most inarticulate speech.