We’ve pointed out before that if modern disclosure laws had existed 200 years ago, Madison, Hamilton and Jay would not have been able to publish The Federalist Papers without filling out a lot of forms first. The good folks at Reason have put together a faux campaign ad making the same point.
This is all very amusing, of course, but few people realize just how strong the case for applying disclosure laws to The Federalist Papers would have been. Disclosure laws apply to issue elections, and whether the new constitution should be ratified was undoubtedly the most important issue of the day. It was also highly controversial, with each side making heated accusations about the other. For example, Amos Singletary of Massachusetts claimed during his state’s ratification debate that the constitution was supported by “lawyers and men of learning, and moneyed men that talk so finely, and gloss over matters so smoothly” who want to “get into Congress themselves” and “ be managers of this Constitution, and get all the money into their own hands.”
Alexander Hamilton, who came up with the idea for The Federalist Papers, chose “Publius” as his pseudonym after Publius Valerius, the celebrated founder of republican government in Rome. In fact, the Federalists even co-opted on of their opponents’ best arguments in taking on the label “Federalists,” which, before they adopted it, typically referred to someone who supported state sovereignty and opposed centralization. You can read about these and other interesting facts in Isaac Kramnick’s excellent introduction to the 1987 Penguin edition of The Federalist Papers.
So let’s see, a group of elite political insiders operating under a benign-sounding name wrap themselves in the banner of one of their opponents’ best arguments against them and then support the adoption of a law that will profoundly affect the future course of their government. Sounds like of a campaign finance regulator’s nightmare. And yet, even without disclosure laws and government oversight, the people of the time were able to figure out what the arguments were and to choose accordingly. Imagine that. Maybe there’s a lesson in there for our modern age.
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Over at the Center for Competitive Politics blog
, Brad Smith has a great post
on how SpeechNow Groups are making some races more competitive by helping challengers overcome the natural advantages of incumbents. Go read it right now.
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White House Press Secretary Robert Gibbs said something quite extraordinary the other day. In defending President Obama’s attacks on the U.S. Chamber of Commerce’s temerity to actually engage in political speech Gibbs remarked:
"There's no reason to back off," he said. "If there are organizations raising tens of millions of dollars who won't tell us who their donors are, my guess is they're not telling us for a reason -- because they have something to hide."
Gibbs’s comments come in the context of the White House’s support for additional disclosure requirements, such as the DISCLOSE Act that we have discussed on this blog many times. Thus, Gibbs is arguing that groups that engage in public debate about elections should be legally required to tell us who they get their money from, and if they don’t it must be evidence of something sinister.
I wonder if Gibbs thinks the NAACP was such a sinister group in the 1950s when it fought the State of Alabama over its membership lists. In a landmark decision the Supreme Court unanimously concluded that the state’s attempt to compel the NAACP to produce the lists violated the right to freedom of association. It said “Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.”
The NAACP’s cause of racial equality was, of course, a “dissident belief” in 1950s Alabama. Many other beliefs are often “dissident,” such as opposition to the invasion of Afghanistan after the 9/11 attacks, opposition to the minimum wage, and defending the right to burn the American flag. Beliefs opposed to each other can even be dissident at the same time, such as groups that are for/against same sex marriage. Perhaps the most obvious example of a group that might fear retribution is one that speaks out for or against candidates for office, since candidates can often make life miserable for those who opposed them during the election. Groups that advocate all of these views have an interest in protecting the anonymity of their members and donors. This reflects a long tradition of protections of anonymous speech that extends back to, and before, the anonymously published Federalist Papers.
The point is, groups that spend money on speech often do have “something to hide.” They want to protect themselves and their associates from the powerful people they’ve criticized—people like Robert Gibbs and his boss. Certainly, everyone has the right to criticize groups with which they do not agree. That’s a freedom the First Amendment guarantees just as much as the freedom to speak anonymously. But no one has the right to use the government to force others to disclose their members or funding sources so they can attack and try to intimidate them into silence. As the Supreme Court has said, anonymity “exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation - and their ideas from suppression.”
People like Gibbs are free to discount speech because it is anonymous or its funding sources are kept private, just as others are free to ignore that issue entirely and focus on the issues and the arguments made. As the Supreme Court made clear in Citizens United, the decision that lead to this battle, “The First Amendment confirms the freedom to think for ourselves.” If Gibbs and his boss had more confidence in the ability of Americans to do that, perhaps they would turn their attention to more pressing issues.
Image Source: Randy
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In the spirit of Citizen Speech month, MakeNoLaw.org is proud to present story about a political entrepreneur featured in the Institute's recent Keep Out report:
Diana Hsieh was a blogger when few people knew what the term meant. A passionate advocate for individual rights, she launched her now-popular blog Noodlefood in 2002 while working as a programmer as a way to get herself to write regularly on political and philosophical issues. Today, Diana presides over a mini-empire of online activism including blogs, discussion groups and even a small nonprofit. A recent Ph.D. in philosophy, Hsieh regularly speaks at philosophy conferences, writes articles and podcasts on various subjects—and still manages to find time to care for a small farm’s worth of dogs, cats and horses at her home in Sedalia, Colorado.
"Although I’m not a political junkie, I just can’t bear to remain silent on some issues," said Hsieh.
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If you follow campaign finance, you’ve undoubtedly heard of the latest trumped-up non-scandal involving the U.S. Chamber of Commerce. President Obama and others have accused the Chamber of using money from foreign affiliates to fund ads attacking Democratic candidates.
As both PolitiFact and FactCheck.org report, there is no evidence to support these charges. But apart from the veracity of the charges, this latest round of campaign finance hysteria raises an important question: Why should we care if foreign money is paying for political ads?
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On Monday, the Washington Post ran an article linking recent increases in anonymous electoral spending to the Supreme Court’s recent ruling in Citizens United v. FEC. But as I explain in a letter to the editor of the Post, Citizens United has little to do with these increases:
Nonprofit corporations have been allowed to spend money in elections since 1986, and they had to disclose only contributions that were “earmarked” for political advertising. The only thing Citizens United changed: Corporations and unions are now allowed to give money to these nonprofits. But this is a little change, because corporations and unions were already permitted to anonymously fund issue ads discussing political candidates.
Those looking for an explanation for the increased spending on this election should focus on congressional unpopularity, not Citizens United.
But you don’t have to take our word for it. Over at Slate, political blogger Christopher Beam has reached essentially the same conclusion.
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Senator Russ Feingold, co-sponsor of the Bipartisan Censorship Act of 2002 (otherwise known as the Bipartisan Campaign Finance Reform Act of 2002 or “McCain-Feingold”), has publically stated that he does not want his party’s senatorial campaign committee to pay for TV ads on his behalf, asserting "That's frankly not who I am. I don't want to win that way."
Well, great. That’s his choice to say “Please don’t speak out on my behalf,” but it’s also his party’s choice whether to run their own ads or not. It is also the choice of any other group to speak out about Feingold’s senate race. That’s kind of how the First Amendment is supposed to work. It gives all of us—not just politicians who are up for reelection— choices about whether to speak, when to speak, who to speak to and what we speak about.
Sadly, that’s not a principle the Senator embraced when he chose to sponsor and vote for legislation that placed a whole host of limits on those who want to exercise their right of free speech. If he had taken the words of the First Amendment seriously, he would have realized that’s the one choice the First Amendment does not allow him to make.
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Yesterday, the Milwaukee Journal Sentinel [article] reported that Rice Lake Mayor Romaine R. Quinn is scheduled to appear in court on Oct. 27 for accepting a $1,609 campaign contribution, which vastly exceeded the legal limit of $250.
But Mayor Quinn, who is only 20 years old, didn’t get this contribution from some shady developer or local businessman. He got it from his mom, Penny Hanson.
No, we aren’t making this up.
It turns out that neither the Mayor nor his mom knew about the $250 limit. Although he doesn’t face any criminal liability, Mayor Quinn will probably have to pay a sizable fine.
Campaign finance laws are unconstitutional and counterproductive, but oftentimes that is obscured by their sheer absurdity. Who in the world would think that a candidate might be corrupted by his own mother? People have issues with their parents on occasion, but they typically don’t involve influence peddling. Clean your room; wear clean underwear; choose a nice girl to settle down with—perhaps. Here’s $1,600, now give me that contract for garbage collection—not likely.
Unfortunately, courts typically don’t recognize a "this-is-idiotic" defense. Even when courts do dismiss these kinds of complaints, it’s after the accused is put through the proverbial ringer. That’s a great reason to oppose campaign finance laws: They do nothing to clean up politics, but quite a lot to scare Americans out of speaking. And that’s why we at the Institute for Justice have launched our nationwide Citizen Speech campaign.
Image Source: Misterbisson
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