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The Washington Post reported yesterday that the world was not flat. Actually, the Post reported something just as obvious: Money doesn’t buy elections.
The Post, using information from the Center for Responsive Politics, reports that “out of 58 candidates who used $500,000 or more of their money on federal races in 2010, fewer than one in five won. Eight of the top 10 self-funders this cycle lost . . . .”
In a follow-up piece, the Post admitted that this is no surprise: “The lesson learned Tuesday is one we seem to relearn every election cycle. Money only buys candidates the ability to get their message out. If that message neither resonates with nor is to the liking of voters, they will not vote for you.” Of course, none of this is news to Make No Law readers. Robert Frommer and Steve Simpson have already covered this ground.
Say this much for Professor Randy Salzman’s call for a ban on 30 and 60-second political ads in the Christian Science Monitor: at least he’s honest.
We’ve made the point many times before that campaign finance laws will inevitably lead to censorship. If people cannot support their favored candidates in one way, they will find others. Ban large direct contributions to candidates, and supporters will run radio and TV ads. Ban those, and they will switch to newspaper ads or to the Internet. Ban those and they will use billboards and yard signs. The only way to control money in campaigns is to ban or regulate every form of mass communication available.
And, in fact, this is precisely what happened under campaign finance laws until the regulations reached films and the government suggested that books were next on the chopping block. The Supreme Court blinked, and Citizens United was the result.
Salzman recognizes that people will inevitably find ways around campaign finance laws, but instead of rejecting the laws, he wants us to reject free speech. According to Salzman, the only way to realize the true purpose of the First Amendment is to ban the “scalding, manipulative speech of emotional political ads.” Salzman proposes a law imposing a minimum time requirement of at least 30 minutes for all broadcast and cable political ads.
But why would that solve anything? Placing a minimum time limit on ads would simply price some candidates out of the advertising market altogether, which would inevitably lead to calls for limits on what the networks could charge for airtime or restrictions on the amount of ads well-funded candidates could run. And the increased cost of advertising would put a high premium on candidates appearing on news broadcasts and talk shows, which would likely necessitate some sort of fairness doctrine, lest some candidates get more airtime than others. And what happens when candidates start spending more on print and Internet advertising? Are the professor Salzmans of the world going to be satisfied with a ban on only short radio and tv ads?
Ultimately, the problem with campaign finance laws is not that they don’t ban enough speech, but that they regulate speech at all. Once you start down the road to censorship, there’s no logical stopping point.
That’s why we have a First Amendment—to stop regulation of speech before it starts. Contrary to Professor Salzman, the premise underlying the First Amendment is not that speech will lead to any particular result—whether we conceive that as perfect competition in the marketplace of ideas, enlightened democracy or more civil political campaigns. The premise of the First Amendment is that freedom of speech is a right and that individuals get to choose for themselves what to say, hear and think. Or, as the Court put it in Citizens United: “The First Amendment confirms the freedom to think for ourselves.”
You know there is something too complex about campaign finance regulations when someone as smart as political entrepreneur Diana Hsieh runs into trouble in her dealings with the law.
Hsieh details some of the difficulties of complying with Colorado’s campaign finance laws for ballot issue committees on her blog. Hsieh, who is featured in our most recent study of campaign finance laws, is a Colorado activist and blogger who got wrapped up in campaign finance red tape when she decided to speak out against Colorado’s Amendment 62. Hsieh co-wrote a policy paper arguing against passage of the Amendment, which she and her co-author Ari Armstrong funded with a pledge drive on Hsieh’s blog. But because they intended to raise over $200 to fund their effort, they were defined as an “issue committee” under Colorado’s campaign finance laws and had to register with the state and comply with complex and onerous administrative and reporting regulations. As Diana points out on her blog, while the regulations can often look straightforward, the devil is often in the details: “[T]he laws are just not clear. As a result, I’ve tried to do whatever seemed like the safest option open to me. I don’t have an army of lawyers to guide me... and even if I did, that might not be enough! With every wrong move, I risk $50 per day in fines.”
Diana Hsieh is not the only one who’s had problems with the laws. In 2006, a group of neighbors outside of Denver spoke out against the annexation of their neighborhood into a nearby town. They put up No Annexation lawn signs, sent around post cards, and spoke to neighbors and were promptly sued by the proponents of annexation for failing to register and comply with the issue committee regulations. IJ now represents them in a First Amendment challenge to the laws. The case is currently before the U.S. Court of Appeals for the Tenth Circuit.
IJ commissioned an economist from the University of Missouri to study the burden of these regulations on free speech a few years ago. He created an experiment in which groups of people were given a simple fact pattern and asked to fill out the forms for issue committees. Out of 255 participants, not a single participant filled out the forms correctly and the average score was about 40 percent correct. In the real world, each of these individuals would have faced fines and harassment from their political opponents. The study is available here.
But, as Diana points out, even if the regulations were not burdensome they would still “be a blatant violation of every person’s free speech rights. People should not have to register with the government to speak their minds. They should not have to register with the government to donate money so that others can speak for them.”
With all of the complaining about “undisclosed” money being spent on campaign ads, it’s worth remembering that freedom of speech is a right, not a privilege that must be justified to everyone who does not like what we say.
Read all about it in her new column in Fortune.
Over at Reason Katherine Mangu-Ward takes a look at “Secret Money from God Knows Where” and notes that perhaps the biggest upside to come from the increased independent money (read: “speech”) in this year’s election is increased competition against the established power structures of the two major parties:
One upshot of increased spending by interest groups could be a reduction in the power major parties hold over candidates. Normally, when a question of party discipline looms in the House or Senate, savvy incumbents allowed themselves to be whipped into shape, afraid of getting checkbook slapped by party bosses. According to The Washington Post, a third of all independent expenditures reported to the Federal Election Commission this year comes from the two major parties, compared to 54 percent in 2008 and 80 percent in previous cycles.
More evidence that although many leaders of the political establishment decry Citizens United as taking power from the people, their real concern is that it's taking power from them.
So complicated that even the government doesn’t understand them.
As remarkable as that conclusion may sound, my colleague Robert Frommer has a piece in the Denver Post demonstrating exactly that.
The piece tells the story of “Clear the Bench,” an independent grassroots organization that came together to oppose the retention of four Colorado Supreme Court justices. The group tried in good faith to comply with the campaign finance laws, and even asked the agency charged with enforcing those laws what it was supposed to do. Nevertheless, when Clear the Bench spoke out, they found themselves hauled into court by their political opponents, charged with failing to register as the proper kind of political committee. Ultimately, after a year and a half of litigation, a court agreed, and gave Clear the Bench 20 days to register as the correct kind of committee.
The problem? As Frommer notes:
The court’s ruling was wrong.
Clear the Bench wants to independently advocate against the retention of certain Colorado Supreme Court justices. Under Colorado law, the group should be an independent expenditure committee, which, unlike a standard political committee, does not have contribution limits. But no one involved in this dispute—not Clear the Bench, its accusers, or even Colorado campaign finance officials or the special administrative court—understood this.
The fact that something like this could happen in any area of the law is frightening enough. But something is particularly wrong when the laws regulating political speech are so complicated that everyone involved in a legal dispute—lawyers, elections officials, and judges—fails to understand them.