Congress Shall Make No Law...

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. guy-wrapped-in-red-tape

 

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.

 

Proponents of campaign finance laws are generally quick to denigrate or dismiss as alarmist arguments that the regulation of political speech regarding elections will lead the country down a slippery slope in which the government will eventually seek to control all—or at least the vast majority of—political speech.

 

As ESPN’s Lee Corso might respond to these denials of the existence of such a slippery slope, “Not so fast, my friend!”

 

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On Monday, my colleague Paul Sherman argued a motion for temporary injunction in a case we filed in Florida recently challenging PAC requirements that are imposed on groups that want to join together to speak out for and against ballot initiatives. Under the law, when two or more people join together to spend more than $500 supporting or opposing a ballot issue, they must register with the state as a PAC, appoint a treasurer, open a separate bank account, and file regular reports of all their activities, among other requirements. In Citizens United, the U.S. Supreme Court held that these requirements were too burdensome for corporations speaking out in candidate elections. Our argument is that they must therefore be too burdensome when applied to small citizens groups that want to speak out about ballot issues.

 ballot-box-money

Obviously skeptical of our argument, at one point the judge asked Paul this question: If “[a] person from Montana who wants to come here and spend $20 million and buy an election and does not want to reveal his funding” under your argument “he can do that, too, right?” This is a common view. We need campaign finance laws to prevent people from “buying elections.”

 

Of course, just because a view is common does not necessarily make it correct.

 

In fact, as a recent column by David Brooks makes clear, the notion that campaign spending “buys” elections is obviously wrong. As Brooks points out, even though the Democrats have outspent the Republicans in a number of close races, they lag behind in the polls. The same thing has happened to the Republicans in the past. And Brooks lists a number of candidates—including Joe Miller, who beat Lisa Murkowski, and Christine O’Donnell, who beat Mike Castle—for whom money obviously was not the deciding factor. There are many more examples, including Jon Corzine, Michael Huffington and Ross Perot, all of whom spent huge sums of money and lost. The same applies to ballot issues. Last summer, for example, proponents of a California initiative that would have enacted public campaign financing outspent opponents 2 to 1 and still lost.

 

None of this is surprising. Campaign spending doesn’t buy elections any more than commercial advertising buys market share. If it did, we’d all be driving American cars. The movies and television shows with the biggest ad budgets would be the most popular.

 

Money buys speech.  It buys exposure.  But it can’t buy elections, because the voters are ultimately the ones making the decision.  Yet that’s exactly what the money-buys-elections argument denies.  That argument presumes that voters are empty vessels, waiting to be filled with whatever thoughts the candidates and “special interests” want to pour into their heads.

 

The First Amendment is based on the opposite premise. As the Supreme Court said in Citizens United, “The First Amendment confirms the freedom to think for ourselves.” That some people may spend lots of money trying to convince us to agree with them does not make us any less free to make up our own minds.

montanaWe at MakeNoLaw.org (and at IJ in general) often criticize the courts for not carrying out their constitutional role as a check on the other branches of government, so it’s nice every once in a while to be able to cite an example of a court doing what it is supposed to.  That happened in Citizens United, and it just happened yesterday in a state trial court in Helena, Montana.

 

The case involved a challenge to Montana’s ban on corporations speaking about candidates for state office, a similar ban to the one at issue in Citizens United.  The corporate plaintiffs argued that under Citizens United and the First Amendment they had the right to spend money from their general treasuries directly on speech.  Just as the federal government did before the Supreme Court, the state argued that an alternative to banning corporations from engaging in independent spending would be to allow them to spend money on their own ads, but to make them do so through heavily regulated PACs.  As we discussed recently, a court in Minnesota accepted this approach in another case, and, contrary to Citizens United, ended up requiring corporations to speak through PACs.

 

Happily, the Montana court rejected this approach and took the Supreme Court’s discussion of PACs in Citizens United seriously.  Quoting the Court’s statement that “[a] PAC is a separate association from the corporation” the court ruled that subjecting a corporation to PAC burdens violates the First Amendment.

 

Citizens United was not a complicated case, and yet already some courts have misapplied it.  It’s nice to see that some courts are getting it right, but the battle over free speech during elections is far from over.

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.

 fedpapers

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.

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.

Robert_GibbsWhite 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