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.
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.
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.
As longtime readers of this blog may remember, the U.S. Supreme Court last Term decided Doe v. Reed, which asked whether Washington State could release the names and addresses of those who signed a controversial referendum petition. Check out IJ Senior Attorney Steve Simpson talking at Cato’s Constitution Day about what the Court did (and didn’t do) in Doe:
Tom Bowden of Voices for Reason notes a fascinating discovery about the Declaration of Independence. Early in the original draft, Thomas Jefferson changed a word to “citizens.” But because he scribbled out the original word, no one could tell what he had written until recently. Using new technology, however, scholars have identified the word: “subjects.” As Tom says, “on the brink of revolution, here was Jefferson, eradicating an important vestige of the idea that government is the master and individuals are the loyal servants.”
It seems entirely fitting to note this discovery as we kick off Citizen Speech Month. Citizens are equal before the law—equal to each other, and, importantly, to their governing officials. Subjects ask permission to speak. Citizens do not.
One of my favorite lines from the Declaration of Independence is in the bill of particulars lodged against King George: “He has erected a Multitude of new Offices, and sent hither Swarms of Officers to harass our People, and eat out their Substance.” I can’t think of a better description for all the campaign finance bureaucrats and the morass of red tape they impose on citizens who wish to speak out about their elected officials.
Enjoy the next month leading up to the election as a citizen, not a subject. Speak early, and speak often.
When Hal Heiner decided to run for mayor of Louisville, Ky., patent attorney Theresa Camoriano knew it was time to get serious about local politics. Theresa’s interest in politics had been growing for years, spurred on by both several run-ins with local bureaucrats and a general sense of frustration that government officials were not responsive to the citizens for whom they work.
In her spare time, this budding political entrepreneur took her first foray into activism by publishing The Jefferson Review, an online newsletter critiquing government overreach. Encouraged by her growing readership, Theresa’s desire to make her voice heard only intensified.
So Heiner's candidacy was welcome news: Here was someone running for office who shared Theresa’s views on the appropriate role of government and had a track record on city council to back it up. Theresa volunteered for Heiner’s campaign, handing out bumper stickers and flyers, but she wanted to do more. She wanted to tell voters about Heiner’s humility, trustworthiness and strength of character—messages not part of his official campaign, but things she knew to be true from years of knowing him.
To spread this message, Theresa and other Heiner supporters wanted to pool their money to buy radio ads. But under Kentucky’s campaign finance laws, like those of most states, this kind of political speech is illegal—unless they jump through a maze of legal hoops.
As part of its Citizen Speech Campaign,the Institute for Justice is declaring October Citizen Speech Month. Throughout the month, IJ will feature the stories of political entrepreneurs who have been stymied by government regulation of political speech under the guise of so called “campaign finance” laws.
Today’s post features the story of Louisville patent attorney and budding political entrepreneur Theresa Camoriano.
Legendary First Amendment lawyer Floyd Abrams has written a teriffic article for the Yale Law Journal defending the Citizens United decision. Abrams rightly criticizes “the willingness of so many not even to acknowledge, let alone weigh, the powerful First Amendment interests” at issue in the case. As he says,
But that was the tack taken by too many commentators who focused exclusively on the potential (but necessarily speculative) political impact of the ruling and whether the Court was guilty of unacceptable judicial activism. Yet for all the angst about the Citizens United ruling and all the denunciations of it, the ruling is based on the most firmly established and least controversial First Amendment principles. So for me, the truly disturbing visage of the case is not that five members of the Court gave such weight to the First Amendment that some long-standing bans on corporate and union participation in the nation’s electoral process fell; it was that four members of the Court and many of its most distinguished and powerful observers serenely acquiesced in the criminalization of a documentary urging Americans not to elect as President a leading candidate for that position.
Abrams is, of course, exactly right. Citizens United was firmly based on basic First Amendment principles. For anyone who truly values freedom of speech—and who understands what the “freedom” part actually means—the decision should not have been controversial at all. That it was one of the most controversial decisions in years is a measure, not of judicial activism or a pro-corporate, conservative Supreme Court, but of how far a large portion of this country’s intellectual establishment has strayed from the principles of the founding generation. The dirty little secret of a large number of opinion leaders in this country—not only politicians, but academics and even journalists—is that they support censorship as long as it is directed at ideas and people or groups they despise. Fortunately, I think more and more people are starting to understand the importance of Citizens United and why the Court did the right thing.