While Senate Republicans have successfully put a stop to DISCLOSE for the time being, the Fair Elections Now Act (FENA) continues to move forward in the House. This past Thursday, the Committee on House Administration voted to send FENA to the floor. One Democrat, Artur Davis, voted against it. According to sources on the Hill, there has been no decision yet on when or if House leadership will schedule a vote, but proponents are underwriting a substantial ad campaign in favor of the bill.

A front page article in today’s Washington Post highlights how free speech is on the rise.  Since late July, many new groups from across the ideological spectrum have come together to independently advocate for or against candidates this election season.  By vigorously talking about the issues and candidates they care about the most, these new groups have the potential to reshape the face of American politics. 

This explosion of activity didn’t just happen randomly, though.  Instead, it was made possible by a group called SpeechNow.org.  David Keating, SpeechNow.org’s founder and president, set up the group precisely to allow individuals to do what they are now doing—joining together to speak out about candidates.  Federal law prevented that, however, by making the groups PACs and restricting their fundraising.  Under the law, one person could spend as much as he wanted for his own speech, but if he joined with others, they were each limited to $5,000 apiece.  In essence, the law forced people to choose between their constitutional right to speak and their constitutional right to associate. 

In February 2008, the Institute for Justice and the Center for Competitive Politics sued the federal government on behalf of SpeechNow.org.  More than two years later, SpeechNow.org prevailed on its claim that the government could not limit the amounts individuals can give to the group to fund its independent speech.  The D.C. Circuit ruled unanimously that independent speech—even speech calling for the election or defeat of candidates—does not pose a threat of corruption and thus cannot be limited.  The victory benefitted not only SpeechNow.org but groups of all political stripes, which is exactly the reason so many of them have cropped up in recent months. 

The Post is referring to these groups as “Super PACs,” but that’s a misnomer.  PACs give money to candidates.  “SpeechNow Groups” do not.  They spend their own money on their own speech about candidates, which is one of the primary things the First Amendment was designed to protect.  After the Citizens United decision, many people howled that corporations are not people and should not be permitted to speak.  Well, SpeechNow is “people”—people joining together to exercise their First Amendment rights to speak out and to affect the course of their government.  Because of David Keating and SpeechNow, a ruling that allowed corporations to spend their own money on speech has now been extended to prevent the government from restricting the ability of citizen groups—presumably the very groups that critics of Citizens United want to be able to speak—to pool their funds and amplify their voices.  That’s a huge win for free speech.

The President is disappointed that the DISCLOSE Act died in the Senate last week.  He said, among other things, that “Wall Street, the insurance lobby, oil companies and other special interests are now one step closer to taking Congress back and returning to the days when lobbyists wrote the laws.”

Wait just a second. Surely the President isn’t suggesting that we’ve recently been in an age where lobbyists have not been writing legislation. It’s an open secret that they’ve always helped with drafting bills—including legislation that the President has championed, such as reform of the health care and financial industries. The DISCLOSE Act wouldn’t have changed this status quo in the slightest.

What it would have done instead is make it harder for the vast majority of Americans—including those of us who can’t afford to hire lobbyists—to have a real say in the political process. Unlike lobbyists, they don’t get to air their views to lawmakers on a regular basis. In order to advance the political issues they care about, people have to let their representatives know that they will be held accountable at the ballot box for the positions they have taken on those issues. Doing that requires communicating with as many voters as possible in the most effective manner possible. This can happen only if individuals are free to associate with others and pool their resources so that they will have enough money to run ads in popular media such as radio and television.

The DISCLOSE Act—by imposing new and burdensome costs on free speech—would have stifled this freedom. Indeed, some of its supporters have all but admitted as much. Because incumbent politicians don’t relish the prospect of lots of ads that hurt their reelection chances, it shouldn’t surprise us that so many of them voted for DISCLOSE.   They’d rather play an insiders’ political game with lobbyists who quietly go about their work than be subject to criticism in a noisy public arena they don’t control.

Thus, the argument that the DISCLOSE Act would have decreased the power of K Street to the benefit of Main Street isn’t just disingenuous—it’s exactly backwards.

Image source: wallyg

Twelve-term U.S. Rep. Peter DeFazio (D-Ore.) was recently criticized in independent political ads funded by a group calling itself Concerned Taxpayers of America.  Rep. DeFazio wanted to know who was behind the ads, and he wasn’t willing to wait until the group filed its quarterly campaign finance report in October to find out.  The Washington Post reports DeFazio as wondering, “Is this a corporation? Is it one very wealthy, right-wing individual? Is it a foreign interest? Is it a drug gang?”

So Rep. DeFazio did what any reasonable incumbent politician would do in that situation—with reporters in tow, he went to the address the group had listed with the Federal Election Commission and started shouting through the mail slot until someone agreed to speak with him.

No really.

Huffington Post reporter Sam Stein tweets that the DISCLOSE Act fell one vote short of cloture.

Over at Shopfloor.org, Carter Wood reports that the cloture vote on DISCLOSE will take place this afternoon at 2:15. According to a report last night by Meredith Shiner in Politico, DISCLOSE’s prospects for surviving the vote look grim:

Senate Majority Leader Harry Reid (D-Nev.) announced through a spokesman that he was bringing the DISCLOSE Act back to the floor on Thursday. But it’s all but assured that he’ll not have the 60 votes necessary to overcome a threatened Republican filibuster, with moderate Republicans showing no signs of flinching in their opposition.

She adds that voting on DISCLOSE is something that the Senate leadership needed to do in order to kill time before the weekend:

When the defense authorization bill failed to clear cloture Tuesday, Democrats needed a measure to fill floor time before the weekend, and the DISCLOSE Act was one of the few measures in their legislative arsenal that was quickly available.

Having failed cloture once, the campaign bill only requires a less strict “motion to recommit” from Reid to call another cloture vote. New legislation likely would need 30 hours after being filed, 30 hours the Senate doesn’t have.

So even if Democrats know they’re likely short of votes Thursday, the alternative was practically nothing.

That alternative sounds pretty good to me. Indeed, I could have sworn there was part of the Bill of Rights that talks about how, when presented the opportunity to make laws that would abridge the freedom of speech, Congress should do nothing.

I can imagine few worse ways to spend a day than watching Senators give speeches on C-SPAN 2, but that’s exactly what Sean Parnell of the Center for Competitive Politics has been doing today. Why has he been subjecting himself to this ordeal? Senators are debating the DISCLOSE Act, which will be up for a vote tomorrow.

After listening to supporters of the legislation continue to make inaccurate statements both about the contents of the bill and the current state of campaign finance law, he concludes: “To the ever expanding list of reasons to vote against the DISCLOSE Act should now be added the seemingly irrefutable fact that the Senators advocating for it clearly do not understand what they are talking about.”

Don’t expect this fact to make supporters of campaign finance “reform” any less enthusiastic about giving these same Senators more control over the publics’ First Amendment rights.

Image source: HikingArtist.com

Yesterday, a district court in Minnesota ruled that corporations must become political committees or PACs in order to speak.  The case is called Minnesota Citizens Concerned for Life, Inc. v. Swanson.

The decisions directly conflicts with Citizens United, but it is particularly relevant to our petition for review in SpeechNow.org v. FEC.  In SpeechNow.org, the D.C. circuit ruled that an unincorporated association must become a PAC in order to speak, notwithstanding the Supreme Court’s ruling in Citizens United that corporations cannot be required to become PACs just to spend money on independent ads advocating the election or defeat of candidates.  We’ve asked the Supreme Court to accept that case for review because it conflicts with Citizens United.  Among other things, we pointed out that if the court’s can ignore Citizens United and require unincorporated associations to become PACs, there’s no reason they won’t do the same thing to corporations, thus nullifying an important part of Citizens United.  We hate to say we told you so, but it appears that that has now happened.

Just to back up a bit and put all this in context, in Citizens United, the Court held that the government cannot ban corporations from paying for independent expenditures—that is, ads advocating the election or defeat of candidates.  But it also held that they can’t be required to set up separate, heavily regulated PACs in order to speak out about political elections.  “PACs,” the Court pointed out, “are burdensome alternatives; they are expensive to administer and subject to extensive regulations.”  The Court then went on to catalog all of the regulations that apply to PACs.  In short, the Court essentially held that the government may not do indirectly what it is forbidden from doing directly.  If it cannot ban spending for speech outright, it also may not so heavily regulate that spending in order to accomplish the same thing.

In SpeechNow.org, which involves an unincorporated association that wants to do the same thing as the corporation in Citizens United, the D.C. Circuit struck down fundraising limits on the group because its independent spending, like the independent spending of the corporations at issue in Citizens United, posed no threat of corruption.  But the D.C. Circuit upheld the requirement that the group become a PAC in order to speak.

We are now seeking review in the Supreme Court.  We’ve argued that the SpeechNow.org decision conflicts with Citizens United, and that lower courts, following the D.C. Circuit, could even end up requiring corporations to become PACs in order to speak.  The district court in Swanson has now done just that. 

This is an object lesson on the impact of our incredibly byzantine campaign finance system, not only on speech but also on the courts.  Citizens United is not hard to understand, and yet the courts have already misunderstood it.  That isn’t surprising.  There are so many different rules, regulations and tests in this area, and so many conflicting cases, that it’s tough to know what the law is at any given moment.  Citizens United was a welcome dose of clarity, but to truly protect speech over the long haul, the Court will have to continue to instruct lower courts that free speech must be the rule, not the exception.