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.
I have an op-ed in the Tampa Tribune today about IJ's challenge to Florida's campaign finance laws, which place unconstitutional burdens on groups that independently advocate the passage or defeat of ballot issues. Here's an excerpt:
“Hey Bob, have you been reading about Amendment 4?”
“I sure have, Susan. I think it’s awful.”
“Me, too. We should do something about it.”
“How about a full-page ad in the Tribune? We could split the cost.”
“That’s a great idea. Let’s keep it simple: ‘On Nov. 2nd, Vote No on Amendment 4.’”
Sounds simple enough, doesn’t it? It’s the sort of thing Americans do all the time when they’re mad about a candidate or ballot issue. Indeed, it’s the sort of thing James Madison, Alexander Hamilton and John Jay did when they anonymously published the Federalist Papers in support of ratifying the Constitution.
But it’s also the sort of thing that’s illegal in the state of Florida.
If Bob and Susan carry out their plan, they will have broken at least half a dozen state laws. Their political speech has landed them in the minefield of “campaign finance” law, where exercising basic First Amendment rights can lead to fines or even jail time.
In the marketplace for goods and services, entrepreneurs are engines for innovation and change. Likewise, in the political arena, political entrepreneurs bring new ideas and voices to public debate and provide outside competition that keeps the political establishment on its toes.
As part of the Institute for Justice’s new Citizen Speech Campaign, we released a report by campaign finance expert Jeffrey Milyo that explains the value of political entrepreneurs to the vibrancy of American democracy—and shows how campaign finance laws tell them to “keep out.”
Milyo points to the civil rights movement of the 1960s and today’s Tea Party movement as classic examples of political entrepreneurs challenging the status quo. IJ’s Robert Frommer pointed to another example when he highlighted the growth of “SpeechNow Groups” following the model created by political entrepreneur David Keating, and yet another in a group of Florida citizens who want to speak up about a constitutional amendment on the ballot.
Yet campaign finance laws in all 50 states erect barriers to entry for such political entrepreneurs, just as occupational licensing laws keep upstarts from competing with established interests in the marketplace.
In America, the only thing you should need to talk about politics is an opinion. But unfortunately far too many states view freedom of speech not as a right, but a privilege that they can regulate, license and control. Today, the Institute for Justice has launched a nationwide Citizen Speech Campaign that will vindicate the First Amendment rights of all Americans through strategic research, outreach and litigation.
Watch and Share IJ's New Campaign Finance Video "Camp Politics"
One state that is in desperate need of help is Florida. Unfortunately, residents of the SunshineState “enjoy” some of the worst campaign finance laws in the nation. For instance, whenever two or more people join together to spend money speaking out about a ballot issue, they must first register with the government and comply with complex organizational, administrative, and reporting requirements under the threat of fines and even possible jail time. These laws in effect turn politics into an insiders’ game.
No one should have to suffer these burdens in order to speak. After all, advocating for or against a ballot issue is core political speech that lies at the heart of the First Amendment. To vindicate this right, the Institute for Justice has brought a federal lawsuit on behalf of Nathan Worley, Pat Wayman, John Scolaro and Robin Stublen, four members of a Tampa-area political group who want to run radio ads against a land-use measure that is on the November ballot. Florida’s campaign finance laws, though, say that as soon as they raise $500, they must jump through government-created hoops in order to speak.
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.
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.