Congress Shall Make No Law...

Following up on my colleague Bert Gall’s discussion of seemingly unkillable frights, the Fair Elections Now Act (FENA) is also showing signs of life again.  FENA, one may recall, is the name for a number of bills that operate from the assumption that if you preemptively shower politicians with the people’s money, they will not be tempted to be corrupt.  Perhaps realizing that the post-election environment will be hostile for government subsidies for unsuccessful enterprises, Congress is giving the idea of bailing itself out one more try.  On Thursday, September 23, 2010, the House Committee on Administration will vote on yet another version of FENA.


The current version of FENA does not include an obviously constitutionally-problematic “matching” or “rescue” funds provision, like the systems recently struck down in Connecticut and Florida and the Arizona system recently stayed by the U.S. Supreme Court.  That does not mean that the various versions of FENA do not contain serious constitutional problems.  Moreover, there is little evidence that using the people’s money to subsidize the campaigns of politicians provides any of the myriad and vast benefits promised by campaign finance reformers.


When the government is spending trillions and sinking deeper into destabilizing debt, spending money the government doesn’t have to subsidize political campaigns seems like a bad joke.  At best, it displays a level of denial and entitlement by our elected officials that is almost delusional.  The members of the Committee should do themselves, the Constitution, the federal budget, and the taxpayers a favor and vote this idea down once and for all.

From CCP's press release, which provides a detailed breakdown of the results:


The Center for Competitive Politics released the results of a national poll today showing that likely voters are deeply skeptical of proposed campaign finance disclosure regulations, think current disclosure thresholds are too low and oppose the special deals given to unions in the DISCLOSE Act.


As Glenn Reynolds would say, read the whole thing

What does the DISCLOSE Act have in common with movie monsters like Jason Voorhees and Freddy Krueger? No matter how many times it appears to die, it keeps coming back to life. The Hill reports that Senate Democrats are preparing to force—as early as next week—a vote on a “bare-bones” version of the DISCLOSE Act that they hope will appeal to Senate Republicans like Susan Collins and Olympia Snowe, who have supported campaign finance restrictions in the past.


This “bare-bones” version, although it will not include things like prohibitions on political spending by companies with more than twenty percent foreign ownership, will still have “disclosure” mechanisms designed to discourage corporations from speaking during election season. Thus, DISCLOSE remains, as it always has been, a cynical assault on First Amendment rights by politicians who are afraid of corporations speaking out against their reelection.


As First Amendment advocates work again to put a stake in DISCLOSE’s heart, they should make sure, once and for all, that—unlike with Jason and Freddy—there is no possibility of a sequel.


Image source: Valerie Everett

TeaParty-AliceIn a recent article in National Journal, Jonathan Rauch explains that the “Tea Party” is not one organization run by a top-down command structure, but rather a large number of local organizations across the country.  Almost all of them are completely run by volunteers, and they do a multitude of different things: recruit candidates for office, hold rallies, network with other activists, etc.  Many do not even have a formal organizational structure, but are merely a band of interested people who get together to talk and strategize, then take it upon themselves to accomplish various goals and see if others want to help out.


One particularly telling anecdote is the following:


Asked how many neighborhood tea parties exist in the Dallas area, another citywide coordinator replied, “I don't even know.”


The coordinator does not know because “tea parties” are often just groups of people who get together and start engaging in political activism.  Their existence ebbs and flows, with groups constantly forming and disappearing.  Groups frequently coordinate, but often they do their own thing.


What the article does not mention is that much of what these various groups do is potentially subject to campaign finance laws.  For instance, if the members of a small grassroots tea party group want to put up signs for a candidate they like, under federal law (for a Congressional race) and the law of most states (for state and local races), they need to report their spending on those signs.  If the “group” (I use quotation marks as it could just be a few people who belong to a Meetup group or even an email list) is coordinating the effort with other “groups,” then all of the people involved may be subject to complex administrative and reporting requirements that can be navigated safely only with the aid of lawyers and accountants.  Much of this activity, luckily, flies under the regulators’ radar, but the potential for liability is widespread and ominous.


All of this goes to show that campaign finance laws are not designed for a decentralized bunch of activists like the Tea Party movement.  But the application of campaign finance laws to the activities of these citizens is more than just another example of the government applying antiquated laws to a world they weren’t designed for.  More importantly, these laws threaten to wrap tea partiers—as well as activists of all political stripes—in so much bureaucratic red tape that they can’t speak.  While that’s a result that most professional politicians facing reelection this November would probably like, it’s one that those of us who care about keeping political speech in this country robust should abhor.


Image source: Toronto Public Library Special Collections

Last week, Paul Sherman blogged about how campaign finance laws are often used as weapons by opponents in political campaigns. That shouldn’t surprise us a bit. Businesses often use regulations to gain an upper hand against their competitors. It’s hardly surprising that competitors in the political marketplace do the same thing.courtroom


Examples of this sort of thing abound. Kim Strassel of The Wall Street Journal recently reported on how opponents of Washington senatorial candidate Dino Rossi have been dogging him for years with lawsuits alleging violations of campaign finance laws. Conveniently, these suits tend to become active right around election time.


Both political parties give as well as they get when it comes to the strategic use of campaign finance laws. But that doesn’t make these abuses acceptable. For one thing, the laws are just as likely to be used against ordinary Americans as professional politicians.


A few years ago, the Institute for Justice defended an initiative campaign in Washington State that was sued for failing to disclose the on-air commentary of two talk radio hosts as “in-kind” contributions. The hosts supported the initiative, which sought to repeal a controversial gas tax, and they had the temerity to say so on the air. A number of local governments who stood to gain millions from the gas tax objected and expressed their disdain by suing the initiative campaign for allegedly violating disclosure laws.


The same thing happened to a group of neighbors outside of Denver in 2006. They opposed an initiative to annex their neighborhood into the adjoining town. For talking to neighbors, sending out post cards, and putting up lawn signs, they were sued for failing to register as an “issue committee” under Colorado law. Not surprisingly, the supporters of annexation were the ones who filed the suit. IJ is also litigating this case, which is currently on appeal before the Tenth Circuit Court of Appeals.


Campaign finance laws have done next to nothing to take the corruption out of politics. But they’ve done a great deal to put the lawyers and regulators in. That may provide for great political theater on occasion, but it doesn’t exactly inspire confidence in our electoral system, and it’s no way to protect free speech.


new-yorkThe Holztman Vogel blog reports that New York City Public Advocate Bill de Blasio has a new front in his efforts to dissuade associations of Americans from exercising their First Amendment rights. A new website established by the Public Advocate condemns companies unless they pledge to not “tak[e] advantage” of the Supreme Court’s decision in Citizens United. In other words, he is using the taxpayers’ funds to castigate companies for retaining their ability to exercise their First Amendment rights.


The website allows the visitor to scroll over the names of different companies divided into whether they have publicly pledged to refrain from speaking about politics. If a company has not sufficiently renounced its First Amendment rights to the Public Advocate’s satisfaction, the visitor is encouraged to “reach out and demand that companies which can still use treasury money in elections reform their spending policies.” No one is really sure what the Public Advocate's actual duties are, exactly, although the current holder of the office apparently believes part of his responsibilities is to spend the taxpayers’ money bullying organizations into renouncing their constitutional rights.


2:42 PM

The Democratic Governors Association (DGA) has filed a complaint with the Ohio Elections Commission, accusing Fox News of violating Ohio campaign finance laws.  Fox News’ supposed crime?  While Ohio gubernatorial candidate John Kasich was being interviewed by Bill O’Reilly, Fox News displayed the URL for Kasich’s campaign website under Mr. Kasich’s image for approximately 1 minute and 30 seconds of the 6 minute interview.


Here’s a video of the interview, which the DGA apparently believes is so damning that they’ve uploaded it to YouTube themselves.  Kasich's URL appears 1:34 into the video:




If you watch the video you’ll notice that the chyron at the bottom of the screen cycles through several different versions, including “John Kasich (R), Running for Ohio governor,” “John Kasich (R), Author of “Every Other Monday,” and “John Kasich (R),”


That last one is what has the DGA up in arms.  The DGA claims that by displaying Kasich’s website, Fox News made an illegal “in-kind contribution” to Kasich’s campaign.  They also claim that Fox News should have included a disclaimer beneath the graphic, labeling it as a paid political advertisement.


The DGA’s complaint is absurd, and the implications if it were taken seriously are astounding.