It was inevitable: Politicians are starting to turn to the campaign finance laws to silence their critics on the Internet.
In Ohio, for instance, Edmund Corsi runs GeaugaConstitutionalCouncil.org, a blog that praises and criticizes various local officials. Well, it turns out that some of those officials don’t like getting criticized. Rather than responding with their own speech, however, those pols got the Geauga Board of Elections to file a complaint with the Ohio Election Commission. They said that Corsi violated Ohio’s campaign finance laws because he failed to register, appoint a treasurer and file regular financial reports with the state before daring to speak.
After some legal wrangling, the Commission now reads the complaint to say that Corsi violated the law by not disclosing his name and home address on the website. But, as the Institute for Justice has repeatedly pointed out, mandatory disclosure laws cause far too many people to remain silent. Thankfully, an Ohio-based public interest law firm has come to Corsi’s defense and asked for these charges to be dismissed.
If campaign finance “reformers” hate anything, it’s the idea that someone somewhere might be speaking freely about politics. As IJ’s Congress Shall Make No Law blog reported last week, the California Fair Political Practices Commission is talking not about whether to regulate candidates’ Facebook posts and tweets, but how. And Corsi’s case shows that would-be censors are now eyeing the Internet as their next battleground. Why? Well, blogs, Twitter and other social media let everyone make their voices heard. To the political insiders who are used to monopolizing speech, that’s a scary thing.
To the rest of us, though, that’s freedom.
Image Source: Matt Hamm
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Last month, the U.S. Court of Appeals for the Second Circuit struck down the “matching funds” provision of Connecticut’s Citizen Election Program, a system of taxpayer funding for politicians in the Nutmeg State. The Hartford Courant reports that Governor Jodi Rell has vetoed the Connecticut Legislature’s attempt to fix the law by eliminating the matching funds trigger and increasing the base grant to candidates from $3 million to $6 million. The Legislature will now attempt to override the Governor’s veto.
Perhaps the Connecticut Legislature should spend the money it takes from its taxpayers on providing them with essential services instead of funneling it to politicians seeking to get or keep a comfortable job. Perhaps it should spend the money on paying off the promises these same politicians made with money they did not earn and do not have. Or perhaps it should simply return the money to the Connecticut taxpayer. Given that taxpayer-financed campaigns haven’t delivered the benefits their backers promise—particularly in Connecticut—taking the money currently used for the Citizen Election Program and using it to play the slots at the Foxwoods Casino would be a wiser investment with a better chance of a positive return.
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The Palm Beach Post reports
that the state of Florida will not appeal a recent decision
(.pdf) by the U.S. Court of Appeals for the Eleventh Circuit that put a temporary freeze on the state’s unconstitutional system of matching funds. Our previous coverage of the 11th Circuit’s decision—and what it means for IJ’s upcoming appeal to the Supreme Court in McComish v. Bennett
—is available here.
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Now that the DISCLOSE Act has—at least temporarily—been sidelined, attention is shifting to another bill designed to hinder corporate speech in the wake of Citizens United: the so-called Shareholder Protection Act (H.R. 4790). As Dow Jones Newswires reports, the Act recently made it through the House Financial Services Committee by a 35-28 vote, and can now proceed to the full House.
The brainchild of Rep. Michael Capuano (D-Mass.), the Shareholder Protection Act would require corporations that wish to speak independently during elections to seek prior shareholder approval. The Act does not apply to unions, which would remain free to spend money on political advertising without seeking approval from dues-paying members. Nor does the Act require corporations to get preapproval for speech on any other subject—the law targets only political speech.
The Shareholder Protection Act isn’t really designed to protect shareholders. Corporate managers are already legally required to act in the shareholders’ best interest. By singling out political speech—and only political speech—for more burdensome treatment, the proposed law merely attempts to do indirectly what the U.S. Supreme Court just said Congress may not do directly: abridge corporations’ political speech rights. And just like direct attempts to limit corporate speech, this indirect attempt violates the First Amendment.
The Shareholder Protection Act functions as a prior restraint, the most invidious form of speech regulation. But worse, by requiring corporations to seek approval months in advance of political expenditures, the Shareholder Protection Act asks the impossible. Political markets are dynamic and unpredictable. As Justice Harlan once wrote, “[T]iming is of the essence in politics. It is almost impossible to predict the political future; and when an event occurs, it is often necessary to have one’s voice heard promptly, if it is to be considered at all.” Shuttlesworth v. Birmingham, 394 U.S. 147, 163 (1969). Of course, ensuring that corporate speech doesn’t get considered is precisely the goal behind the Shareholder Protection Act.
H.R. 4790 is unnecessary and unconstitutional. Here’s hoping it meets the same fate as the recently shelved DISCLOSE Act.
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The Associated Press reports that California’s Fair Political Practices Commission (FPPC) is considering “how to regulate new forms of political activity such as appeals on a voter’s Facebook page or in a text message.”
Not whether to regulate these new forms of political speech, but how.
The recommendations apparently include “requiring tweets and texts to link to a website that includes . . . full disclosures, although some people feel the disclosure should be in the text itself no matter how brief . . . .”
To paraphrase Chief Justice John Roberts, this is why we don’t leave our free speech rights in the hands of FPPC bureaucrats. To bureaucrats like those at the FPPC, the Federal Election Commission or their analogues, there seems to be no need to show any evidence that Twitter, Facebook or text messages actually pose any threat to the public. It is enough that they these new forms of low-cost media aren’t currently regulated, but could be. Their primary concern, apparently, is that the regulation of political speech be as comprehensive as possible.
Here’s an alternative recommendation for the FPPC: Leave the Internet alone. What you will undoubtedly find is that California voters—and, indeed, Americans generally—don’t need you to protect them from political speech. To the contrary, the First Amendment reflects a profound commitment to the idea that you are the very last people we should trust to control the content of our political debate.
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In an emergency appeal, the U.S. Court of Appeals for the Eleventh Circuit has enjoined Florida’s unconstitutional system of campaign finance “matching funds.” The ruling (.pdf) reverses a contrary decision—handed down only two weeks ago—by U.S. District Judge Robert Hinkle.
As we have previously described on this blog, matching-funds programs unconstitutionally discourage privately funded candidates from speaking because, if those candidates spend more than a certain amount on political speech, the government starts cutting checks directly to their government-financed opponents. IJ will soon be appealing a similar challenge to Arizona’s matching-funds program to the U.S. Supreme Court.
More analysis of the 11th Circuit's ruling to follow.
How likely is it that matching-funds programs like those in Florida, Arizona and Connecticut violate the First Amendment? Accordingly to the 11th Circuit, “exceedingly likely.”
In its ruling enjoining Florida’s matching-funds program, the 11th Circuit panel treats the legal issue in gubernatorial candidate Rick Scott’s challenge to Florida’s law as an easy question that is entirely resolved by the Supreme Court’s 2008 ruling in Davis v. FEC. And the 11th Circuit is absolutely right.
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After the Supreme Court upheld the right of corporations and unions to engage in political speech in Citizens United, many pundits darkly warned that corporations could now “buy” elections. These pundits necessarily relied on two assumptions: (1) voters are dolts whose votes can be “purchased” through advertising, without voters making any independent analysis of their own; and (2) corporations will not suffer economically through backing certain candidates.
For assumption (1) I refer our readers to Paul Sherman’s terrific post on this blog of earlier this month. As for assumption (2), check out this story on Target Corporation’s foray into the Minnesota gubernatorial race:
Target earlier this month donated $150,000 to MN Forward, a pro-business group backing Rep. Tom Emmer, the conservative Republican-endorsed gubernatorial candidate.
That led to a week of bruising reaction from Target employees and gay-rights activists that included a nationwide e-mail campaign and petition claiming 15,000 signatures.
Target claims the donation was made because the company supports Emmer’s fiscal policies, not his social policies which are viewed by some as anti-gay-rights. It also adamantly contends it remains “unwavering” in its support for the GLBT community through policies such as extending benefits to domestic partners. Even so, that has not saved Target from controversy, as many of its gay and lesbian employees, not to mention customers, are incensed by the support for Emmer.
Whether this outrage is justified or not, it is evidence that corporations wade into candidate races at their peril. The fact that this is even a story demonstrates that for-profit corporations are very careful, and hesitant, in picking sides in candidate races. What do corporations value more, customers or candidates? If they pick any candidate, they are going to anger many loyal customers, even if the reason they pick that candidate has nothing to do with why the customers are angry.
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