Congress Shall Make No Law...
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.

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.

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.”guy-wrapped-in-red-tape


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.

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.

CQ reports that more groups are taking advantage of the recent decisions in Citizens United and to set up independent speech groups for the upcoming elections. 

After the Supreme Court upheld Moneythe 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.

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.

Sic semper campaign finance lawsEarlier today, the U.S. Senate voted 57 to 41 on a procedural motion to end debate on the DISCLOSE Act.  Because such motions must get 60 votes in order to pass, the DISCLOSE Act is likely dead for the time being. 


But the drum of censorship continues to beat on.  The Hill reports that Charles Schumer, the Senator who was the chief sponsor for the Act, has vowed that the Senate “will go back at this bill again and again and again until we pass it.”  Like a creature from a horror movie, expect to see the zombie DISCLOSE Act come back to haunt us again sometime this fall.


Image Source: itspaulkelly

The debate on the DISCLOSE Act is coming to a head today. 



Our friends at the Center for Competitive Politics reported that the Senate will vote today on whether to cut off debate on the Act.  It appears that the Senate leadership doesn’t have the sixty votes it needs to end the Republican filibuster of the bill, but has decided to move forward anyway in the hopes of scoring political points ahead of the mid-term elections.


The DISCLOSE Act’s sponsors and supporters weren’t exactly subtle in their attempt to portray the bill as merely promoting openness and transparency.  After all, they named the thing the “Democracy is Strengthened by Casting Light on Spending in Elections” Act.  But despite these efforts, it’s been clear from the start that the Act’s purpose was to silence disfavored speakers.  As we have noted before, Senator Charles Schumer has said that the Act’s “deterrent effect should not be underestimated.”  Representative Hank Johnson (D-GA) told his fellow House Democrats that they should vote for the Act because, otherwise, “we will see more Republicans getting elected.”  And, just yesterday, President Obama said that passing the DISCLOSE Act would help “reduc[e] corporate and even foreign influence over our elections. . . .”


The Supreme Court in Citizens United struck down the ban on corporate independent advocacy because it acted “to silence entities whose voices the Government deems to be suspect.”  The DISCLOSE Act tries to silence those suspect voices once more.  But the First Amendment doesn’t let the government play favorites with freedom of speech.  Here’s to hoping that the Senate has taken that lesson to heart.