Congress Shall Make No Law...

In response to intense lobbying by a number of campaign “reform” groups, Senator Scott Brown has said that he will oppose the DISCLOSE Act because it “advances the political agenda of the majority party and special interests in an effort to gain a tactical and political advantage little more than 100 days before an election.” Brown contrasts DISCLOSE with McCain-Feingold, which he claims was “an honest attempt to reform campaign finance laws.”

 

One can take issue with Brown’s view of McCain-Feingold—indeed, during debates over the law, members of Congress expressed more disdain for the negative ads it banned than for the corruption it was supposed to prevent—but I’m willing to cut Brown some slack because he at least understands that DISCLOSE is all about partisan politics. In fact, I’d go a lot farther than that. The DISCLOSE Act shows that the desire to censor speech is alive and well among America’s political elites.

 

Of course, campaign reform groups are not giving up easily. As Roll Call reports, they’ve vowed to continue pressuring Brown “through a combination of personal lobbying and messaging efforts aimed at Massachusetts.” (For some reason, reformers never have a problem with efforts like these when they are carried out by people who support their agenda. But I digress.) Ironically, they’ve even threatened to “make the case over the coming weeks that his opposition is tantamount to supporting the kind of ‘Swift Boat’ ads that helped sink the 2004 presidential campaign of Brown’s home-state colleague, Sen. John Kerry (D).”

 

Wait, doesn’t that count as “Swift Boating” itself? This is all so confusing. What isn’t confusing is the contempt supporters of DISCLOSE have for the First Amendment and for anyone who dares disagree with their political agendas.

 

Yesterday the U.S. Circuit Court of Appeals for the Second Circuit issued an important ruling (.pdf) for First Amendment rights, striking down Connecticut’s unconstitutional “matching funds” law in the case of Green Party of Connecticut v. Garfield.  The court specifically rejected the Ninth Circuit’s decision in McComish v. Bennett that refused to strike down Arizona’s largely identical matching funds scheme.  The Institute for Justice, which has been challenging Arizona’s law in McComish, wrote a friend-of-the-court brief (.pdf) in the Second Circuit in support of the victorious Green Party.

 

As we’ve described previously on this blog, matching funds discourage privately funded candidates and outside groups from speaking because, if those groups spend more than a certain amount on political speech, the government starts cutting checks directly to their government-financed opponents.  The Second Circuit’s ruling deepens a split among the federal courts of appeals on whether matching funds are constitutional, making it all the more likely that the U.S. Supreme Court will grant IJ’s forthcoming appeal in the McComish case.

 

If the Supreme Court takes on the issue—as it should—matching funds will likely be held unconstitutional.  And that’s not just our opinion—as the Associated Press reports, even so-called “reformers” are starting to look for alternatives:

 

“The handwriting was on the wall with the trigger provisions” when the Supreme Court made its ruling [temporarily halting Arizona’s matching funds], said Karen Hobert Flynn, vice president for state operations at Common Cause and a Connecticut resident. “They signaled that they don't like trigger provisions and they're on their way out.”

Nick Nyhart, president and CEO of Public Campaign, a Washington, D.C.-based public financing advocacy group, said there are other ways to help publicly financed candidates who face wealthy opponents.

 

We will continue to keep our readers updated as we move towards appealing McComish to the Supreme Court.

castingballotThe Los Angeles Times reports on spending by independent groups in three California elections, raising alarm that “insurance companies, lawyers and other interests were calling most of the shots in the three campaigns.”  These concerns were echoed by Dan Schnur, chairman of the California Fair Political Practices Commission (FPPC), who reacted to this independent speech by claiming that it “makes a mockery of the rules designed to create a level playing field.”

 

These sorts of overwrought claims are distressingly common in reporting on campaign finance, and this isn’t the first time the FPPC has been critical of the role of independent speech in elections (see, for example, their 2008 report on the phenomenon, the cover of which features the California capital building being menaced by a giant gorilla hurling $100 bills).  But these claims also fundamentally misunderstand the role that independent speech plays in elections.

 

Contrary to the view of many proponents of campaign finance regulation, voters are not automatons—interest groups cannot simply pour opinions into their heads.  Voters must be persuaded, and the groups profiled in the Los Angeles Times article are simply attempting, through independent political advocacy, to persuade voters to take action at the ballot box.  Those efforts may succeed or fail and, as the FPPC’s 2008 report shows, such efforts often do fail.  But as the Supreme Court recognized in Citizens United v. FEC (.pdf), “[t]he fact that a corporation, or any other speaker, is willing to spend money to try to persuade voters presupposes that the people have the ultimate influence over elected officials.”  In other words, it’s the voters who call the shots.

The plaintiffs in Minnesota Citizens Concerned for Life, et al. v. Swanson, et al., 10-cv-2938, which we discussed here last week, have filed a motion for a preliminary injunction.  The motion is scheduled to be heard before the district court on August 20, 2010, although the plaintiffs have asked for expedited consideration.

 

The motion argues, among other things, that after Citizens United “The only constitutionally cognizable interest in limiting contributions is the interest in preventing quid-pro-quo corruption.”  This interest, under the seminal case Buckley v. Valeo (1976), is only implicated with “large” contributions, so contributions with a per-donor cap, such as the $2,300 cap in the last federal election cycle, satisfy that interest, even when a corporation is giving the money to a party or candidate.  Thus, according to the motion, corporations should be able to give money directly to parties and candidates, something currently illegal under Minnesota, and federal, law.

 

We’ll keep a close eye on this case for our readers.

Click here to go to his new column on these topics. He begins:

 

Two splendid recent developments have highlighted how campaign finance "reforms" have become the disease they pretend to cure. In Arizona and in Congress, measures ostensibly aimed at eliminating corruption or the "appearance" thereof illustrate the corruption inherent in incumbents writing laws that regulate political competition by rationing political speech.


That’s exactly right: The idea that incumbents write “campaign finance” laws with no eye toward protecting their reelection prospects is—as we have previously noted—absurd.  

 

For more of our recent commentary on the DISCLOSE Act, click here, here, and here.

 

IJ is challenging the matching funds provision of Arizona’s “Clean Elections” system. For some of our recent commentary on that system, click here and here.

finger-pushing-dominosIn a new case that builds off of IJ’s challenge to Arizona’s so-called “clean elections” system, Florida gubernatorial candidate Rick Scott is challenging that state’s similar system of taxpayer-financed campaigns.  Both  states' laws discourage nonparticipating candidates from robustly exercising their First Amendment rights, because once a nonparticipating candidate  spends more than a certain amount  to speak out to the electorate, the government starts writing checks directly to his opponent.  As political scientist David Primo documented (.pdf) in the Arizona case, the constant risk of triggering these matching funds creates incentives to delay or withhold spending on political speech, skewing the political debate.

 

In addition to Mr. Scott’s lawsuit, Floridians will have the opportunity to vote in November for a constitutional amendment that would repeal Florida’s system of taxpayer-financed elections.  And if the Supreme Court accepts review of IJ’s challenge to Arizona’s law—as it has hinted it might—it could invalidate these schemes nationwide.  One way or another, it looks like the days of taxpayer funds being used to squelch political speech in Florida are numbered.

Over at the Volokh Conspiracy, Eugene Volokh has a couple of interesting observations on the Washington Post's report that unions are outspending corporations on campaign ads.

There’s a new campaign finance lawsuit challenging the State of Minnesota’s various restrictions on corporations engaging in political speech.  The case, Minnesota Citizens Concerned for Life, et al. v. Swanson, et al., 10-cv-2938, was filed yesterday in the U.S. District of Minnesota.  Judge Donovan Frank is the judge.

 

According to the complaint (not publically available online yet), the plaintiffs argue that Minnesota’s new law, although recently amended in the wake of the Supreme Court’s ruling in Citizens United, nevertheless violates the First Amendment.  This is because, among other things, it requires corporations to spend their money advocating the election or defeat of a candidate through a political fund and not directly from their treasuries.  This argument relies upon the Court’s statements in Citizens United that forming separate entities, such as political action committees (“PACs”) “are burdensome alternatives; they are expensive to administer and subject to extensive regulations.”  It’s similar to the argument IJ made, in the non-corporate context, in SpeechNow.org v. FEC.

 

Interestingly, the complaint also challenges Minnesota’s ban on corporations directly contributing money to candidates.

 

Jim Bopp of the James Madison Center is an attorney on the case, as is the Minnesota firm of Mohrman & Kaardal.