The Boston Globe reports, somewhat belatedly, on the Federal Election Commission’s decision last month to classify the nonprofit group Citizens United as a “press entity.” The consequence of that decision is that Citizens United—which has to date produced 14 documentaries—is spared from the intrusive and burdensome disclosure requirements that often apply to groups that spend money on political speech.
Predictably, supporters of stringent campaign finance laws are dismayed. What’s remarkable, though, is that none of them express concerns with the press exemption generally. Yet the very existence of the press exemption seriously undermines the case for campaign finance disclosure for independent groups.
When a traditional press entity like, say, the Boston Globe, publishes a political editorial, readers don’t have access to information about the paper’s financing. Instead, they have to evaluate those political arguments on their merits. So-called “reformers” seem to have no problem with this. But if we trust the public to rationally evaluate corporate messages that just happen to come from the institutional press, there is absolutely no reason why we should not trust the public to rationally evaluate messages from nontraditional forms of media, whether it be a blog post, a 30-second television ad, or a two-hour documentary.
The real outrage is not that Citizens United was deemed worthy of the press exemption, but that others who engage in equally valid exercises of their First Amendment rights do not enjoy that same privilege. No one should have to prove to a government bureaucrat that they have earned the right to speak free from government burdens—the First Amendment guarantees that right to all of us.
Proponents of campaign finance regulation often defend the constitutionality of their proposals with the slogan “money isn’t speech.” But as scholars like Eugene Volokh have recognized, this facile argument is easily debunked by applying it to other constitutional rights:
Likewise, money isn’t education, and it isn’t lawyering. Yet a law that capped private school tuitions at $2000 (not just limited the amount of government-provided scholarships, but capped private spending by parents for tuition) would be a serious, likely unconstitutional, burden on the right to educate one’s child at a private school. Likewise, a law that barred wealthy defendants from spending more than $20,000 — or even $200,000 — for assistance of counsel would violate the Sixth Amendment. Even if for some reason you thought that these laws should be upheld, the response that “it is quite wrong to equate money and [education / lawyering]” would be an unsound response.
Moreover, this idea—that money is often a critical component to the meaningful exercise of rights—is hardly a modern insight. Our Founding Fathers were well aware of the connection between property and political advocacy. Indeed, this recognition is reflected in the closing words of the Declaration of Independence:
And for the support of this Declaration, with a firm Reliance on the Protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.
Here’s wishing everyone a safe and happy Independence Day.
It looks like people are waking up to the fact that the DISCLOSE Act’s whole raison d’etre is to squelch speech. As DISCLOSE made its way through the House, only a few organizations were talking about how its sponsors
frankly admitted that they were trying out to silence the voices
of people and groups they didn’t like.
In recent days, though, that trickle of opposition has become a torrent. Editorial boards, opinion writers, and columnists from across the country and on both sides of the political aisle are criticizing the DISCLOSE Act and the chilling effect it would have on free speech. Some have even noted that the DISCLOSE Act, if passed, would kill off the traditional 30 second political ad. After all, who wants to pay for an ad in which almost half the time must be devoted to government-mandated disclaimers?
It’s good to see that more and more people are starting to talk about the DISCLOSE Act. While the House has passed the DISCLOSE Act, the Senate has yet to take up the bill. As the next act in this play unfolds, Americans should continue to stand up in favor of the First Amendment and ensure that everyone, not just certain entrenched interests, can speak freely about candidates and the issues that they care about the most.
Along with Joseph Gay, one of IJ’s Constitutional Law Fellows, I’ve got an op-ed on the DISCLOSE Act in today’s Daily Caller. It begins:
What’s more important than putting together a new budget for the federal government? If you’re one of the 219 representatives whose vote secured the passage of the so-called “DISCLOSE Act” in the House last Thursday, the answer is simple: providing incumbents with job security.
For the rest, click here.
Politico recently reported that Senator Chuck Schumer has been sending out fundraising letters. No problem there, but in his pitch, Schumer again admits why he sponsored the “DISCLOSE” Act in the U.S. Senate. His goal is “reining in corporate spending on political ads through the DISCLOSE Act.”
Hmm. A politician wants to silence his opposition and is willing to use government force to do so. It is a shame we don’t have a Constitution in place that would stop him from abusing his power and U.S. Supreme Court precedents directly on point that would say such actions would be unconstitutional.
Oh, wait. We do.
Schumer has said that the “deterrent effect” that the DISCLOSE Act would have on corporations and other groups’ speech “should not be underestimated.” But as we at IJ (and more importantly, the Supreme Court) have said time and again, it is not for the government to decide who may speak and who must remain silent. The First Amendment protects the freedom of speech for all Americans, not just those whom the party in power likes.
Image Souce: Atomische • Tom Giebel
Hans von Spakovsky has a terrific article
at Heritage's blog arguing that the DISLCOSE Act is the modern equivalent of the Alien and Sedition Acts. Check it out.
John McCain is walking a tightrope. In his previous life, he served as the lead Republican voice in favor of campaign finance “reform” and was one of the key sponsors of the Bipartisan Campaign Reform Act of 2002. In fact, his role in that legislation was so vital that the law is frequently referred to as “McCain-Feingold.”
Among other things, one provision of McCain-Feingold banned corporations and unions from running “electioneering communications”—advertisements that mentioned federal candidates by name within a certain number of days before an election. During oral arguments in Citizens United v. FEC last year, Justice Scalia said, “I doubt that one can expect a body of incumbents to draw election restrictions that do not favor incumbents.” Senator McCain took umbrage at that and decried Scalia’s comment as ”an affront” to the ”decent, honorable men and women who have served this nation in these halls for well over 200 years.”
The Senator McCain of 2009 therefore saw “McCain-Feingold” as the product of a publicly spirited Congress that is only looking out for Americans’ best interests. So he must view other politicians’ campaign finance efforts with equal magnanimity, right? Not quite. After the House passed the DISCLOSE Act last Friday, McCain jabbed, “It’s no surprise that Democrats craft a bill that favors their supporters.”
So I guess the rose-colored glasses are off now. Here’s to hoping that Senator McCain has had an epiphany and comes to realize that when Members of Congress legislate on campaign finance matters, they typically design the laws to give themselves a leg up on their political opponents. The Founders knew of this constant temptation, which is why they said in the First Amendment that “Congress shall make no law . . . abridging the freedom of speech.”