Congress Shall Make No Law...

union_labelWhen the Supreme Court issued its decision in Citizens United v. FEC, many said that it would lead to corporations using their vast treasuries to overwhelm their competition. The New York Times, for instance, said that the opinion “opened the floodgates for big business and special-interest dollars to overwhelm American politics.”


The evidence from several months later, though, shows that these dire predictions have not quite panned out. The Washington Post and Mother Jones have both reported about a number of new organizations that have begun to speak in the wake of Citizens United.  Rather than General Electric and Microsoft doing the talking, though, it’s been the AFL-CIO, the SEIU and the AFSCME. All three unions have run radio and television ads in recent primaries that explicitly called for the election or defeat of candidates.


This kind of “express advocacy” was illegal until the Supreme Court held in Citizens United that the First Amendment prohibits laws, passed by Congress, that prevent groups of citizens from speaking out during elections. Hopefully other groups - including corporations - will soon join these unions and make their voices heard.  After all, the Supreme Court in Citizens United said that “it is our law and our tradition that more speech, not less, is the governing rule.”  Perhaps if groups continue to speak out and the republic does not end as some have predicted, we will one day come to view the campaign finance laws in much the same way we now view the alien and sedition acts.


Image Source: Beige Alert

mouthtape“We want the DISCLOSE Act” is a website at which people can be "citizen co-sponsors" of the Act by signing an online petition.  The site contains a list of these "co-sponsors," but it provides an option, taken advantage of by several signers, to remain anonymous.  Might this option exist because the folks behind the petition effort—Senators Chuck Schumer, Russ Feingold, and Patrick Leahy—know that more people will sign if they don’t have to reveal their personal information to the public?


Of course it does.  Something to keep in mind the next time an advocate of mandatory disclosure laws—including the DISCLOSE Act, which Senator Schumer has admitted is intended to deter corporations from speaking—tells you they don’t chill speech.

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 and supporters 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.  schumerHis 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.