Congress Shall Make No Law...

Last week I, along with Ilya Shapiro of Cato, debated Rick Hasen and Jamin Raskin over the Citizens United decision.  Here's a video of the debate.  Enjoy.





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.”

At her blog, Crossroads, CBS News Chief Legal Correspondent Jan Crawford is commenting on the issues discussed during Solicitor General Kagan’s confirmation hearings. In her most recent post, she offers a “Reality Check” in rebuttal to the assertion that Citizens United reversed over 100 years of precedent and was an example of the Roberts Court “cozying up to corporations.”

During his opening statement yesterday at Solicitor General Kagan’s confirmation hearings, Senator Al Franken unsurprisingly took the opportunity to criticize the U.S. Supreme Court’s decision in Citizens United v. FEC. Arguing that the Motor Vehicle Safety Act and the Clean Air Act wouldn’t have passed if companies like General Motors and Standard Oil had been allowed to run ads right before election season against the politicians who supported that legislation, he concluded that:


So here’s my point, General Kagan: Citizens United isn’t just about election law. It isn’t just about campaign finance.


It’s about seat belts. It’s about clean air and clean water. It’s about energy policy and the rights of workers and investors. It’s about health care. It’s about our ability to pass laws that protect the American people even if it hurts the corporate bottom line.


Put aside for a moment Senator Franken’s apparent belief—shared by other advocates of “campaign finance reform”—that the American people aren’t smart enough to hear corporations’ arguments on policy issues and then decide for themselves. (For my rebuttal of this ridiculous claim, click here.) Also put aside the fact that corporations hardly have a monolithic view on all of the issues he listed.


The most important thing about Senator Franken’s statement is that it is a clear admission by him that he favors restrictions on corporations' speech because he does not like the policy results that their speech may produce. Presumably, if every corporation liked all the policies that he does, he’d be fine with them speaking as much as possible.


Sorry, Senator Franken. The First Amendment doesn’t say, “Congress shall make no law . . . abridging the freedom of speech, except when Congress doesn’t like what the speaker has to say.”

puppetmasterTom Bowden blogs at Voices for Reason about the many states that offer subsidies to filmmakers and the fact that those subsidies increasingly come with strings attached. Tom makes the quite sensible point that subsidies are a violation of taxpayers’ rights not to have to fund films at all, let alone those with which they might disagree.  


But this should also remind us that when the government pays the piper, it gets to call the tune. We should keep that in mind as the challenge to Arizona’s misnamed “Clean Elections” Act makes its way to the U.S. Supreme Court next term. (The case is being litigated by the Institute for Justice and the Goldwater Institute, which will be filing petitions for review in the U.S. Supreme Court later this summer.)


In Citizens United v. FEC, the U.S. Supreme Court invalidated a major part of the Bipartisan Campaign Reform Act of 2002, also known as McCain-Feingold, which banned corporations and unions from running certain types of political advertisements close to elections.  Today the Supreme Court summarily rejected (.pdf) a challenge to another major part of McCain-Feingold, the so-called “soft-money ban,” which limits the amount of money that individuals may donate to political parties.  The case is Republican National Committee v. FEC, No. 09-1287.


Lovers of liberty needn’t worry.  As Professor Rick Hasen notes, the Court’s one-sentence order does not signal a reversal of its recent trend in favor of greater protection for free speech and against campaign finance laws.  Challenges to McCain-Feingold are subject to a special procedure—the cases are tried before a three-judge panel, and the losing party has a direct right of appeal to the Supreme Court.  What this means in practice is that if the Court rejects the case, as it did here, that counts as a summary affirmance of the three-judge panel’s opinion.  Because the Court does not provide the reasoning for the summary affirmance, the ruling is not necessarily an endorsement of the lower court’s decision


So what can we take away from the summary affirmance?  Not much.  We know that three Justices—Kennedy, Scalia, and Thomas—opposed the summary affirmance and would have had the case argued before the Court, presumably to reverse the lower court and strike down the soft money ban as it applied to the Republican National Committee.  Beyond that, the only take-away is that the soft-money ban has been granted at least a temporary reprieve.  But it will undoubtedly be subject to future challenges, and this summary affirmance does not foreclose the Court from holding the law unconstitutional in the next case to raise the issue.


Additional commentary from our friends at the Center for Competitive Politics is available here.

tall-stack-of-papersThere used to be a saying that a conservative is a liberal who has been mugged. On that theory, one might say that an opponent of campaign finance laws is, well, someone who has had to comply with them. It’s not a terribly principled reason to oppose the laws, perhaps, but we’ll take our converts where we can get them.


Mickey Kaus, who just ran for office in California, might be a candidate for just such a conversion. On his blog, he quotes an FEC publication informing him that even though he lost, his campaign committee “must continue to file periodic reports after submitting a termination report until you receive Commission approval for termination.”


Got that? You need FEC permission to stop being a committee. (God forbid the IRS gets wind of this. We all might need the government’s permission to die).


Money can’t buy you love.  Or an election, it turns out.


A recent study that looks at self-funded candidates proves that “vanity candidacies” are just about as popular with the public as vanity books, vanity movies and other “look at me” projects.  In the past decade, self-funded candidates—i.e., those who raised more than half of all their campaign contributions from themselves or an immediate family member—have pumped more than $ 900 million into their own campaigns.  But despite these large amounts, self-financed candidates have prevailed only about 11 percent of the time.


This study demonstrates two important things.  The first is that elections are not a contest of who has more cash; candidates and their views do in fact matter.  The second is that when candidates don’t have to raise funds from the electorate—either because they self-fund or get their campaign cash from the government—they are not subject to the discipline of the political marketplace.  So what you often end up with are maladroit candidates whose views often fail to reflect those of their would-be constituents