Congress Shall Make No Law...

Make No Law readers may recall that my colleague Steve Simpson and I recently had an op-ed in The Wall Street Journal, discussing how comic-pundit Stephen Colbert's experience setting up a "Super PAC" had unintentionally demonstrated how many burdens on political speech still remain in the wake of Citizens United.  In the video below, John Samples, the director of the Cato Institute's Center for Representative Government, discusses the results of Colbert's recent appearance before the Federal Election Commission and explains why the joke is still on Colbert:


IJ’s victory last Monday before the U.S. Supreme Court in our challenge to Arizona’s so-called “Clean Elections” law was a big win for people who believe that the First Amendment prohibits government from burdening spending on political speech. It was also a strong reaffirmation of the principle that “Individual freedom finds tangible expression in property rights.” The First Amendment would be largely meaningless if government could impose burdens on the use of property—whether in the form of money, or computers, or newsprint and ink—to broadcast speech beyond the range of our individual voices.



The 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.


Image Source: timkelley

minnesotaMonday’s Supreme Court decision on Arizona’s “Clean Elections” law reaffirms that the government may not burden a person’s speech by forcing them to choose between remaining silent or creating an advantage for their political opponent.  Minnesota’s current public financing law appears to run afoul of the new ruling.


Minnesota caps candidate’s spending when she chooses to receive public money.  But if she runs against an opponent who does not receive public money and who spends more than a government-approved amount on his political speech, then Minnesota lifts the publicly financed candidate’s spending limits, and allows her to still receive the public money.


For example, in last year’s gubernatorial contest, Tom Emmer received public financing and agreed to spending limits.  But because his opponent, Mark Dayton, refused public dollars to fund his campaign, Emmer’s limits were lifted and he got to keep all the public money lavished on his campaign.  Minnesota punishes traditionally funded candidates like Dayton for daring to exercise their right to freely engage in political speech.  It does so when it triggers great financial benefits to government-funded candidates when they face candidates who opt only to receive voluntary, private contributions. Minnesota punished Dayton for speaking by allowing his political opponent to double dip on contributions—getting state money AND private contributions—as a direct consequence of his decision to speak.


Originally, Minnesota’s system, just like Arizona’s, included matching funds and burdens on independent groups, but those were declared unconstitutional in 1994. Minnesota’s system of allowing government-funded candidates to double dip into the political contribution well when their traditionally financed opponents choose to speak more than a government-prescribed amount is a practice that is bound to chill speech and remains constitutionally questionable..

The U.S. Supreme Court this morning handed down a 5-4 ruling in the consolidated cases Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett and McComish v. Bennett, striking down Arizona’s speech-squelching “Clean Elections” law.  The majority opinion, written by Chief Justice Roberts, concluded:


Arizona’s program gives money to a candidate in direct response to the campaign speech of an opposing candidate or an independent group. It does this when the opposing candidate has chosen not to accept public financing, and has engaged in political speech above a level set by the State. The professed purpose of the state law is to cause a sufficient number of candidates to sign up for public financing, which subjects them to the various restrictions on speech that go along with that program. This goes too far; Arizona’s matching funds provision substantially burdens the speech of privately financed candidates and independent expenditure groups without serving a compelling state interest.


The Court also strongly rejected the idea that laws like Arizona’s could permissibly be used to “level the electoral playing field”:


“Leveling the playing field” can sound like a good thing.  But in a democracy, campaigning for office is not a game.  It is a critically important form of speech.  The First Amendment embodies our choice as a Nation that, when it comes to such speech, the guiding principle is freedom—the “unfettered interchange of ideas”—not whatever the State may view as fair.


The full opinion is available here.


Here's a brief, three-minute video explaining how Arizona’s so-called “Clean Elections” law burdened free speech:




This is IJ’s fifth case before the Supreme Court and our fourth victory.  IJ’s only loss before the Court came in Kelo v. City of New London, the infamous 2005 ruling that sparked a nationwide backlash resulting in 43 states enacting legislation to curtail eminent domain abuse.


The Institute for Justice is joined in this victory by the Goldwater Institute, which represented plaintiffs in the consolidated case McComish v. Bennett. Goldwater’s statements on today’s victory is available here.


We will continue updating this post throughout the day with links to early coverage of the Court’s ruling.




Additional coverage of Monday's decision:


ABA Journal

ABC News

Arizona Daily Star

Associated Press

Balkinization (Heather K. Gerken)

Ballot Access News


Brennan Center for Justice

Campaign Finance Institute

Cato @ Liberty

Center for Competitive Politics


Common Cause & Public Campaign

Connecticut Mirror

Democracy 21


Heritage Foundation's Foundry Blog

The Hill

Justice at Stake

Los Angeles Times

National Journal

New York Times

New York Times: Room for Debate Blog


Paul Clement (in Slate)

People for the American Way

Phoenix New Times


Portland Press Herald

Reason: Hit & Run


Rick Hasen (in The New Republic)

Stephen Hoersting (in National Review)


Tuscon Weekly


USA Today

Wall Street Journal

Washington Examiner

Jeff Patch has a must-read account of the latest affront to unfettered speech on the Internet.  The Federal Election Commission on Wednesday denied a request by the social-media website Facebook that would have allowed the company to sell advertising space to candidates and political parties without requiring the ads to contain a lengthy disclaimer stating who paid for the ad.  Because Facebook ads are so small, the ruling makes them far less practical, in turn making it harder for poorly funded candidates to use Facebook as a cheap way to reach out to voters.


Facebook had argued that their ads should be treated like campaign pens or buttons, which are exempt from the disclaimer requirement.  That wasn’t a bad argument, considering the FEC had ruled less than a year ago that short ads on Google were not required to contain a full disclaimer.  But as Patch reports, the three Democratic Commissioners weren’t buying it this time:


“The Internet is nothing like pens and buttons. It has a range of fabulous capabilities,” said [FEC] Commissioner Ellen Weintraub. “My Facebook app on my phone is really smart . . . I will get a chime telling me that my daughter poked me.”


In the end, the FEC denied Facebook’s request by a deadlocked 3-3 vote along party lines. For the whole story, check out Patch’s great write-up in the Daily Caller.

Congratulations are due to friend-of-IJ Steve Hoersting, who, along with Dan Backer, Benjamin Barr, and the Center for Competitive Politics, just scored an early victory in Carey v. FEC, a challenge to federal campaign finance laws.


For those who aren’t well-versed in campaign finance law, the legal issue in Carey is somewhat arcane; it concerns whether so-called “Super PACs” can establish separate bank accounts that will raise limited funds for the purpose of making contributions directly to political candidates. But even though the legal issue is complicated, the principle Carey vindicates couldn’t be simpler: The Federal Election Commission cannot simply ignore court rulings against it.



The fact is, this case never should have had to go to court in the first place. The plaintiffs, retired Adm. James J. Carey and the National Defense Political Action Committee, wanted to engage in activity that the D.C. Circuit Court of Appeals had already ruled was perfectly legal in a case called EMILY’s List v. FEC.


But things are never that simple when you’re dealing with the FEC, whose business, as the U.S. Supreme Court has recognized, “is to censor.” The FEC refused to give Adm. Carey and his group permission to operate, leaving the court as their only alternative. This is a perfect illustration of what the Supreme Court was talking about in Citizens United v. FEC when it noted that federal campaign finance laws “function as the equivalent of prior restraint by giving the FEC power analogous to licensing laws implemented in 16th- and 17th-century England, laws and governmental practices of the sort the First Amendment was drawn to prohibit.”


Lucky for Adm. Carey and NDPAC, Judge Rosemary Collyer of the D.C. District Court knocked this one out of the park. Judge Collyer thought the plaintiffs’ case was so strong that she granted them a preliminary injunction, which will prevent the government from enforcing the campaign finance laws against them and allow them to speak freely in the 2012 election while the case goes forward.


Judge Collyer’s ruling is notable not just for reaching the correct result, but because it takes the FEC to task for its approach both to regulation and litigation. Her ruling describes the FEC’s unconvincing attempt to distinguish the EMILY’s List case as “plain wrong,” and is particularly critical of the FEC’s “questioning of Plaintiffs’ intentions,” which she concludes “does not well serve the agency or its argument.”


All in all, a great way to kick off the case, which will hopefully move quickly to a final ruling on the merits. Congratulations again to all involved for their hard work.


The full text of the Carey opinion is available here (.pdf).

My colleague Steve Simpson has an excellent op-ed in today’s edition of The Wall Street Journal, discussing the prosecution of former Senator John Edwards for alleged campaign-finance violations.  Here’s a snippet:


It seems that everyone other than the most devoted supporters of campaign-finance laws thinks that the Justice Department’s indictment of John Edwards is overkill. Mr. Edwards cheated on his wife while she was dying of cancer, then he used over $900,000 given by two campaign donors to cover it up. In the process, he paid off an aide to pretend that he was the father of Mr. Edwards’s love child. It’s behavior that would make even Anthony Weiner blush.


But being a creep is not illegal. So why is any of this the government’s business?


The short answer is that campaign-finance laws make it the government’s business. Those who are outraged at the Edwards indictment should take note that when we have laws that make helping candidates illegal, prosecutions like this are inevitable.


Be sure to check out the whole thing.

Cato Institute Senior Scholar and noted jazz critic Nat Hentoff makes the case for constitutional protection of anonymous speech: