Earlier this week the Huffington Post reported on a recent press conference in Washington, D.C., about efforts to amend the First Amendment to overturn Citizens United v. FEC. The headline read “Citizens United Amendment Urged By Grassroots, Federal Lawmakers.” In the story, U.S. Senator Tom Udall says, “We have developing here a grassroots movement.”
Who, exactly, are the “grassroots” to which they refer? According to the story, 14 people spoke at the press conference. Of the 14, 13 were elected officials; one was a private citizen.
In other words, approximately 93 percent of the people calling to overturn the decision were people currently in power—the very people who stand to benefit most from shutting down the independent political voices that Citizens United helped free. This was not the grassroots; at best, it was a grassroot (note the singular noun).
The make-up of the press conference tells us everything we know about the push to reverse Citizens United. Many elected officials—like those at this press conference—do not like other people’s free speech and they especially do not like it when critical speech is directed at them. If they succeed in amending the Constitution to overturn Citizens United, these same officials could pass laws that would make it impossible for people to amass enough resources to challenge their actions, thus effectively immunizing themselves from criticism.
This “grassroot” press conference demonstrates that the debate over Citizens United is not about “corporate personhood,” “fighting oligarchy” or “defending democracy.” It is about the desire of those in power to ensure that they remain free from criticism and political challenge. That is a particularly poor justification to start editing freedoms out of the First Amendment.
Some readers of Make No Law may have seen a recent study released by the Center for Public Integrity concluding that New Jersey is the state with the lowest risk of corruption in the country. Writing in The Wall Street Journal today, IJ Attorney Paul Sherman and University of Rochester Professor David Primo take a skeptical look at that study and uncover many problems:
For starters, the study never actually defines what it means by corruption. Instead, the risk of corruption is defined by the presence or absence of certain laws—such as strict campaign-finance limits and lobbying disclosure—that good-government groups promote. But without a working definition of corruption, it is impossible to determine whether these sorts of reforms are the appropriate remedy.
Is regulation of state insurance commissions, for example, as important as lobbying disclosure as a means to combat corruption? Who knows? The study gives equal weight to both. Yet that's like assuming aspirin is as good as a herbal supplement because some people think both can cure headaches.
Wall Street Journal subscribers can read the whole thing here.
Today is the two-year anniversary of the D.C. Circuit Court of Appeals’ unanimous ruling in SpeechNow.org v. FEC, holding that limits on the right of Americans to pool money to pay for independent political advertisements are unconstitutional. That ruling made possible the creation of so-called “super PACs,” which have played a major role in the 2012 Republican presidential primaries. The Institute for Justice is proud to have worked with the Center for Competitive Politics to represent the plaintiffs in SpeechNow.org, and is committed to defending that ruling in the courts of law and the court of public opinion.
Yesterday the Wisconsin Supreme Court issued a very anticlimactic decision in a challenge to one of the most speech-squelching laws in the country. The court split 3-3 over whether Government Accountability Rule 1.28 violates the First Amendment and the Wisconsin Constitution by requiring everyone to register with the government who, in the 60 days before a general election, spends more than $25 and so much as mentions a candidate for office in a negative or positive light. Three justices thought the rule was constitutional while the other three thought the case should not have been granted in the first place. The case was an “original action,” meaning it was only ever before the Wisconsin Supreme Court, so the legal effect of the case is it’s as though it never happened.
We have commented on this case before, and the Institute for Justice filed a friend-of-the-court brief (pdf) in the case last spring.
But, this isn’t the end of the story. There are two pending federal court challenges to Rule 1.28 that have been frozen in carbonite since the Wisconsin Supreme Court accepted the case in late 2010. Those lawsuits can now proceed, so stay tuned . . .
Readers of Make No Law may recall the case of Bluman v. FEC, a challenge to the federal law that prohibits noncitizens, even those who lawfully reside in the United States, from spending any money to influence state or federal elections. In January the U.S. Supreme Court summarily affirmed a lower-court ruling upholding the law.
The Institute for Justice had filed a brief urging the U.S. Supreme Court to review the case and to strike down the law as it applied to aliens lawfully living in the United States. Our reasons for filing the brief were twofold. First, we believe that the First Amendment protects a preexisting natural right to engage in peaceful political speech and association—a right on which citizens and permanent residents hold no monopoly. Second, we knew that a victory for the government would be used in future cases to justify restrictions on U.S. citizens and, ultimately, to undermine the Supreme Court’s landmark ruling in Citizens United.
Less than two months after the Supreme Court’s summary affirmance in Bluman, that is precisely what we have seen. First came the Montana Supreme Court’s defiant ruling in Western Tradition Partnership, Inc. v. Attorney General, which cited Bluman to argue that the Citizens United decision was a narrow, fact-bound ruling, rather than the broad repudiation of government censorship that it obviously was. And now we have this argument from the Federal Election Commission in Wagner v. FEC, a challenge to a federal ban on political contributions and expenditures by federal contractors:
Contrary to the plaintiffs’ suggestion that only concerns about corruption or its appearance can justify FECA restrictions . . . protecting the integrity of the federal government from improper outside influence has been deemed an adequate basis, by itself, to justify a complete ban on contributions by certain individuals. See Bluman v. FEC, 800 F. Supp. 2d 281, 292 (D.D.C. 2011) (upholding ban on foreign national contributions in 2 U.S.C. § 441e), aff’d, 132 S. Ct. 1087 (2012).
That the FEC would latch onto Bluman as a justification for censoring speech by U.S. citizens is not surprising— Bluman is one of the FEC’s few recent victories and, as the Supreme Court noted in Citizens United, the FEC’s “business is to censor.” And it still remains to be seen what will happen on the merits in both the Wagner case and Western Tradition Partnership (many are predicting that the Supreme Court will summarily overrule the Montana court’s ruling). But these cases demonstrate that whenever we make exceptions to the principles of free political speech and association that are enshrined in the First Amendment, proponents of speech restrictions will invariably try to expand those exceptions. That’s why IJ got involved in Bluman v. FEC and why we will continue to vigorously defend the Citizens United ruling going forward.
Over the weekend we blogged about Justice Ruth Bader Ginsburg’s statement regarding a stay issued by the U.S. Supreme Court in American Tradition Partnership, Inc. v. Bullock, the decision in which the Montana Supreme Court thumbed its nose at the ruling in Citizens United. Writing at the blog of the Center for Competitive Politics, friend of IJ Brad Smith has a great post taking down claims that Justice Ginsburg’s statement indicates that she is “ready to speak truth to power” when—as is widely expected—the Court takes the case. As Smith notes:
Justice Ginsburg is a member of the Supreme Court of the United States. She is power. Truth? What truth was there in her little Western Tradition Partnership concurrence? Didn’t she just offer an opinion, slandering both donors and candidates, without any facts at all?
Well said. The rest of Smith’s post is available here. And be sure to check out the rest of CCP’s blog, which provides consistently great coverage of campaign finance news from a pro-First Amendment perspective.
The U.S. Supreme Court has unanimously stayed the decision of the Montana Supreme Court in American Tradition Partnership, Inc. v. Bullock, in which the Montana court explicitly thumbed its nose at the U.S. Supreme Court and the Citizens United decision. The stay itself is not surprising—most assumed that the Court would stay the Montana court’s version of jury nullification and many expect the Supreme Court to summarily reverse the lower court.
What is surprising, however, is the separate statement of Justice Ginsburg, joined by Justice Breyer (notably, Justices Sotomayor and Kagan did not join the separate statement). Justice Ginsburg urges the Court to grant certiorari and reexamine the Court’s conclusion in Citizens United that independent expenditures do not cause corruption “in light of the huge sums currently deployed to buy candidates’ allegiances.”
What a cynical and insulting way to describe the activities of Americans, like IJ clients SpeechNow.org and David Keating, who use their resources to attempt to persuade their fellow citizens of the wisdom of their political view.
Interestingly, Justice Ginsburg cites no source for this remarkable accusation and it is not clear if she means that all expenditures are designed to “buy candidates’ allegiances” or just some. Regardless, if Justice Ginsburg believes that people spend money in elections “to buy candidates’ allegiances” and not to persuade others that their political view is correct, then her view that the government should be able to throw people in prison for producing a film or book about politics finally makes sense. Fortunately, other justices on the Court have, for now, more respect for American voters, candidates, and political activists that Justices Ginsburg and Breyer.
Perennial campaign-finance scold Fred Wertheimer from Democracy 21 has never seen a speech restriction he didn’t like. So it comes as no surprise that Wertheimer recently published an opinion piece on CNN.com declaring the Super PACs are, in his words, “a disaster for democracy” and an “unmitigated disaster.” Why? Well, because Super PACs let certain people speak more than Wertheimer likes. So his proposed answer is to resurrect the long-deadDISCLOSE Actfrom the grave in order to get those disfavored speakers to shut up.
In its most-recent incarnation, the DISCLOSE Act would force independent groups—whose speech does not raise any specter of corruption—to list their top five contributors in each advertisement. And it would require the head of those groups to appear on camera and say that their organization approved the message. If those provisions seem pointless because 1) Super PACs already disclose the identity of their contributors and 2) the group wouldn’t have put out the advertisement unless it agreed with its message, you’re right. The dirty secret of this DISCLOSE Act, like its predecessor, is that it’s not about information; it’s about chilling speech. As my colleague Paul Sherman previously noted, “For the reform lobby, the fact that some groups might stop speaking rather than comply with these new burdens is a feature, not a bug.”
The chance that this newest speech-squelching legislation will become law is between slim and none, and slim just left town. That’s a good thing; although Wertheimer complains that Super PACs let “a relatively few super-rich individuals and other wealthy interests to have greatly magnified and undue influence over the results of our elections,” that view betrays a fundamental misunderstanding of how elections actually work.
The speech police see voters as empty vessels that candidates and groups can hoodwink and manipulate. That condescending view of the American electorate, however, is just plain wrong. Instead, the whole purpose of political campaigns is persuasion. Candidates and groups can only present information and arguments to the public. It is ultimately the voter who weighs that information and decides whom to cast a ballot for. Super PACs help improve democracy by giving voters another source of information to consider.
It’s odd to say that people can be made better off by limiting the voices they can hear from and consider, but that’s the argument that Wertheimer and his ilk make. Fortunately for Americans, “[t]he First Amendment confirms the freedom to think for ourselves” and to hear from everyone, Super PACs included.