Earlier I took issue with blog posts by Ezra Klein and political scientist Michael Miller claiming supposed benefits from so-called “Clean Elections” laws like Arizona’s, which will be considered by the U.S. Supreme Court on Monday. But perhaps a more nefarious tactic of defenders of such schemes is to deny that they have any effect on speech at all.
In a nutshell, Clean Elections’ defenders want us to believe that incentives don’t matter. Economists would certainly be surprised to learn that. And the testimony of candidates and independent groups in the case suggest otherwise, as do public funding backers themselves when they argue that “matching funds” are essential to encouraging candidates to sign up for taxpayer funding in the first place. The claim also defies common sense: If the government sends a buck to your opponent every time you spend a buck, this will probably have some effect on your spending and, therefore, speaking.
Yesterday, Ezra Klein linked to a graph that, he says, shows the importance of so-called campaign finance “reform,” and more specifically using taxpayer dollars to fund the campaigns of political candidates. This matters now because on Monday the U.S. Supreme Court will hear a challenge to one the most sweeping of such schemes, Arizona’s “Clean Elections” law. Interestingly, the graph and Klein’s post tell us much more about the impulse behind campaign finance “reform” than they do about the supposed benefits of such systems (or whether they are constitutional).
Yesterday, the Institute for Justice filed a reply brief in the U.S. Supreme Court in support of its challenge to Arizona’s Clean Elections Act. The Goldwater Institute, which is litigating a related challenge before the Court, filed its reply brief on Tuesday.
For those of you who don’t remember, Arizona’s system gives publicly financed candidates government money whenever traditional candidates or independent groups speak “too much.” Here’s a short video that explains how the Act works:
The reply briefs that the Institute for Justice and the Goldwater Institute filed demonstrate not only how this regime violates the First Amendment, but how it flouts a directly controlling U.S. Supreme Court case that was decided just three years ago.
The U.S. Supreme Court will hear oral argument in the case on March 28th. Come back to MakeNoLaw.org for more updates as the case progresses.
As we’vediscussedon MakeNoLaw.org before, in July 2010, the Wisconsin Government Accountability Board issued a rule that all communications made for a political purpose—including emails, Facebook posts, t-shirts and handmade signs—are subject to disclosure and reporting requirements if a speaker spends more than $25 producing them. Although the worst aspects of the rule have been temporarily suspended, it will fully take effect again by September 2011.
The rule does not just apply to traditional “express advocacy” asking people to vote for or against candidates. Sixty days before an election, the rule mandates reporting of money spent on any statement that “refers to the personal qualities” of a candidate or “supports or condemns” a candidate’s position on issues.
Thankfully, a number of groups and individuals have challenged the rule in the Wisconsin Supreme Court. This week, the Institute for Justice filed a brief in support of them, arguing that the new rule will have significant chilling effects on citizens’ ability to engage with their neighbors on important public issues. The brief is available here (pdf).
Given what’s been going on in Wisconsin lately, the brief is a very timely reminder of the importance free speech plays to all sides of political debate. For example, if the members of the Wisconsin Assembly and the Governor were up for reelection within the next 60 days, the protestors who have criticized their actions over the past few weeks would have violated the law and been subject to criminal penalties because they didn’t report every penny spent on their protests. If the First Amendment means anything, it protects the protestors, and everyone else, from such a ridiculous rule.
On March 2, the U.S. Supreme Court, in an 8-1 opinion written by Chief Justice John Roberts, handed down its ruling in Snyder v. Phelps, upholding the right of the WestboroBaptistChurch to stage vile protests of military funerals. The New York Times, in an editorial titled “Even Hurtful Speech,” praised the opinion for its “incisive language,” and its recognition that “even deeply flawed ideas must be defended because they are part of the public debate on which this country depends.” The Washington Post, in an editorial titled “The right to even ugly free speech,” shared this praise, noting, “The beauty of the First Amendment is often most vibrantly expressed under the ugliest of circumstances.”
While these papers pat themselves on the back for their fidelity to the First Amendment, let’s keep something in mind: These samepapers excoriated the Supreme Court when it held that Congress lacked the power to ban a political documentary produced with corporate money. What gives?
The answer is that the WestboroBaptistChurch’s speech, while vile, is also totally inconsequential. Nobody is going to be persuaded by their inarticulate grunts of rage. And it is relatively easy to tolerate speech that you do not believe will persuade anyone. What is considerably harder is to stand up for speech that is persuasive, speech that might actually cause people to adopt beliefs or enact policies that you disagree with.
So the New York Times and the Washington Post have it wrong. The beauty of the First Amendment is not that it leads us to tolerate the insignificant antics of the Fred Phelpses of the world. Rather, it is that the First Amendment permits us—and commits us—to resolve even our most consequential disagreements peacefully, with words, not force.
Ciara Torres-Spelliscy of the Brennan Center has an article in The Hill in which she invokes Ronald Regan’s famous dictum “trust but verify” in support of more disclosure laws for those who spend money on political ads. It may seem overwrought to compare spending on political speech with nuclear arms races, but I suppose a writer’s got to find their metaphors where they can.
More to the point, Ms. Torres-Spelliscy’s central claim—that “the voting public cannot tell who is paying for a growing percentage of political ads, leaving them in the dark about who is trying to sway their vote”—is just not true.
In fact, it’s exceedingly easy to figure out who is trying to sway your vote in each election. All you have to do is examine the issues and think a little. Businesses tend to oppose high taxes and regulation, especially those that impact their own industries. Labor unions support policies, like collective bargaining, for example, that benefit them. Ideological and policy groups take positions that are consistent with their world views.
If you aren’t sure how particular policies impact the various interest groups and industries out there, there are plenty of sources of that information available, from newspapers and magazines, to talk radio, to television news programs, to blogs and other websites, to your friends, neighbors, and colleagues. There is so much information out there about politics and policy these days that you really have to work hard to ignore it.
This is probably the reason that few people ever check state or federal campaign finance reports. Even the media don’t report that information very often, other than when it is particularly relevant—such as when disclosure itself is a hot topic. This would seem to indicate that there isn’t a huge demand for this information. That’s not surprising, as you can easily evaluate a message without knowing who the messenger is or who funds him.
But disclosure laws have always been more about attacking the messenger than evaluating the message. Criticizing the Chamber of Commerce for failing to disclose all of its funding sources or the tea parties because they’ve received funding from the Koch brothers is a lot easier than rebutting their arguments.
People are of course free to make ad hominem arguments if they want, but it’s not at all clear why the government should support their efforts with disclosure laws. Ms. Torres-Spelliscy claims that “we’re told to trust, but can’t verify,” but that’s wrong on both counts. The truth is, we are free to decide for ourselves what to trust and perfectly able to verify it. The First Amendment “confirms the freedom to think for ourselves,” as the Supreme Court put it in Citizens United, but it doesn’t appoint the government to do our thinking for us.
“Trust but verify” is a clever slogan, but the better approach is to verify or don’t trust and to take the responsibility to do both of those things yourself.
In a recent Huffington Post piece, Carl Pope from the Sierra Club calls out the American Petroleum Institute for forming a political committee that will contribute to congressional candidates. What does Pope find so damning? According to API’s executive vice president for government affairs:
"At the end of the day, our mission is trying to influence the policy debate."
This, to Pope, is completely unacceptable. He states that “[i]f API is making its campaign contributions to influence the policy debate, then it is engaging in bribery.”
Bribery? That’s a strong word. If Pope is right, then all sorts of things that people legitimately do to influence public policy should be considered bribery as well. Every election season, millions of people make campaign contributions. They do it so that candidates they agree with get elected and pass laws and policies they favor. Are all of these people guilty of a federal crime?
Or what about the actions of legislators themselves? On the floor of the House and Senate every day, Congressmen “horse trade” by agreeing to vote for one another’s preferred legislation. In the recent health-care debate, congressional leaders scrounged for “yes” votes by making the “Cornhusker Kickback” and the “Louisiana Purchase.” Odious? Maybe. Illegal? No.
There is no way that anyone can take API’s relatively innocuous statement and, with a straight face, argue that it amounts to bribery. The federal bribery statute says that “[w]hoever directly or indirectly, corruptly gives . . . anything of value to any public official with intent to influence any official act shall be fined under this title . . . or imprisoned for not more than fifteen years.”
So, for there to be bribery, there must be something “corruptly” given. Without any evidence of an actual quid pro quo, a legal campaign contribution is just that: legal. It’s certainly not corrupt. All API has said is that it wants to influence the policy debate, which is true of everyone who makes contributions or speaks out during elections. The Sierra Club is a good example.
If speaking out and seeking redress from the government is bribery, then the entire American system of representative democracy is corrupt to its core. There are certainly many things the government does that it should not, and it is not surprise that a lot of Americans line up and ask the government for various goodies. To end this groveling, we must reduce the government’s power to hand out goodies in the first place. It is emphatically not to say that certain disfavored speakers should be silenced. A government of unlimited power that listens only to certain select groups is a recipe for disaster.