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 Westboro Baptist Church 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 same papers 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 Westboro Baptist Church’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.
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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.
An update to yesterday’s post concerning Public Campaign Action Fund’s manufactured scandal in Wisconsin. The Washington Post has a copy of PCAF’s letter demanding an investigation of Gov. Scott Walker. In addition to the charge of attempted coordination (which we debunked yesterday), the letter also charges Gov. Walker with illegally soliciting political contributions using state facilities.
Just like PCAF’s coordination charge, this charge is also fatally flawed. First, it is extremely doubtful that Gov. Walker’s request for messages “[r]einforcing why [proposed legislation concerning unions] was a good thing to do for the economy, a good thing to do for the state,” could be considered a solicitation for “political purposes” under Wisconsin Law, because the requested messages do not pertain to an election or a candidate. If PCAF were correct, it would mean that it is illegal for legislators to use their office resources to promote legislation, merely because doing to might produce electoral benefits for the legislator or his colleagues. That reading of the law cannot be right because it would essentially outlaw politics
But even if we accepted this absurd interpretation of the law, PCAF’s claim would still fail because, again, Gov. Walker was talking with a prank caller, not David Koch. This means that, at most, his statements would be an attempt to solicit candidate support using public resources. But this is not illegal under Wisconsin law. Actually soliciting candidate support using public resources is a misdemeanor and, like almost all misdemeanors, is exempt from Wisconsin’s criminal-attempt law. Wis. Stat. § 939.32. In other words, in Wisconsin there is no such crime as attempting to solicit candidate support using public resources.
Once again, this is something that PCAF could easily have discovered if they had bothered to read Wisconsin’s laws before leveling their frivolous allegations. But when your main interest is using campaign finance laws for partisan advantage, why bother with details.
Update: Click here to read about Public Campaign Action Fund's latest frivolous charges against Wisconsin Gov. Scott Walker.
As if one needed further evidence that the primary beneficiaries of campaign finance laws are the political operatives who try to use them for partisan advantage, Public Campaign Action Fund has accused Wisconsin Gov. Scott Walker of illegal campaign “coordination” based on statements he made during a prank call by a blogger posing as libertarian political activist David Koch.
This claim is nonsense on every possible level. First, Governor Walker wasn’t actually talking to David Koch. Even if he had been, his statements did not meet the legal definition of coordination. And, most importantly, coordination is not illegal.
Before going into detail on these points, first we need to explain what this charge actually means.
“Coordination” is campaign-finance jargon for expenditures that are prearranged between a candidate and another person who wants to help that candidate’s election campaign. So, for example, if Candidate A asks Group B to run television advertisements supporting his campaign, and Group B does so, that would be considered a coordinated expenditure. Coordinated expenditures are not illegal, but they are usually subject to the same limits as direct contributions to the candidate, under the theory that there is no practical difference between giving a candidate the money to run advertisements himself or directly paying for those advertisements at the candidate’s request.
Public Campaign Action Fund claims that the following exchange from the prank call may have constituted illegal coordination:
Gov. Walker: “After this in some of the coming days and weeks ahead, particularly in some of these more swing areas, a lot of these guys are going to need . . . they don’t need initially ads for them, but they’re going to need a message out. Reinforcing why this was a good thing to do for the economy, a good thing to do for the state. So to the extent that message is out over and over again is certainly a good thing.”
Ian Murphy (posing as David Koch): “Right, right. We’ll back you any way we can.”
So is this illegal? No, as Public Campaign Action Fund could easily have discovered if they had taken a few moments to read the relevant Wisconsin regulations (.pdf) instead of dashing off press releases while, by their own admission, still “in discussions with election experts on whether Gov. Walker may have broken state election law and whether a complaint should be filed.”
Washington state has a budget deficit of more than half-a-billion dollars and significant structural problems that will likely leave it lurching from fiscal crisis to fiscal crisis in the coming years. In the midst of these problems, legislators in Olympia are making the tough decisions. Besides designating a state rock (Tenino quarry sandstone—obviously the work of big-money Tenino quarry sandstone interests), certain legislators also want to pressure Congress to repeal the First Amendment.
Senate Joint Memorial 8007 requests Congress to pass an amendment declaring that corporations are not persons so that their speech can be restricted.The reason, according to the Memorialists, is that corporations cannot vote and therefore should not be protected by the First Amendment. But disenfranchised convicts, resident aliens, and minors cannot vote either. Do the Memorialists believe that, under a correct interpretation of the First Amendment, the government can pass laws making it a crime for an ex-convict to give a speech or write a book? Sorry, Malcolm X, Angela Davis, and William S. Burroughs, you’re all under arrest—again.
Of course, the goal here is to overturn the U.S. Supreme Court’s decision in Citizens United v. FEC, but under a plain meaning of such an amendment, Congress and state and local governments could also deprive organizations like the Sierra Club and the American Civil Liberties Union from the protections of the Third, Fourth, and Fifth Amendments, as well as the First Amendment. Thus, if passed, the government could quarter soldiers in the headquarters of Common Cause and search the offices of MoveOn.org without a warrant.
The details of the proposed amendment are ultimately irrelevant, as repealing the First Amendment is unlikely in the near future and this is little more than a time-consuming bit of political theater paid for by Washington taxpayers. Nonetheless, the taxpayers should welcome it—it keeps the proponents of this law from causing mischief with other legislation.
On his website, Senator Adam Kline, the chief sponsor of the Memorial, closes his biography by saying, “Political action is good for you.” He forgets to add, “unless you incorporate.” Then Senator Kline thinks political action ought to land you in prison.
There’s a piece at Campus Progress, an effort of the Center for American Progress, praising the efforts of young 20-something progressives who run for office, and profiling a few candidates who have run races against established politicians. The funny thing to me about the article is that it fails to discuss these young people filling-out campaign finance paperwork while running for office. The only reference it makes to campaign finance laws at all is in praising Connecticut’s public financing system (which, as readers of this blog may know, the Second Circuit found largely unconstitutional last year). The article acknowledges there are many burdens in campaigning, but implies that when it comes to campaign finance this only falls on the fundraising side: “While their youth provides them with flexibility and a fresh viewpoint, college students still face significant barriers when it comes to asking for votes and, sometimes more important, asking for financial contributions.”
I can attest from personal experience that when you run for office, particularly when you only have a handful of inexperienced people helping you, complying with campaign finance paperwork is a confusing hassle, and often a nightmare. While a college senior in 1997, I ran for St. Paul City Council as basically a paper candidate (I barely campaigned and spent very little money; perhaps just over $100). Even then there were multiple forms I had to fill out, sign, and file. To this day I have no idea if I completely them correctly, although as IJ has demonstrated there’s a good chance that despite my efforts I broke the law in some way.
Perhaps the candidates Campus Progress profiles did not have these troubles because they were helped by friendly organizations with time and resources to help them get their paperwork in order. But that’s the whole point. For citizens running for office that don’t have that kind of assistance—whether they’re young or old—campaign finance laws take away from the time they could be campaigning and may discourage them from running at all.
More than a year after the U.S. Supreme Court’s ruling in Citizens United, attacks on that historic ruling just keep coming. The latest comes from a group called ProtectOurElections.org, which has submitted a complaint (.pdf) to the D.C. Bar arguing that Justice Clarence Thomas should have recused himself from the case.
ProtectOurElections.org claims that Justice Thomas’ recusal was required under the Supreme Court’s recent ruling in Caperton v. A.T. Massey Coal Co., 129 S. Ct. 2252 (2009), because, in 1991, Citizens United spent $100,000 on ads independently urging the Senate to confirm Justice Thomas to the bench.
Put bluntly, this is crazy.
Caperton dealt with an elected justice of the West Virginia Supreme Court, whose campaign had benefited from millions of dollars in independent expenditures by a litigant who had a multi-million-dollar case on its way to the state supreme court within a matter of months. The U.S. Supreme Court held that the elected judge should have recused himself, because the extraordinary events of that case created the “probability of actual bias.”
Even assuming that the reasoning of Caperton could apply to federal judges—who have life tenure and no incentive to repay favors—there is absolutely no way that Caperton would have required Justice Thomas to recuse in Citizens United. The situation in Caperton was, in the Court’s words, “extreme by any measure,” and the ruling was “thus . . . confined to rare instances” that created the “probability of actual bias.”
Only someone with an ideological axe to grind could make the groundless accusation that Justice Thomas should have recused himself in Citizens United. No intellectually honest person could believe that Thomas voted the way he did in Citizens United because, 20 years ago, Citizens United said nice things about him in a television ad. And no intellectually honest person could believe that Thomas would have voted differently if the petitioner had been some other nonprofit, and not Citizens United. Those who make claims to the contrary never really hope to win; their only goal is character assassination. They and their empty efforts should be called out.
During Justice Thomas’ service on the Supreme Court, there have been 10 major campaign finance cases. In every one of those cases, Justice Thomas has voted against regulation and in favor of free speech, often writing separately to explain why, in his opinion, the entire enterprise of campaign finance regulation is unconstitutional.
Justice Thomas’ unbroken voting record over 20 years shows only one bias, and that is in favor of free speech and the First Amendment. We should applaud this bias in Justice Thomas and hope for as much in all our judges.