Congress Shall Make No Law...

    With Election Day mere hours away, the Campaign Legal Center is taking a final swipe at the amount of money Americans are spending communicating with voters.  Aghast that total election spending may pass $6 billion, the Center crunches the numbers on what that money could buy if it weren’t spent on political speech:

     

    With $6 billion we could create 103,500 jobs in the United States.

     

    With $6 billion you could buy 171,428,571,429 gallons of gas for your car - that's enough gas for 155,844,156 American households.

     

    With $6 billion you could buy 1,734,104,046 gallons of milk - enough for 8,627,383 people for an entire year.

     

    With $6 billion NASA could build 2 new Mars Rovers.

     

    With $6 billion, 1.5 million students could receive Pell Grants to make college more affordable.

     

    We won’t quibble with CLC’s numbers (except to note that milk is not 100 times more expensive than gasoline). But we will note that CLC’s list omits something else that could be done with $6 billion.

     

    With $6 billion, we could fund the entire federal government . . . for 14 hours.

     

    In the coming year, the federal government will spend $3.8 trillion.  That’s really big money.  And as long as the federal government controls that kind of money, there will be no shortage of individuals and groups willing to spend money to express their opinion on who should be holding the purse strings.  Indeed, that’s why much of the growth in political spending has been driven by the growth of the federal budget.

     

    At IJ, we don’t think $6 billion dollars is too much money for Americans to spend on political speech.  In fact, we don’t think the amount of money Americans choose to devote to political advocacy is any of our business.  In a free country, speakers can decide for themselves how much of their money and time they wish to spend making their views heard.  But for those who do think that $6 billion could be put to better use, the solution is clear:  Unless you reduce the amount of politics in money, you’ll never reduce the amount of money in politics.

    On her blog, University of Wisconsin Law School professor Ann Althouse (in whose class I happily sat as a law student), pens a sharp critique of Justice John Paul Stevens and his dissent (and subsequent celebration of that dissent in his new book, Five Chiefs) in the Citizens United case. From critiquing Stevens on his focus on the identity of the speaker in First Amendment cases to dismantling his belief that the government may constitutionally limit speech in order to ensure that people don’t get the wrong ideas about things, Professor Althouse succinctly and powerfully refutes Stevens’ dissent and the position of many who think Citizens United was wrongly decided. It’s an important analysis that deserves the widest possible dissemination. Check it out.

    Professor Brad Smith, chairman of the Center for Competitive Politics, has an excellent, short op-ed in USA Today discussing calls for stricter lobbying regulations.  As Smith notes, lobbyists like Jack Abramoff are only a symptom of a more fundamental problem, one that can’t be addressed through laws that burden the First Amendment right to lobby the government:

     

    The problem is power, and the government has too much of it. When the government spends $3.6 trillion dollars annually, including substantial amounts trying to pick "winners" in green industries or bailing out companies and even whole industries; when it operates a tax code designed to "nudge" people to preferred activities and purchases; when it claims the right to regulate every aspect of your life—then you are going to have lobbyists seeking to influence what that government does. Until the power is gone, the lobbyists, and the favoritism that creates them, will remain.

     

    Read the whole thing.

    arizonaIn an emergency ruling issued yesterday, U.S. District Court Judge James A. Teilborg granted a motion by the Institute for Justice to stop the Town of Fountain Hills, Ariz., from enforcing burdensome campaign finance laws against a woman who just wanted to hold grassroots protests about her town’s issuing new bonds.

     

    In early October, political activist and Fountain Hills resident Dina Galassini emailed friends urging them to join her in two grassroots protests opposing her town’s issuance of nearly $30 million in new bonds, and encouraging them to bring homemade signs with messages like “Keep Property Taxes Low” and “Vote NO on the Bond.” Almost immediately she received a letter from the town clerk telling her to stop speaking until she had registered with the town as a “political committee” under Arizona’s campaign finance laws.

     

    “I felt strongly from the beginning that the position Fountain Hills had put me in was wrong,” Dina said.  “I am overjoyed the Court has protected my right to gather together with my friends and neighbors to speak our minds without having to register with the government.”

     

    With the help of the Institute for Justice (IJ), Dina filed a lawsuit in U.S. District Court for the District of Arizona, asking for an emergency order that would prevent the town from punishing Dina under the campaign finance laws if she goes forward with her protests.  Judge Teilborg entered that order, finding that there were “serious questions as to the constitutionality of the statutes at issue” and that those statues threatened Dina’s First Amendment rights.

     

    “Yesterday’s decision was very important because it protects Dina’s right to speak and to associate with others at the time it matters most:  during the heat of an election,” said IJ-Arizona Staff Attorney Paul Avelar.  “Campaign finance laws are difficult to understand and create traps for the unwary.  The judge understood that and enjoined the law.”

     

    The emergency order extended yesterday is just the first step in this case.  IJ will now move on to litigating the full merits and demonstrate again how these laws inhibit the ability of ordinary Americans to speak and participate in the political process.  The goal of the case is to free all Arizonans to speak about politics without the threat of prosecution.

     

    “In America, the only thing you should need to speak is an opinion.  Unfortunately, under campaign finance laws, you also need an attorney,” said IJ Senior Attorney and lead counsel in the case Steve Simpson.   “The Supreme Court recognized in Citizens United that complicated laws can suppress speech even by well-funded groups.  We are gratified that the judge in this case recognized the same thing is true for grassroots speech by ordinary Americans.”

     

    The case, Galassini v. Town of Fountain Hills, is the latest in IJ’s Citizen Speech Campaign, a national effort to restore full protection to political speech. 

     

    The full text of the ruling is available below the fold.

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    Professor Rick Hasen has started an interesting debate on this subject with a recent blog post on Summary Judgments, the Los Angeles Faculty Blog of the Loyola Law School. He believes that the U.S. Supreme Court’s decision to hear IJ’s and the Goldwater Institute’s challenges to the matching funds provisions of Arizona’s “Clean Elections” law will result in, as the title of his post says, “An Effective End to Public Financing.” Professor Hasen graciously linked to IJ’s response to his post over at Election Law Blog. Check it out.

    This morning, the U.S. Supreme Court granted cert in IJ's challenge to Arizona's "Clean Elections" system, which attempts to suppress the speech of privately financed candidates and independent groups through the use of "matching funds." A copy of IJ's press release is here, and an early news story on the cert grant is here. We'll have more on this case, as well as the general topic of government-funded elections, as it progresses.

     

    Over at Cato@Liberty, Roger Pilon’s takedown of the NYT editorial board’s latest broadside against Citizens United is definitely worth a read.

    As my colleague Paul Sherman notes, we won an important victory for free speech last week when the Tenth U.S. Circuit Court of Appeals ruled in Sampson v. Buescher that Colorado’s disclosure laws for grassroots groups that speak out about ballot issues violated the First Amendment.

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    The case started when our clients, six neighbors who opposed the annexation of their neighborhood into the nearby town of Parker, Colo., were sued by the chief proponent of annexation for failing to register as an issue committee and disclose all of their activities to the state. Colorado allows not only the Secretary of State but also private citizens to enforce the campaign finance laws, so anyone can file an action against someone they claim has violated the laws and drag them into court. The rationale is that the Secretary of State might not enforce the laws against political allies, so the drafters of the law thought the solution was to give enforcement authority directly to “the people.”

     

    Unfortunately, “the people” can be just as mendacious as anyone else. Consider the reaction to the Tenth Circuit’s decision of one of the people who sued our clients under the campaign finance laws:

     

    “We did that action because those (annexation opponents) refused to debate us,” said David Hopkins, an annexation proponent who filed the original election complaint in 2006. “The purpose of the law is to get the debate on what the issues are and not just have a group putting out propaganda without accountability.”

     

    The campaign finance laws are said to serve a number of purposes: They prevent “corruption”; they elevate the debate by requiring speakers to stand by their messages; they prevent the “distorting effects” of large expenditures of money; they equalize voices; they promote democracy.

     

    But when you strip away all the good government platitudes, the motivation behind campaign finance laws often amounts to little more than the anger and frustration expressed in a comment such as Mr. Hopkins’s: They refused to debate us, so we sued them.

     

    Consider the congressional debates over McCain-Feingold. Despite all the anti-corruption rhetoric that led to its passage, the members who supported it were far more concerned about the alleged evils of last-minute attack ads. Here’s a representative quote from Senator McCain himself:

     

    If you cut off the soft money, you’re going to see a lot less [attack advertising]. Prohibit unions and corporations [from spending money on independent ads] and you will see a lot less of that. If you demand full disclosure for those that pay for those ads, you’re going to see a lot less of that . . . .

     

    And all we heard during the run-up to the recent election was that groups were spending “obscene” amounts of money and “buying elections” with all of their advertising, as though voters are too stupid to make up their own minds.

     

    If the SpeechNow.org case had not made clear that groups are entitled not only to spend unlimited funds for independent advocacy but to raise unlimited funds for that purpose as well, is there any question that so-called reform groups would have filed a slew of FEC complaints against anyone who dared to make independent expenditures without becoming a PAC or complying with contribution limits? Indeed, that happened after the 2004 elections, when independent groups like the Swift Boat Vets and Moveon.org spent huge sums on electoral advocacy.

     

    The fundamental purpose of campaign finance laws has been nowhere better expressed than by Yale law professor Owen Fiss in his book The Irony of Free Speech. As Fiss put it, the government may “have to silence the voices of some in order to hear the voices of . . . others. Sometimes there is simply no other way.”

     

    It shouldn’t surprise anyone that when we open up free speech to regulation, those who enforce the laws will impose their own ideas of what is “fair” on the process. Indeed, if “fairness” is the purpose, why isn’t suing someone because they won’t debate you entirely appropriate?

     

    There are many, many things wrong with campaign finance laws. We can now add to the list that they turn campaigns into a sort of Hobbesian war of all against all, as political opponents decide to play out their campaigns in courts of law, rather than in the court of public opinion.

     

    The Framers gave us the First Amendment in part to prevent all this. Perhaps it’s time to take it seriously.

     

     

    In an editorial about a recent Supreme Court argument, the New York Times argues:

     

    If the Supreme Court renders justice in a case it heard this month, Schwarzenegger v. Entertainment Merchants Association, it will strike down a California law barring the sale or rental of violent video games to anyone under 18. That would end a violation of free expression—but not prevent the states from finding other ways to support parents who do not want their children to play violent games.

     

    In other words, the corporations that produce and sell these games have a First Amendment right to do so.  If the state is concerned about the effect this speech has on the community, it must find a way to address those concerns that does not interfere with these rights.

     

    Now let’s rewind to January 21, 2010, when the Times’ editorial page blasted the Supreme Court’s landmark ruling in Citizens United v. FEC.  As the Times described Justice Kennedy’s opinion:

     

    The majority is deeply wrong on the law. Most wrongheaded of all is its insistence that corporations are just like people and entitled to the same First Amendment rights. It is an odd claim since companies are creations of the state that exist to make money. They are given special privileges, including different tax rates, to do just that.

     

    For those of us who believe that the First Amendment was designed to protect all speech—and to protect important, influential speech most especially—this contradiction is baffling.  Whatever one’s view on the Schwarzenegger case, it is laughable to suggest that selling video games to children that “graphically depict mutilation, torture, rape and murder” is an act entitled to greater First Amendment protection than distributing political documentaries like the one at issue in Citizens United.  This contradiction is, nonetheless, totally of a piece with the Times’ general view of the First Amendment, which allows political documentaries to be banned while affording the greatest protection to the least meaningful, most inarticulate speech.

    Now that most of the dust has settled (although in some places it is still plenty dusty), we can assess how well the First Amendment fared in this last election.

     

    castingballotProbably the biggest news was that Russ Feingold, one of the authors of the largest legislative assaults on the First Amendment since the Alien and Sedition Acts, lost his re-election bid. (His partner in the eponymous McCain-Feingold bill, John McCain, on the other hand, easily won re-election.) Feingold was recently arguing for further restrictions on the First Amendment, urging his colleagues—in a stunning display of disregard for the Constitution and separation of powers—to further restrict free speech regardless of any “fear of the [Supreme] Court” and whether it might strike down their work as unconstitutional. This single-mindedness persisted despite the fact that McCain-Feingold was such a colossal failure in even what it was intended to do. For those that believe that the First Amendment actually means what it says, it was good news indeed that a leading voice of the “more-always-needs-to-be-done” school of campaign finance “reform” will no longer be leading further attacks on our fundamental constitutional rights (at least for the moment).

     

    Free speech advocates could also rejoice that Rep. Alan Grayson, the Florida Congressman who called Citizens United “the worst Supreme Court decision since the Dred Scott case,” was involuntarily retired. Perhaps Floridians were tired of being represented by a politician who was so intemperate, insensitive, and ideologically blinkered that he could not tell the difference between a decision upholding the plain language of the First Amendment and a decision returning a human being to brutal subjugation and condemning countless African Americans to the horrors of slavery.

     

    Turning to taxpayer-financed elections, majorities voted against ballot measures to preserve two “clean elections” systems. In Portland, the Rose City’s scandal-rocked system of taxpayer-financing for politicians was narrowly rejected by the voters. Portland is one of the most progressive cities in America and its voters like to say “yes” to government spending. When you add California voters’ refusal to pass two public financing initiatives in recent years, one of which was overwhelmingly rejected by a 3-to-1 margin, these results demonstrate that even in very left-leaning jurisdictions, taxpayer-financed elections are simply not that popular.

     

    In Florida, while a solid majority voted to scrap Florida’s system of public financing for certain state races, it was not enough to meet the 60 percent requirement needed to amend the state constitution. Regardless, the “matching” or “rescue” funds provision of the system had already been enjoined by the Eleventh Circuit.  

     

    Finally, no discussion of the intersection of free speech and electoral politics would be complete without mentioning Congressman Peter DeFazio (D-Ore). Angered that people were spending money to defeat him, he became nationally known for yelling through a mail slot at people who had the gall to exercise their First Amendment rights. DeFazio had also recently begun talking about how it might be a good idea for Congress to impeach Chief Justice Roberts for upholding First Amendment rights. DeFazio won re-election again. However, perhaps this is not a bad result for the First Amendment. DeFazio’s efforts and his reaction to being criticized demonstrates that, while much of the rhetoric from pro-regulation politicians focuses on battling corruption and cleaning up the system, the restrictions they seek are often just a means for them to silence those who oppose them—an important lesson only someone like DeFazio can really teach.

    Great detailed piece on Citizens United and the movement to legalize political speech by Jacob Sullum over at Reason.  Check it out.

    supremecourtAs Make No Law blog readers know, the Institute for Justice is engaged in a nationwide Citizen Speech Campaign to free grassroots political activists from government-mandated burdens on free speech in the form of campaign finance laws.  Yesterday, that campaign scored a major victory.

     

    The Tenth U.S. Circuit Court of Appeals unanimous ruled (.pdf) in favor of IJ’s clients in Sampson v. Buescher.  The case involved Colorado resident Karen Sampson and five of her neighbors, who were sued for opposing the annexation of their neighborhood without first registering with the government and complying with burdensome disclosure laws.

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    MoneyThe Washington Post reported yesterday that the world was not flat. Actually, the Post reported something just as obvious: Money doesn’t buy elections.

     

    The Post, using information from the Center for Responsive Politics, reports that “out of 58 candidates who used $500,000 or more of their money on federal races in 2010, fewer than one in five won. Eight of the top 10 self-funders this cycle lost . . . .”

     

    In a follow-up piece, the Post admitted that this is no surprise: “The lesson learned Tuesday is one we seem to relearn every election cycle. Money only buys candidates the ability to get their message out. If that message neither resonates with nor is to the liking of voters, they will not vote for you.” Of course, none of this is news to Make No Law readers. Robert Frommer and Steve Simpson have already covered this ground.

     

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    Say this much for Professor Randy Salzman’s call for a ban on 30 and 60-second political ads in the Christian Science Monitor: at least he’s honest.

     

    censoredWe’ve made the point many times before that campaign finance laws will inevitably lead to censorship. If people cannot support their favored candidates in one way, they will find others. Ban large direct contributions to candidates, and supporters will run radio and TV ads. Ban those, and they will switch to newspaper ads or to the Internet. Ban those and they will use billboards and yard signs. The only way to control money in campaigns is to ban or regulate every form of mass communication available.

     

    And, in fact, this is precisely what happened under campaign finance laws until the regulations reached films and the government suggested that books were next on the chopping block. The Supreme Court blinked, and Citizens United was the result.

     

    Salzman recognizes that people will inevitably find ways around campaign finance laws, but instead of rejecting the laws, he wants us to reject free speech. According to Salzman, the only way to realize the true purpose of the First Amendment is to ban the “scalding, manipulative speech of emotional political ads.” Salzman proposes a law imposing a minimum time requirement of at least 30 minutes for all broadcast and cable political ads.

     

    But why would that solve anything? Placing a minimum time limit on ads would simply price some candidates out of the advertising market altogether, which would inevitably lead to calls for limits on what the networks could charge for airtime or restrictions on the amount of ads well-funded candidates could run. And the increased cost of advertising would put a high premium on candidates appearing on news broadcasts and talk shows, which would likely necessitate some sort of fairness doctrine, lest some candidates get more airtime than others. And what happens when candidates start spending more on print and Internet advertising? Are the professor Salzmans of the world going to be satisfied with a ban on only short radio and tv ads?

     

    Ultimately, the problem with campaign finance laws is not that they don’t ban enough speech, but that they regulate speech at all. Once you start down the road to censorship, there’s no logical stopping point.

     

    That’s why we have a First Amendment—to stop regulation of speech before it starts. Contrary to Professor Salzman, the premise underlying the First Amendment is not that speech will lead to any particular result—whether we conceive that as perfect competition in the marketplace of ideas, enlightened democracy or more civil political campaigns. The premise of the First Amendment is that freedom of speech is a right and that individuals get to choose for themselves what to say, hear and think. Or, as the Court put it in Citizens United: “The First Amendment confirms the freedom to think for ourselves.”

     

    You know there is something too complex about campaign finance regulations when someone as smart as political entrepreneur Diana Hsieh runs into trouble in her dealings with the law.

     

    nospeech_fullsizeHsieh details some of the difficulties of complying with Colorado’s campaign finance laws for ballot issue committees on her blog. Hsieh, who is featured in our most recent study of campaign finance laws, is a Colorado activist and blogger who got wrapped up in campaign finance red tape when she decided to speak out against Colorado’s Amendment 62. Hsieh co-wrote a policy paper arguing against passage of the Amendment, which she and her co-author Ari Armstrong funded with a pledge drive on Hsieh’s blog. But because they intended to raise over $200 to fund their effort, they were defined as an “issue committee” under Colorado’s campaign finance laws and had to register with the state and comply with complex and onerous administrative and reporting regulations. As Diana points out on her blog, while the regulations can often look straightforward, the devil is often in the details: “[T]he laws are just not clear. As a result, I’ve tried to do whatever seemed like the safest option open to me. I don’t have an army of lawyers to guide me... and even if I did, that might not be enough! With every wrong move, I risk $50 per day in fines.”

     

    Diana Hsieh is not the only one who’s had problems with the laws. In 2006, a group of neighbors outside of Denver spoke out against the annexation of their neighborhood into a nearby town. They put up No Annexation lawn signs, sent around post cards, and spoke to neighbors and were promptly sued by the proponents of annexation for failing to register and comply with the issue committee regulations. IJ now represents them in a First Amendment challenge to the laws. The case is currently before the U.S. Court of Appeals for the Tenth Circuit.

     

    IJ commissioned an economist from the University of Missouri to study the burden of these regulations on free speech a few years ago. He created an experiment in which groups of people were given a simple fact pattern and asked to fill out the forms for issue committees. Out of 255 participants, not a single participant filled out the forms correctly and the average score was about 40 percent correct. In the real world, each of these individuals would have faced fines and harassment from their political opponents.  The study is available here.

     

    But, as Diana points out, even if the regulations were not burdensome they would still “be a blatant violation of every person’s free speech rights. People should not have to register with the government to speak their minds. They should not have to register with the government to donate money so that others can speak for them.”

    With all of the complaining about “undisclosed” money being spent on campaign ads, it’s worth remembering that freedom of speech is a right, not a privilege that must be justified to everyone who does not like what we say.