Congress Shall Make No Law...

    President Obama urged his supporters to sell the Affordable Care Act during this year’s Thanksgiving meal.   He received significant criticism from many for what was perceived to be an attempt to inject politics into a time for family and friends.  But even the architect of “Health Care for the Holidays” probably would have recoiled from a Thanksgiving Tweet from the Center for Responsive Politics’ site as having gone a step too far: 



    “Got a politically inclined relative at the Thanksgiving table? See which candidates they have supported:



    Putting aside the question of why someone thinks snooping into their relatives’ political activities at the dinner table is remotely good manners, this Tweet nicely summed up how hollow the “follow the money” rhetoric of the pro-regulation side of the disclosure debate is.  Here, (an organization whose logo is an unblinking eyeball, like some campaign finance reform edition of the Eye of Sauron) wanted people to “follow the money” not to uncover corruption or influence, but to get information on political giving and use it against family members.  While they speak of disclosure as a tool to battle the influence of large donors, pro-regulation organizations seem untroubled (and often encouraged) by the fact that forcing people to disclose even the most picayune political activity and posting that information on a publicly accessible database leaves practically all political donors open to retaliation and coercion by their neighbors, bosses, customers, shop stewards, and even their family.  Surely, having a relative blurt out one’s political giving at the Thanksgiving table probably would do little to encourage even modest giving in the future, which was perhaps the intended result.  In other words, any “transparency” that resulted from this Tweet almost certainly did not reduce corruption, but it probably helped to ruin at least a few Thanksgivings.   

    10:26 PM

    At the Institute for Justice, we want the message of liberty to reach the widest-possible audience. So when we were approached by a website that translates American legal writing into Slovenian and asked if they could reprint one of our Make No Law blog posts about media censorship, well, how could we refuse?


    For anyone who is interested, the translation is available here. And if any of our readers are Slovenian, let us know how jokes about Lake Wobegon play in Ljubljana.

    Writing for the Project on Government Oversight (POGO), Ben Freeman argues that my recent op-ed in The Wall Street Journal regarding Bluman v. FEC is “deceptively titled” and uses a “bait-and-switch tactic” to con people into believing the Congress shouldn’t have the power to ban political contributions and expenditures by noncitizens who lawfully reside in the United States.


    censoredMy op-ed was titled “Do Foreigners Deserve Free-Speech Rights?” As Freeman sees it, the real question is “Do American Citizens Deserve Sovereignty?” The Institute for Justice believes that the answer to both questions is “yes.” Where we disagree with Freeman is on whether acts of peaceful political expression and association by noncitizens are a threat to American sovereignty.


    The way we see it—and the way the U.S. Supreme Court saw it in Citizens United v. FEC—the First Amendment ensures a wide-open political marketplace where voters can listen to diverse points of view from diverse speakers. We believe this includes speakers who were not born in the United States but who live here now. In this system, sovereignty remains with American citizens because American citizens are the ones who get a vote.


    The real threat to American sovereignty is not that someone born outside the United States might present an argument that voters find compelling, but rather that government will use its coercive power to prevent voters from gathering information from certain distrusted sources before making their political choices. This is what the Supreme Court in Citizens United rightfully derided as censorship for the purpose of thought control.


    Freeman doesn’t engage at all with the Supreme Court’s ruling in Citizens United and, indeed, thinks this whole First Amendment argument is a bait and switch. To Freeman, this case has nothing to do with speech, and is instead just about preventing foreigners from using money to influence American politics:


    The simple fact is that the prohibition on foreign national contributions does not actually restrict speech at all. It in no way restricts non-U.S. citizens from engaging in issue advocacy or speaking out on public policies— it simply does not allow them to do so with money.


    With all due respect to Freeman, the Supreme Court has long rejected the view that the First Amendment protects only the uncompensated spoken word. For over 35 years, the Supreme Court has held that the First Amendment is implicated whenever individuals are prevented from pooling money to engage in political speech. And it could hardly be otherwise. Freeman’s approach would give the government virtually unlimited power to silence speech, because virtually every type of communication requires the use of resources amassed in the commercial marketplace.


    Freeman suggests that the First Amendment issue isn’t as cut-and-dry as all that by pointing to another line of cases:


    In prior cases, the Court found that foreign citizens may be barred from activities “intimately related to the process of democratic self-government,” and aren’t eligible to perform functions inherent to democratic government, like serving as jurors or police officers, because “the right to govern is reserved to citizens.”


    This was the argument made by the government in Bluman and accepted by the three-judge panel below. But the argument fails, most notably, because not a single one of those earlier cases involved a claim under the First Amendment. Instead, all of those cases involved equal-protection claims by noncitizens seeking to hold positions of actual government authority. But there is a world of difference between giving noncitizens control of the coercive power of government and permitting noncitizens to attempt to persuade others through political advocacy. The former may be a threat to sovereignty, but the latter surely isn’t.


    It is also irrelevant for First Amendment purposes that other countries—like Canada and Israel, the plaintiffs’ home countries—don’t permit noncitizens to make political contributions or expenditures. Canada and Israel don’t have constitutional protections for speech that are at all comparable to America’s First Amendment. For Americans, this is generally a point of pride. But as long as we’re looking at other western-style democracies, let’s also look at Australia, which has virtually no campaign finance laws and permits unlimited campaign contributions not just from non-permanent resident aliens, but from aliens, corporations, and even governments outside of Australia. We are aware of no evidence that Australia’s hands-off approach to campaign financing has done that country any harm. Indeed, according to Transparency International, Australia is perceived as substantially less corrupt than the United States.


    Freeman’s failure to provide any actual evidence to justify the ban on political contributions and expenditures by noncitizens is consistent with the approach taken by the three-judge panel and by other commentators who have supported the panel’s ruling. But it is not consistent with the First Amendment. The Supreme Court has repeatedly made clear that speculation and conjecture are not a sufficient basis to restrict speech. Government must justify such restrictions with actual evidence, not simply make ominous allusions to Nazi Germany or Mahmoud Ahmadinejad.


    Ultimately, though, even if every claim Freeman made in response to my op-ed were accurate, the Supreme Court should still take this case. As documented in the amicus brief in support of review by the Illinois Coalition for Immigrant and Refugee Rights, there are millions of non-permanent resident aliens who reside in the United States. Until now, no court has ever held that these lawful residents were entitled to anything less than the full protection of the First Amendment. If these people are to be stripped of their First Amendment right to engage in peaceful political advocacy because of vague and unsupported concerns about “sovereignty,” that decision should come only after serious consideration by the highest court in the land.


    The Supreme Court’s next opportunity to take up the case will occur on January 9.

    My colleague Paul Sherman has an op-ed in The Wall Street Journal today making the case for why the U.S. Supreme Court should take up Bluman v. FEC, a First Amendment challenge to a federal law that prohibits noncitizens, even those who lawfully live and work in the United States, from spending any money in candidate elections.  The law is so broad that it even prohibits printing up and distributing flyers advocating the election of a candidate.  Here’s an excerpt from the op-ed:


    As Justice Anthony Kennedy eloquently expressed it in his majority opinion in Citizens United: “When Government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves.”


    The Justices who signed on to Justice Kennedy’s opinion should apply that same reasoning to Bluman. Those who instead agree with retired Justice John Paul Stevens’ dissent—which decried the application of the First Amendment to entities that have “no consciences, no beliefs, no feelings, no thoughts, no desires”—should recognize that noncitizens living in this country do have those qualities and are entitled to the First Amendment’s protection.


    Over the past five years, the Supreme Court has been sharply divided on many campaign-finance questions. Whether Congress has the power to ban peaceful political speech by people who lawfully live and work in the United States should not be one of them.


    Wall Street Journal subscribers can read the whole thing here.


    For more information on Bluman v. FEC, read our earlier coverage here and here.

    Readers of Make No Law may recall that the Institute for Justice recently filed a brief in Bluman v. FEC, urging the U.S. Supreme Court to hear that case, a challenge to the federal prohibition on political spending by noncitizens. Now election-law scholar Rick Hasen has posted a commentary at The New Republic, provocatively titled “Will Foreigners Decide the 2012 Election? The Extreme Unintended Consequences of Citizens United.” In it, Hasen argues that the U.S. Supreme Court should reject this challenge or uphold the law. But Hasen’s argument is thin on both the facts and the law, and ultimately fails to make a compelling case for the Supreme Court to break new ground by holding, for the first time ever, that government may censor the speech of noncitizens lawfully residing within the United States.



    As a threshold matter, Hasen’s argument is notably silent on the actual facts of the case, probably because they aren’t nearly as salacious as his portrait of Mahmoud Ahmadinejad spending money in American elections. The plaintiffs are a Canadian lawyer and a Canadian-Israeli doctor, both of whom lawfully live and work in the United States. They want to make modest, limited contributions to political candidates and parties and to make modest expenditures on their own political speech (one actually wants to distribute fliers in Central Park urging the reelection of President Obama, which is currently illegal). Hasen makes no attempt to justify the law as it applies to these entirely harmless activities by people who live, work, and pay taxes in the United States.


    In addition to omitting any facts about the plaintiffs, Hasen’s argument also ignores the fact that foreigners routinely speak out in American politics, to no ill effect. Foreigners, and even foreign governments, are permitted to spend unlimited amounts lobbying Congress. Foreign publications like The Economist routinely endorse American presidential candidates, and the UK paper The Guardian actually urged British citizens to send money to groups whose political efforts would indirectly benefit Democratic presidential candidate John Kerry. Foreigners are also permitted to make unlimited donations of volunteer services, no matter how valuable, as when Elton John volunteered as a performer at an event that raised $2.5 million for then-Senator Hillary Clinton’s presidential campaign. Hasen makes no attempt to square his predictions of “distressing” consequences if foreigners living within the United States are allowed to make political contributions or expenditures with the fact that none of those consequences have followed from the significant amounts of foreign speech that are already permitted.


    Hasen’s silence on these points is not surprising, because there is not a single legal precedent—not one—that has ever held that foreigners lawfully living within the United States do not enjoy the full protection of the First Amendment. The only case Hasen cites to support his position is the Supreme Court’s ruling in Caperton v. A.T. Massey Coal Co., in which the Supreme Court, per Justice Kennedy, held that an elected judge was required to recuse himself from hearing a case in which one of the litigants had made large independent expenditures to support his election. That case had nothing to do with foreign speakers, but Hasen claims that it runs directly contrary to the teaching of Citizens United that government is prohibited from limiting independent political speech.


    The problem with Hasen’s legal argument is that Caperton did not involve any limitation on political speech. There was never any question as to whether government could limit independent spending in support of electing a judge; the only question was whether the judge could then hear a case involving that spender. Moreover, the claim that this narrow due-process decision has anything to do with elections outside the judicial context ignores the fact that judges and legislators play entirely different roles in our system of government. Judges are elected to serve as neutral magistrates, not as representatives of the people, and due process requires that they be impartial. Legislators, by contrast are expected to be partial. Simply put, there is no contradiction between the two decisions, which is hardly surprising as Justice Kennedy wrote both of them less than a year apart.


    Fundamentally, however, our disagreement with Hasen isn’t about the law. Indeed, the legal precedent is so overwhelmingly in favor of permitting the Bluman plaintiffs to speak that the Supreme Court would have to break entirely new ground to find cause to restrict them. At its core, our disagreement with Hasen is about competing visions of voters and government. Hasen is apparently deeply concerned that voters, if exposed to too much of the wrong type of political speech, will make foolish choices at the polls, and believes that government should be permitted to censor speech to prevent that. We believe that this risk was contemplated by the Framers of the First Amendment, who wisely recognized that no government could be trusted with the power to decide which speakers or what speech a voter could consider before casting his ballot.


    No matter what the Supreme Court decides in Bluman v. FEC, the answer to Prof. Hasen’s question—will foreigners decide the 2012 election?—is “no.” American voters will decide the 2012 election, just as they decide every election. The real question is: Will the federal government be permitted to continue prohibiting American voters from considering foreigners’ speech before casting their ballots?

    wisccheeseThings keep happening to the right to speak in Wisconsin.  It is hard for anyone to keep up with what you can, or cannot, say in the Cheesehead state.*


    First a quick recap.  As we have discussed several times before at (here, here, and here), last summer the Wisconsin Governmental Accountability Board issued an outlandish rule that, among other things, requires anyone who spends more than $25 on criticizing or praising a candidate within 60 days of an election to report that spending to the government.  So if you buy a $26 sweatshirt that says “I ♥ Mary Smith” and Mary Smith is running for office, and you don’t report that spending, you break the law.


    Earlier this month the Wisconsin Supreme Court agreed to hear a legal challenge to the new rule.  That challenge applies to the reporting requirement on criticism and praise of candidates, but also to other censorship provisions in the new rule, such as extending reporting requirements to money spent on emails.


    Faced with the Wisconsin Supremes agreeing to hear the case—and the likelihood they will strike the rule down—the Governmental Accountability Board has now amended the rule to no longer apply to mere criticism or praise of candidates.


    Of course, this obviously is an attempt to avoid the legal challenge.  It is not even a real change as it is a temporary “emergency rule” and the old provision could be reinstated when the challenge is over.


    More importantly, the change only happened because citizens fought back with the means to challenge the rule in court.  Without these challenges the Board would have marched forward with its attempt to criminalize all manner of citizen speech.


    This is important to remember when looking at campaign finance laws as a whole.  If people do not challenge how the government regulates speech the government inexorably will censor it.  There are thousands of campaign finance laws in every jurisdiction of the country, many of which are never challenged in court, and many of which nevertheless go on to intimidate citizens into silence.  Thus the more challenges people bring, and the more light they shine on the censors’ practices, the less likely we will end up with rules like the one in Wisconsin.


    *As a proud alumnus of the University of Wisconsin-Madison, I think I get to use this term.

    Recently reelected by an exceedingly narrow margin, Congressman Tim Bishop of New York’s First Congressional District, knows what is to blame for the electoral bullet he so narrowly dodged:  the First Amendment.  Writing in Newsday, Rep. Bishop calls for more campaign finance regulation because, after Citizens United, “any person or group can spend an unlimited amount of money to advocate for or against a candidate in federal elections.”  The dangers of people engaging in unlimited advocacy for or against a candidate in federal elections are practically self-evident:  some of that speech may be directed against politicians who do not think they deserve to be the target of “partisan attacks.”  People like Tim Bishop, for example.


    Rep. Bishop believes that unregulated political speech leads to “incivility and misinformation,” and that type of speech needs to stop.  In short, Rep. Bishop wants to control the amount of speech that occurs in campaigns because he is in power and people say bad things about him.  But that is the purpose of the First Amendment: to allow people to freely criticize people in government without government interference.


    For all his complaints about misinformation, Rep. Bishop’s piece is filled with errors and misstatements that he could have corrected by spending five minutes on the Internet (for instance, Citizens United did not overturn a century of legal precedent and individuals have had a recognized constitutional right to spend unlimited amounts in federal elections since 1976).  Indeed, it is disturbing that a U.S. congressman knows so little about the constitutional provision he wishes to eviscerate and the cases interpreting it.  Rep. Bishop does understand one thing very well, though:  campaign finance regulation insulates those in power from criticism and, as one of those in power, he thinks that that is a very good thing.

    Politico reports that the FEC has denied a request from a wireless industry lobbying group to allow people to make small donations to candidates and parties via text messaging. Apparently, the FEC thought that donations in this manner might allow contributors to exceed the $50 limit on anonymous contributions and would violate the rules that determine how quickly contributions must be forwarded to a campaign’s treasurer.


    tall-stack-of-papersOne can certainly criticize the FEC for its conservative, rule-based approach to an innovative way for people to support candidates and parties. (Indeed, as the Court stated in Citizens United, “The FEC’s ‘business is to censor.’”) But the fact is, all regulatory agencies behave this way. Their mandate, after all, is not to make it easy for people to engage in regulated behavior, but to make sure that people follow all their complex rules and regulations. If that means delaying or forgoing entirely the use of new technologies that facilitate political participation, well, tough.


    The FEC may, in its own sweet time, come around to recognizing the value of allowing people to contribute money to political campaigns using all sorts of new technologies. In the meantime, we might consider anew why we ever decided to empower a federal agency to make these decisions for us.




    Today's Daily Caller contains an interesting op-ed about food advertising.




    It turns out that would-be censors of all stripes share a common conviction: that the American public is stupid. And because they believe that Americans are inherently gullible, these know-it-alls feel it is their sacred calling to control what information is put out there so that people will make the "right" decisions.


    But freedom of speech is based on the idea that the people, not self-appointed experts, are perfectly able to govern their own lives. As Justice Anthony Kennedy so eloquently put it in Citizens United:


    When Government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves.

    My colleague Bill Maurer, the lead attorney in IJ’s challenge before the U.S. Supreme Court in Arizona Free Enterprise Club PAC  v. Bennett, was recently quoted in an editorial column in The Seattle Times discussing the case.  The column’s author argues that campaign finance systems like Arizona’s—that seek to limit political spending by creating disincentives to speak—are unconstitutional, and that as long as large donors are disclosed, candidates should be able to raise as much money as they want from whomever they want.  This kicked off a lively debate among readers, one of whom had the following criticism of disclosure-only systems:


    The problem with just letting anyone spend what they want as long as it is disclosed is that even if people know who is spending it, it still influences them. People still eat fast food even though they know it is bad for them, and we know advertising has a big effect on that.


    I_votedThis shabby, paternalistic view of voters rests at the heart of policies that restrict what people can raise or spend on political speech, but it is rare to see it expressed so forthrightly.  More often, proponents of campaign finance restrictions warn against big spenders “buying elections” by “drowning out” their competitors.  But however it’s expressed, the sentiment is the same:  Unless government controls the messages people hear, voters will elect the wrong people.  Of course, those who hold this view never think that they could be so easily fooled.  It’s only the other guys—who, coincidentally, hold different political beliefs—who are bamboozled by campaign ads.


    Thankfully the Framers of the First Amendment didn’t share this dim view of the voting public.  To the contrary, they recognized that nothing could be more destructive of liberty than to give our elected officials control over speech about elected officials.


    Image source: programwitch

    Our friends at the Center for Competitive Politics have just released a new report laying out a policy agenda that “outlines steps policymakers can take to increase incentives for citizen participation in politics, encourage electoral competition and simplify the maze of campaign finance regulations.”  While we disagree with some of their suggestions, and feel that others (like raising disclosure thresholds) don’t go far enough, the report is well worth reading.  In contrast with the tired rhetoric from groups urging ever-greater government control over political speech, CCP makes a number of common-sense suggestions that would promote free speech and political participation while making our nation’s campaign finance laws far more rational.

    Wendy Kaminer has a terrific takedown in the Atlantic of the latest silliness emanating from campaign finance “reformers”: a proposed constitutional amendment that would allow Congress to regulate corporate political speech.


    It’s hard to find a favorite passage from this article, because practically every sentence is a gem. But if I had to choose, I’d go with her dissection of the mantra that “money is not speech”:


    Put aside the fact that liberals never complain that money isn’t abortion rights when they lobby for medicaid funds or that money isn't the right to an attorney when they lobby for indigent defense funding. Instead, simply remember reformers’ claim that money isn't speech when they explain that restrictions on corporate expenditures are essential to democracy because monopolizing wealth enables corporations to monopolize speech. In other words, they implicitly argue, we need campaign finance restrictions because money is speech. But explicitly conceding that money is speech would require them to acknowledge an intent to limit First Amendment rights, to engage in arguments about the value of corporate political advocacy, and present compelling reasons for criminalizing it. That’s a debate advocates of reform want very much to avoid, which is why they also attack the notion of corporate personhood.  


    We’ve said it before; we’ll say it again: campaign finance reform is ultimately about censoring speech. Go read the whole article.

    This year’s Federalist Society National Lawyers Convention included a great panel on anonymity and political speech featuring friend-of-IJ Brad Smith.  The video, below, is well worth watching:


    The First Amendment means that government bureaucrats don’t get to play art critic. But in Arlington, Virginia, local zoning officials told Wag More Dogs that its mural depicting happy cartoon dogs, bones and paw prints was an illegal sign because it has “a relationship” with the business. Wag More Dogs has had to cover its cartoon dogs with an ugly tarp for the past three months so that it can stay open.




    But Wag More Dogs’ owner, Kim Houghton, isn’t just rolling over and playing dead. Yesterday, the Institute for Justice filed a lawsuit in federal court on behalf of Kim arguing that government officials can’t force entrepreneurs to choose between their right to speak and their right to earn an honest living.


    Coverage of the case launch can be seen here, here and here. For a short video that explains the case, see below.


    If you haven't seen my colleague Bill Maurer's recent article in the Weekly Standard about "Campaign Finance Myths," it's definitely worth a read—particularly if you want a quick primer on why everything "reformers" are saying about Citizens United is wrong.

    wisconsinLate yesterday the Wisconsin Supreme Court agreed to take a case involving new state campaign finance rules.  We’ve reported on the case before, see here and here, which involves regulations that, among other things, require anyone spending more than $25 on a communication that mentions a candidate to register with the government.


    This is great sign that the Wisconsin Supreme Court is taking seriously the threat that disclosure laws present to ordinary citizens.  The Institute for Justice filed an amicus brief in support of the court taking the case, arguing that Wisconsin’s new rules present a major threat to citizen speech.


    The case is set for oral argument on March 9, 2011.  We will continue following the case closely.

    All last month our friends at the Cato Institute held an on-line symposium on campaign finance reform and disclosure, entitled “Following the Money: The law and Ethics of Campaign Finance Disclosure.”  The contributors are UC Berkley Professor Bruce Cain, Electionlawblog’s Professor Rick Hasen, Cato’s own John Samples, and Common Cause’s Nikki Willoughby.  Check out the interesting debate.