Congress Shall Make No Law...

    Over Christmas break, the New York Post published my op-ed on the Moreland Act Commission and what more we can expect from them in the coming year.  Also check out the op-ed in the Albany Times-Union from Professors Jeffrey Milyo and David Primo regarding the Commission’s preliminary report from earlier in the month.  The bottom line is that the solution to actual corruption in New York politics is not going to be achieved with spending taxpayer money subsidizing politicians or further restricting free speech rights. 

    Fans of the Institute for Justice and should tune in tonight at 9:00 p.m. ET to Dr. Diana Hsieh's live Internet radio show, Philosophy in Action.  My colleague Paul Sherman will be the guest, discussing campaign finance, the First Amendment, and the 2012 election.  Here's more information on the show:


    Many people support restrictions on spending in elections, particularly by corporations, in the name of "transparency" and "accountability." Institute for Justice attorney Paul Sherman takes a very different view. He claims that any restrictions on campaign spending are violations of freedom of speech, and he has successfully argued that view in courts across the country.


    To join the live broadcast and its chat, just point your browser to Philosophy in Action's Live Studio a few minutes before the show is scheduled to start. By listening live, you can share your thoughts with other listeners and ask follow-up questions in the text chat.


    If you miss the live broadcast, you'll find the audio podcast from the episode posted in the archive: Radio Archive: 9 January 2013


    For more about Philosophy in Action Radio, visit the Episodes on Tap and Show Archives.

    Professor Jeffrey Rosen has written an attack on Citizens United v. FEC that attempts to transform the progressive complaints against the case into the main reason for the loss of “Americans’ confidence in their political system.” Rosen presents no evidence for this assertion, of course, perhaps because none exists. The Pew Charitable Trust’s recent poll of public priorities concluded—even after almost-hourly criticisms of Super PACs in the media and on the campaign trail and the focus on Citizens United allegedly resulting from the Occupy Wall Street protest—that campaign finance “remains on the back burner for most Americans” and is one of the lowest ranked issues across party lines. This has changed little from previous years. It is difficult to imagine how something that is “on the back burner for most Americans” has caused Americans to become so disillusioned.


    Nonetheless, Professor Rosen sees signs of a “backlash” and faults the U.S. Supreme Court for failing to foresee this inevitable result. Rosen’s evidence of this “backlash” is weak: He cites the Move to Amend effort to “Occupy the Supreme Court,” an effort most notable for its utter failure to cause people to notice that it was occurring. He also cites a single decision of the Montana Supreme Court rejecting Citizens United as proof of a “judicial backlash.” But the Montana decision is unique. No other court has so blatantly rejected on-point Supreme Court precedent and a check of Lexis-Nexis reveals that Citizens United has been routinely followed, cited, and relied upon by dozens of federal and state courts across the country.


    Professor Rosen attributes the Court’s failure to predict this “backlash” to the fact that none of the Justices were politicians before coming to the Court. Rosen implies that, had some of the Justices been in politics prior to becoming justices, they would have understood how Citizens United would be received and, presumably, voted to uphold the law at issue in the case. He celebrates Justices like Warren, Douglas and Black, among others, who had political experience before coming to the Court.


    Justice_William_O_DouglasProfessor Rosen may have forgotten that Citizens United was not the first time Congress’s ban on political expenditures by corporations and unions had come before the Court. The Court had previously considered the ban twice and sidestepped the constitutional issue both times. In 1958, in U.S. v. International Union United Automobile, Aircraft and Agricultural Implement Workers of America, three justices dissented. These three justices would have reached the constitutional issue and struck the law down. These three justices were Warren, Douglas and Black. In the dissent, Justice Douglas called the law “a broadside assault on the freedom of political expression guaranteed by the First Amendment.” He wrote:


    Some may think that one group or another should not express its views in an election because it is too powerful, because it advocates unpopular ideas, or because it has a record of lawless action. But these are not justifications for withholding First Amendment rights from any group—labor or corporate. First Amendment rights are part of the heritage of all persons and groups in this country. They are not to be dispensed or withheld merely because we or the Congress thinks the person or group is worthy or unworthy.


    Justice_Wiley_RutledgeSimilarly, when the Court considered the law in 1948, four Justices dissented in the case. These Justices would have also reached the constitutional question and struck the law down. Although Justice Rutledge, a former academic and judge, wrote the dissent, he was joined by Justices Black, Douglas and Murphy. In case one is unfamiliar with the career of Justice Murphy, who died when he was just 59, he was a former U.S. Attorney General, Governor of Michigan, Mayor of Detroit, and Governor-General of the Philippines. Justice Rutledge’s dissent noted:


    A statute which, in the claimed interest of free and honest elections, curtails the very freedoms that make possible exercise of the franchise by an informed and thinking electorate, and does this by indiscriminate blanketing of every expenditure made in connection with an election, serving as a prior restraint upon expression not in fact forbidden as well as upon what is, cannot be squared with the First Amendment.


    Perhaps these politicians understood something that Professor Rosen does not: that a constitutional command that “Congress shall make no law . . . abridging the freedom of speech” means that Congress cannot constitutionally make a law abridging freedom of speech, regardless of “the serious political implications [the Court] could create” in coming to that conclusion. Ultimately, that is the role of the courts in constitutional cases—to uphold constitutional principles even in the face of public opposition, real or, in this case, mostly imagined. Indeed, this is exactly when judicial adherence to principle is most needed. Otherwise, the First Amendment, and the rest of our Constitution, becomes nothing but words on paper. Justices Warren, Douglas and Black understood this well, as did the justices in the majority in Citizens United.

    Tomorrow is the second anniversary of the U.S. Supreme Court’s landmark ruling in Citizens United v. FEC.  To mark the occasion, the Institute for Justice has released public statements defending that ruling and defending the rise of so-called “Super PACs” as a means for people to pool their resources to speak out about political candidates:


    Citizens United, Two Years Later: Institute for Justice Continues to Defend Landmark Free Speech Ruling


    Institute for Justice Defends Super PACs


    Speaking of Super PACs, John Samples of the Cato Institute was kind enough to write a blog post reminding people of the role the Institute for Justice played in their creation. Check out his post—SpeechNow, the Decision that Made a Difference—at the Cato@Liberty blog.

    Rebecca Rosen of The Atlantic reports that Microsoft has joined with Nike and other for-profit corporations to advocate for gay marriage in Washington State:


    In a week of tech industry protests about censorship, one company—Microsoft—is lending its voice to a different political cause: gay marriage.


    It has joined with five other businesses (Vulcan, NIKE, RealNetworks, Group Health Cooperative, and Concur) to support bills that would legalize gay marriage in Washington state, where Microsoft is based. The letter to Governor Chris Gregoire was brief. In its entirety it reads, “We write you today to show the support of our respective companies for SB 6239 and HB 2516 recognizing marriage equality for same-sex couples.”


    Good for Microsoft—they saw an issue they cared about and they spoke out. But, as critics of the U.S. Supreme Court’s ruling in Citizens United v. FEC keep reminding us, corporations aren’t people. Bearing that in mind, here are some questions for people who believe that corporations should not have First Amendment rights:


    Do you think Microsoft should be prohibited from engaging in this sort of advocacy unless it first gets approval from its shareholders?


    Do you think this sort of political advocacy is a “threat to democracy”?


    Do you think the government should have the power to ban this sort of political advocacy simply because Microsoft is a corporation?


    As it turns out, slogans like “corporations aren't people” aren’t very helpful when dealing with First Amendment issues, particularly if you’re sympathetic to the message being espoused.  The solution, we think, is to take the text of the First Amendment at face value and conclude—as the Supreme Court did in Citizens United—that the First Amendment prohibits the government from banning political speech based on the speaker’s identity.

    Writing for The Atlantic, Wendy Kaminer has a must-read takedown of the efforts by Massachusetts Senator Scott Brown and his opponent, professor Elizabeth Warren, to keep third-party groups from speaking out against their candidacies.  Here’s a snippet:


    Warren apparently wants the press to help silence outside groups. According to the Boston Globe, she has “suggested notifying broadcasters in the hopes of getting their help and ‘ensuring that the agreement not only cover express advocacy ads, but all paid advertisements that seek to promote or attack either candidate or campaign.’”


    Shame on any media outlet that offers “help” for efforts to repress independent advocacy. Candidates naturally want to monopolize electoral speech; they want to “control the narrative.” They’re entitled to desire control, obviously, but they’re not entitled to exercise it, and they should surely know better than to ask media outlets to act as enforcers for their campaigns. The presumptuousness of the proposed Brown/Warren agreement is jaw-dropping.


    Check out the whole thing.  While you’re at it, check out her article from earlier this week on the failure of campaign finance reform.

    This Saturday, voters in South Carolina will cast their ballots to decide which candidate they want to represent their party in the 2012 presidential election. Saturday also marks the two-year anniversary of the U.S. Supreme Court’s ruling in Citizens United v. FEC. As anyone who has followed the presidential campaign knows, Citizens United and its effect on the election is a topic of hot debate. In particular, there has been a tremendous amount of news coverage regarding so-called “Super PACs,” which were made possible, in part, by that ruling.


    Because the Institute for Justice supported the Court’s ruling in Citizens United and, indeed, played a direct role in the rise of Super PACs, we thought our readers might appreciate a little background on what exactly Super PACs are, how they came about, and how the law has continued to develop. What follows is not a complete history, but it should provide a solid overview.


    At the stroke of midnight this morning, popular Internet sites went "dark" in order to protest two anti-piracy bills under consideration in Congress: the House's Stop Online Piracy Act (SOPA) and the Senate's Protect IP Act (PIPA).  Instead of finding informative entries on topics of interest, visitors to Wikipedia's English website will find an ominous shadow of the usual logo with the following message:


    Imagine a World Without Free Knowledge
    For over a decade, we have spent millions of hours building the largest encyclopedia in human history. Right now, the U.S. Congress is considering legislation that could fatally damage the free and open Internet. For 24 hours, to raise awareness, we are blacking out Wikipedia. Learn more.


    On Google's home page, a black bar covers its iconic banner and links to an online petition opposing the bills. Under the search box, the site reads: "Tell Congress: Please don't censor the Web." Reddit, the popular social news website, replaced its usual content with a page describing its opposition to the bills, containing information on how to contact members of Congress, and a live update of latest news regarding the blackout. Mozilla is also participating in the "virtual strike" to protest the legislation, as are Craigslist and other websites.


    The political message of the blackout is unmistakable:  the proposed legislation would give the government unprecedented power to censor the Internet.


    Whether the anti-piracy bills would result in censorship of the Internet is an important question worthy of debate. But what is beyond question is that corporations – like Google, Craigslist, the Wikimedia Foundation, Mozilla, and others -- have a right to free speech protected by the First Amendment.


    That is what makes it so surprising that Occupy Wall Street and its offshoots have joined today's protest against SOPA and PIPA.  For months, the Occupy Movement has been telling us that corporations, like the ones involved in today's "virtual strike" have no free-speech rights.  Now they oppose SOPA and PIPA on the grounds that these laws would censor content on the Internet.  But if corporations have no right to free speech, what prevents the government from shutting down websites of corporations right now, even without authority under SOPA or PIPA? Would members of the Occupy Movement really be in favor of a world in which the government could censor anything a corporation said?  Eugene Volokh asks a related question in his post.


    Imagine a world without free-speech rights for corporations.  One thing is for sure:  it would look much worse than today’s blackout.

    Yesterday the U.S. Supreme Court summarily affirmed a lower-court decision upholding a federal law that prohibits noncitizens who lawfully reside in the United States—except for “permanent residents,” i.e., “green card” holders—from spending money to influence U.S. elections.  IJ had submitted a friend-of-the-court brief urging the Supreme Court to hear the case, Bluman v. FEC.


    The result is disappointing, not only because the Supreme Court sanctioned the censorship of noncitizens who lawfully live in the United States, but because the Court did not stick to the principled stance it announced in Citizens United v. FEC.  Indeed, the Montana Supreme Court recently pointed to the lower-court ruling in Bluman—affirmed by the Supreme Court today—as a reason to defy Citizens United.


    What is perhaps most disappointing is that the Court’s summary affirmance could be read erroneously to sanction not just the lower court’s result, but also the slipshod approach the court took to getting there.  The lower court disposed of the case on a motion to dismiss, which meant that the government was not required to provide any evidence to support its argument that the government had a compelling interest in banning speech by noncitizens, including even such patently harmless speech as leafleting in Central Park.  This is, to our knowledge, the first time in the Supreme Court’s history that it has upheld a campaign-finance law that came before it with no factual development on a motion to dismiss.


    In all likelihood, the decision is Bluman is an anomaly that will not have a major effect on the rest of the Court’s campaign-finance jurisprudence—it will be treated as a sui generis rule that applies only to noncitizens.  As opponents of campaign-finance regulations, we take comfort in that.  But as believers in the idea 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—we can’t help but be disappointed in the Court’s ruling.


    Despite the case’s unfortunate conclusion, we give kudos to Michael Carvin, Yaakov Roth, and Warren Postman of Jones Day for their exemplary work on the case.  And, of course, kudos to plaintiffs Benjamin Bluman and Dr. Asenath Steiman for being willing to stand up for their rights.

    Over at ACSblog, Ohio State law professor Dan Tokaji argues that it’s time for campaign finance “reformers” to proclaim proudly that “equality,” rather than “corruption,” is the reason they favor restricting political speech:


    Acceptance of equality as a rationale won't make hard questions surrounding campaign finance regulation disappear. It will, however, ensure that we are asking the right question: Whether particular regulations will really promote political equality, without unduly infringing other values like fair competition. The time has come for U.S. reformers to embrace equality openly, rather than continuing to disguise it in the garb of anticorruption. This approach will not find favor before the current U.S. Supreme Court. In the long run, however, it will lead us toward a healthier democracy that more closely approaches the ideal of equality for all citizens, regardless of wealth.


    We agree that “reformers” should be more candid about how the equality rationale is at the heart of their efforts to limit speech. But Professor Tokaji fails to realize that there’s a very good public-relations reason for “reformers” to keep that rationale under wraps: It’s pretty obvious that it will inevitably lead to censorship.


    For example, under the equality rationale, there’s no reason the government couldn’t silence media outlets and outspoken critics of the government’s policies on the ground that those speakers aren’t promoting political equality—defined by the government as the implementation of its policies. If the public rejects those policies, then speech must be limited further to avoid what the government deems to be inegalitarian outcomes.


    These logical implications of the equality rationale do not, to say the least, enhance the marketability of campaign finance “reform.” 


    Professor Tokaji does not grapple with these implications.  Perhaps he hopes that wise and benevolent leaders will be fair in their policing of political speech, including speech they don’t like, but he should know better. Perhaps he hopes that the only leaders who will exercise this power will be those who promote his notion of “equality,” but, again, he should know better.


    Thankfully, the Founding Fathers did know better. That’s why the First Amendment commands that “Congress shall make no law . . . abridging the freedom of speech.” Whether regulations comply with it—rather than whether they promote an amorphous notion of political equality—is the right question to ask. Until he does so, Professor Tokaji (and other proponents of the equality rationale) will keep coming up with the wrong answers about the government’s power to limit political speech.

    Republicans in Congress have responded to the apparent desire among voters for smaller government with a proposal to eliminate the public financing system for presidential elections. Our friends over at the Center for Competitive Politics present some very compelling reasons for ending the program. As they point out, doing so would save a minimum of $617 million over ten years on a program that, after President Obama declined funds in 2008, is unlikely to draw any interest among serious candidates in the future without a substantial increase in the program. Brad Smith estimates that the fund would need at least $750 million to entice candidates to participate, which is more than the budgets of the Corporation for Public Broadcasting, the Consumer Products Safety Commission, the U.S. Commission on Civil Rights, the Holocaust Museum, and the FEC combined. Of course, unserious candidates seem to love public financing. As CCP points out, such luminaries as Alan Cranston of Keating Five fame, ex-Gov. Milton Schapp of Pennsylvania, who was later convicted of fraud, and perenial political gadfly Lyndon LaRouche have received financing under the program.


    Another very good reason to eliminate the program is that the Constitution nowhere authorizes Congress to give taxpayer dollars to presidential candidates. Admittedly, we are in the minority in making this claim. In 1937, the Supreme Court regrettably upheld Congress’s power to spend money on anything deemed to serve the “general welfare,” and it later applied that reasoning specifically to the presidential public financing program in Buckley v. Valeo in 1976. But it’s never too late to get things right, and fortunately, the Constitution is on our side. (Toward that end, yesterday IJ launched the Center for Judicial Engagement, which is dedicated to demonstrating that the courts ought to take the Constitution, and, in particular, the limits on the size and scope of government, seriously. You can read more about it here.)


    Finally, public financing of campaigns inevitably leads to restrictions or burdens on freedom of speech. For example, Arizona has set up a system that effectively punishes privately funded candidates and independent groups for spending more on their campaigns than their publicly funded opponents. The system is designed to force all candidates into the public system, where their spending is “leveled” and their voices equalized. The government has no place regulating speech in this way. IJ, along with the Goldwater Institute is challenging that system before the U.S. Supreme Court.


    As Brad Smith says, “Congress should return to First Amendment first principles and create a doctrine of separation of campaign and state.” Politicians have been talking the limited government talk for months now. It’s time for them to walk the walk.

    Today, Citizens United v. FEC turns one year old. That’s cause for celebration.


    As readers of this blog know, in Citizens United the Supreme Court vindicated free-speech rights by holding that the First Amendment prevents the government from banning corporations from spending their money to express their views about candidates for office. The Court’s decision was an emphatic reminder that, under the First Amendment, the government may not censor political speech, no matter who is doing the speaking: “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.”


    There will be time enough to document, rebut—and yes, laugh at—the continuing hysterical attacks on Citizens United by campaign finance “reformers.” But for now, I hope you’ll join Congress Shall Make No Law in celebrating Citizen United’s first birthday by changing your Facebook status to “Happy Birthday, Citizens United v. FEC.” And when you’re at happy hour this evening, please raise a glass to that decision’s robust defense of free speech.


    Image source: Zellaby

    “People for the American Way” has released a deeply ridiculous video that purports to explain the impact of Citizens United.  The takeaway seems to be that the biggest beneficiaries of the Citizens United ruling are homophobes, anti-Semites and people who want to poison babies (seriously, we aren’t making this up).  Their solution?  Amend the Constitution to restrict free speech.




    Even setting aside PFAW’s outrageous hyperbole, their calls to restrict speech should offend all Americans.  While PFAW positions itself as a defender of democracy, the entire premise underlying their video is that voters are too stupid to elect the “right” candidates if they are also permitted to listen to corporate speech.  And PFAW’s proposed “solution”—silencing disfavored speakers to “improve” democracy—is nothing more than what the U.S. Supreme Court correctly described as censorship for the purpose of thought control.


    If you agree with the Supreme Court that “the First Amendment confirms the freedom to think for ourselves,” then make your voice heard by letting PFAW know what you think of their video.

    At a time when proponents of stricter campaign finance regulations continually howl about the increasing costs of political campaigns, you would think that a grassroots political group would be applauded for trying to keep costs down.  But according to a Washington Post story released late last week, the organizers of a write-in campaign for former D.C. Mayor Adrian Fenty may soon be fined $18,500 for violating campaign finance laws.


    Their crime?  Recycling.


    It seems that the Save D.C. Now Committee “used unused campaign signs, leaflets and stickers to try to get voters to write in Fenty instead of supporting [Vincent] Gray.”  The materials were left over from Fenty’s unsuccessful primary campaign.


    recycleGray’s campaign lawyer responded by filing a campaign finance complaint against the group.  “They alleged that campaign finance laws forbid a political community [sic] from using materials paid for by another.”


    Regardless of the legal merit of these allegations, this is yet another example of how campaign finance laws—ostensibly passed to limit the “corrupting” influence of big money on politics—make genuine grassroots political campaigning virtually impossible.  The Save D.C. Now Committee raised a grand total of $7,000.  They are now being fined more than twice that, and for what?  For not letting perfectly usable political signs and stickers go into the garbage.


    The Office of Campaign Finance still has an opportunity to reverse this ridiculous fine.  Here’s hoping they do.


    Image source: TheTruthAbout

    Linda Greenhouse uses the occasion of congressional Republicans reading the Constitution on the House floor to take a jab at the Supreme Court’s ruling in Citizens United v. FEC and the constitutional fidelity of its supporters.  Says Greenhouse:


    It was just last January, in the Citizens United case, that the court granted corporations a robust First Amendment right, as citizens, to spend money in support of or against candidates in federal elections.


    House Republicans could read the Constitution every day between now and July 4 without finding a word about corporate citizenship. Funny, but it just doesn’t seem to be there.  Call it a problem of democracy.


    This critique turns the Constitution on its head.  It should surprise no one that the Constitution does not explicitly address the right of citizens to speak through the corporate form.  Indeed, the genius of our constitutional system is that it makes such an explicit statement unnecessary, because the rights we enjoy as Americans are numerous and indefinite, while the powers of Congress are limited and enumerated.


    We_the_peopleFor those who complain that Citizens United lacks a basis in the text of the Constitution, we ask, “What is the textual foundation for Congress’ power to ban independent corporate speech?”  One could, after all, read the First Amendment every day between now and July 4 without finding a single exception to the plain command that “Congress shall make no law . . . abridging the freedom of speech.”  One could also scrutinize Article I of the Constitution—which establishes the powers of Congress—in search of an enumerated power that grants Congress the authority to regulate the independent speech of any group of people, but this search too will turn up nothing.


    If anyone is ignoring the text of the Constitution, it is the opponents of Citizens United.  A faithful reading of that text makes clear that Congress lacks the authority to restrict political speech, whatever the source.


    Image source: Roberthuffstutter

    Check out my colleague Bill Maurer's guest column in the Seattle Times warning the Washington State Legislature not to convert a political scandal into speech-squelching legislation.

    Will the new Congress respect free speech, or will its members act like they went to Camp Politics?  Below, check out IJ’s new video of bonus footage not seen in its original Camp Politics video, which explained how politicians learn how to circumvent the First Amendment with campaign finance laws.


    More Lessons From Camp Politics

    Will the new Congress respect free speech, or will its members act like they went to Camp Politics?  Below, check out IJ’s new video of bonus footage not seen in its original Camp Politics video, which explained how politicians learn how to circumvent the First Amendment with campaign finance laws.

    [Embed of new video here].  

    More Lessons From Camp Politics


    Will the new Congress respect free speech, or will its members act like they went to Camp Politics?  Below, check out IJ’s new video of bonus footage not seen in its original Camp Politics video, which explained how politicians learn how to circumvent the First Amendment with campaign finance laws.


    [Embed of new video here].