Congress Shall Make No Law...

    The Philadelphia Inquirerand its on-line site, Philly.com, have been covering a story that features law makers taking large amounts of money, making promises for votes, a potential cover-up and a politician contemplating suing the newspaper that broke the story.

     

    The story seems to have it all, from a campaign finance reformer’s standpoint. Politicians stuffing money into their pockets from a shady character, undercover recordings, promises of changing votes for money and the suggestion of a lawsuit against the news organization by the elected official at the center of the story. It was precisely this kind of scandal that led to Arizona’s “Clean Elections” system and the Federal Election Campaign Act. Normally, this would lead to reformers calling for new laws to “clean up” Pennsylvania politics (putting aside the fact that taking bribes is already illegal under Pennsylvania law).

     

    Oddly, however, there has been little coverage of this story by the most strident organizations in favor of campaign finance laws. For instance, on the date that Philly.com covered the threat by the elected official at the center of this story to sue Philly.com for defamation, the New York Times featured twostories about the Koch brothers engaging in legal political activities. As of the date of this blog, searches on the Times, Common Cause and Public Citizen websites do not reveal any stories covering the facts uncovered by Philly.com, but dozens of entries about the Kochs.

     

    It appears to be a mystery as to why some campaign finance reformers would ignore such a relatively rare opportunity to promote their view of American politics as being awash in a sea of bribery, until one realizes that the elected official in question, Pennsylvania Attorney General Kathleen Kane, is an up-and-coming Democratic politician with an eye on federal office. On the other hand, the Koch brothers are most associated with (legal) financial support for Republican officials and policies.

     

    Unwittingly, the selective outrage of some campaign finance reformers betrays one of the dirty secrets of attempts to regulate political speech, namely, that it is human nature for people to treat those with whom they agree better than those with whom they disagree. Played out in the context of law enforcement, giving the government power to prosecute people for participating in peaceful political activity means that, often, the government will reserve its zeal for those who oppose whomever is in power—Democrat or Republican. If the New York Times will engage in selective outrage, why wouldn’t the Federal Election Commission or the Justice Department? And, if that is the case, why would people in a politically diverse nation want to give the government power to prosecute political disagreements?

     

          

    Today is the two-year anniversary of the D.C. Circuit Court of Appeals’ unanimous ruling in SpeechNow.org v. FEC, holding that limits on the right of Americans to pool money to pay for independent political advertisements are unconstitutional. That ruling made possible the creation of so-called “super PACs,” which have played a major role in the 2012 Republican presidential primaries. The Institute for Justice is proud to have worked with the Center for Competitive Politics to represent the plaintiffs in SpeechNow.org, and is committed to defending that ruling in the courts of law and the court of public opinion.

     

    More information:

     

    IJ’s press release about anniversary

     

    CCP’s press release

     

    A brief history of super PACs

     

    wisconsinYesterday the Wisconsin Supreme Court issued a very anticlimactic decision in a challenge to one of the most speech-squelching laws in the country.  The court split 3-3 over whether Government Accountability Rule 1.28 violates the First Amendment and the Wisconsin Constitution by requiring everyone to register with the government who, in the 60 days before a general election, spends more than $25 and so much as mentions a candidate for office in a negative or positive light.  Three justices thought the rule was constitutional while the other three thought the case should not have been granted in the first place.  The case was an “original action,” meaning it was only ever before the Wisconsin Supreme Court, so the legal effect of the case is it’s as though it never happened.

     

    We have commented on this case before, and the Institute for Justice filed a friend-of-the-court brief (pdf) in the case last spring.

     

    But, this isn’t the end of the story.  There are two pending federal court challenges to Rule 1.28 that have been frozen in carbonite since the Wisconsin Supreme Court accepted the case in late 2010.  Those lawsuits can now proceed, so stay tuned . . .

    Readers of Make No Law may recall the case of Bluman v. FEC, a challenge to the federal law that prohibits noncitizens, even those who lawfully reside in the United States, from spending any money to influence state or federal elections. In January the U.S. Supreme Court summarily affirmed a lower-court ruling upholding the law.

     

    The Institute for Justice had filed a brief urging the U.S. Supreme Court to review the case and to strike down the law as it applied to aliens lawfully living in the United States. Our reasons for filing the brief were twofold. First, we believe 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. Second, we knew that a victory for the government would be used in future cases to justify restrictions on U.S. citizens and, ultimately, to undermine the Supreme Court’s landmark ruling in Citizens United.

     

    Less than two months after the Supreme Court’s summary affirmance in Bluman, that is precisely what we have seen. First came the Montana Supreme Court’s defiant ruling in Western Tradition Partnership, Inc. v. Attorney General, which cited Bluman to argue that the Citizens United decision was a narrow, fact-bound ruling, rather than the broad repudiation of government censorship that it obviously was. And now we have this argument from the Federal Election Commission in Wagner v. FEC, a challenge to a federal ban on political contributions and expenditures by federal contractors:

     

    Contrary to the plaintiffs’ suggestion that only concerns about corruption or its appearance can justify FECA restrictions . . . protecting the integrity of the federal government from improper outside influence has been deemed an adequate basis, by itself, to justify a complete ban on contributions by certain individuals. See Bluman v. FEC, 800 F. Supp. 2d 281, 292 (D.D.C. 2011) (upholding ban on foreign national contributions in 2 U.S.C. § 441e), aff’d, 132 S. Ct. 1087 (2012).

     

    That the FEC would latch onto Bluman as a justification for censoring speech by U.S. citizens is not surprising— Bluman is one of the FEC’s few recent victories and, as the Supreme Court noted in Citizens United, the FEC’s “business is to censor.” And it still remains to be seen what will happen on the merits in both the Wagner case and Western Tradition Partnership (many are predicting that the Supreme Court will summarily overrule the Montana court’s ruling). But these cases demonstrate that whenever we make exceptions to the principles of free political speech and association that are enshrined in the First Amendment, proponents of speech restrictions will invariably try to expand those exceptions. That’s why IJ got involved in Bluman v. FEC and why we will continue to vigorously defend the Citizens United ruling going forward.

    One of the favorite, and most incredible, tactics of those defending Arizona’s Clean Elections scheme is to close their eyes to evidence that its matching funds provision has deterred the speech of privately funded candidates and independent groups and then assert such evidence doesn’t exist. I pointed this out in an earlier post, and in yesterday’s Supreme Court argument, Bradley Phillips, defending matching funds, predictably tried this line of attack.

     

    Justice Scalia would have none of it:

     

    There was testimony in the, in the district court from individuals who said that they withheld their contributions because of this. It’s – it’s obvious statistically also that many of the expenditures were made late in the game, where perhaps they were not as effective, in order to be unable to trigger the matching funds in time for the opposing candidate to do anything about it. I do not understand how you can say that there is no evidence. I mean, maybe you might say I do not find the evidence persuasive, but don’t tell me there’s no evidence.

     

    Later in the argument, our colleague Bill Maurer pointed to the specific examples of candidates and independent groups declining to do mailings or raise funds or get involved in particular races because matching funds would kick in. You can read about some of those here.

     

    Justice Scalia is referring to the original research done in the case by political scientist David Primo, who found that privately funded candidates—especially in competitive races—would delay speaking until “late in the game” to avoid triggering matching funds to taxpayer-funded opponents. That means less time for candidates to speak and less time for voters to consider the message. The First Amendment does not tolerate such government interference in what ought to be free speech in the time and manner of the candidate’s or group’s own choosing.

     

    Incidentally, Primo’s statistical research is backed up by interviews by political scientist Michael Miller and the GAO. Miller finds that such delay is commonplace among privately funded candidates, and the GAO adds that independent groups act similarly. That’s rather a lot of evidence to deny and makes Clean Elections’ defenders’ tactic look not only like a poor strategic choice, but also downright misleading.

    Congratulations to our colleague Bill Maurer, who did an outstanding job arguing before the U.S. Supreme Court today in Arizona Free Enterprise Club v. Bennett.  As the early news coverage notes, the conservative members of the Court were skeptical of the government’s arguments and seemed inclined to hold Arizona’s law unconstitutional.  That’s good news for free-speech advocates.

     

    For more information on the case, be sure to check out Maurer’s op-ed in today’s edition of USA Today and my colleague Steve Simpson’s op-ed at Townhall.com.  Additional pre-argument coverage by John Lott and Brad Smith is available at National Review Online and the Wall Street Journal.

     

    We will continue to provide links to news coverage of the argument, and will provide a link to the argument transcript as soon as it becomes available.

     

    UPDATE:  Click here to read the transcript of Monday’s argument.

     

    Additional coverage of Mondays argument:


    ABA Journal

    ABC News

    All Headline News

    Arizona Republic

    Associated Press

    Bangor Daily News

    Bloomberg

    Cato @ Liberty

    Center for Competitive Politics

    Center for Responsive Politics

    Christian Science Monitor

    CNN

    Common Cause

    Connecticut Mirror

    East Valley Tribune

    First Amendment Center

    Fox News

    Los Angeles Times

    Milwaukee Journal Sentinel

    Mother Jones

    National Journal

    New York Times

    PBS Newshour

    Phoenix New Times

    Reuters

    SCOTUSblog

    Slate

    Talk Radio News Service

    UPI

    USA Today

    Wall Street Journal (and another (and another))

    Washington Examiner

    Washington Post

    Washington Times

    The Weekly Standard

    Charles Fried and Cliff Sloan argue in the New York Times that the U.S. Supreme Court’s ruling in Citizens United should lead the Court to uphold Arizona’s system of government-funded political campaigns.  To the contrary, Citizens United held that government cannot burden speech based on the identity of the speaker.  But that is exactly what Arizona’s law does: It was designed—and sold to the public—as a way to discourage speech by privately funded candidates and the groups that support them.

     

    Fried and Sloan seem untroubled by this. Indeed, they argue that there are no limits on the government’s power to selectively fund its preferred speakers.  Thankfully, the current Court is skeptical of campaign finance laws precisely because of the risk that they will be used to rig elections.  We hope this skepticism will lead the Court to strike down Arizona’s unconstitutional “clean elections” system.

     

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    Writing for Slate, election-law scholar Rick Hasen previews IJ’s upcoming argument before the U.S. Supreme Court in Arizona Free Enterprise Club v. Bennett, which along with the consolidated case McComish v. Bennett, challenges Arizona’s unconstitutional system of publicly financed “matching funds.”  Hasen—a staunch proponent of campaign finance restrictions—is no fan of our work on the case, which he claims boils down to “wealthy candidates and outside groups” arguing that “more speech is unfair.”  But Hasen’s criticisms badly miss the mark.

     

    supremecourtMuch of Hasen’s argument is framed in terms of hostility towards “wealthy candidates and outside groups.”  Of course, these groups are entitled to First Amendment protection, just like anyone else.  But more importantly, this framing is based on two false assumptions: that only wealthy candidates and groups will benefit if Arizona’s law is struck down, and that Arizona’s law does not currently disproportionately benefit wealthy groups.  Neither of these assumptions is correct.

     

    First, Arizona’s law is designed to discourage all privately funded candidates—both rich and poor—from raising more than an arbitrarily set amount of money to get their messages out to the public.  The fact that the law destroys the incentive to raise and spend private money on political campaigns was one of the major selling points used by the laws proponents.   A victory for our clients in Arizona would certainly help candidates who can afford to bankroll their own campaigns.  But it will also help candidates of modest means who exercise their constitutional right to raise private funds.  And it will help all independent groups—whether well-financed or not—that wish to spend money supporting privately financed candidates.

     

    Second, some of the biggest beneficiaries of the current law are wealthy “outside” groups.  Under Arizona’s law, if an independent group spends money supporting a privately funded candidate who is facing a government-funded opponent, the government will cut a check for an equal amount to the government-funded candidate.  This is true even if another, wealthier independent group has spent a vastly larger amount of money supporting the government-funded candidate.  In other words, independent groups of modest means who support privately funded candidates face a drag on their First Amendment rights that wealthy groups supporting government-funded candidates are not subject to.  Striking down Arizona’s matching-funds law would put all independent groups—rich and poor alike—on the same legal footing.

     

    Hasen also claims that our argument that matching funds violate the First Amendment is “at odds with the ‘more speech is better’ mantra of the court in Citizens United.”  This argument reveals that Hasen’s view of the First Amendment is, on a fundamental level, very different from ours.  More importantly, it is different from the view held by the five Justices in the Citizens United majority.

     

    It is questionable whether Arizona’s law increases the overall amount of speech, but it doesn’t matter either way.  Any such effect is totally irrelevant to the First Amendment question, which is:  Does the law unconstitutionally chill speech by privately funded candidates and the independent groups that support them?  Simply put, the government cannot defend a law that chills one speaker on the grounds that it encourages a different speaker.  The First Amendment, after all, is not a mandate for government to increase the aggregate amount of speech in society.  It is a negative command:  “Congress shall make no law . . . .”  It constrains the government’s ability to interfere in the marketplace of ideas, as Arizona has sought to do with its so-called “Clean Elections” system.

     

    Finally Hasen attempts to distinguish the Supreme Court’s 2008 ruling in Davis v. FEC, which controls the outcome of this case.  In Davis, the Supreme Court struck down the so-called Millionaire’s Amendment, a provision of the McCain-Feingold campaign finance law that increased the maximum amount of money a political candidate could accept from contributors if he was running against a self-financed opponent.  The Court held, correctly, that the Millionaire’s Amendment unconstitutionally burdened the right of self-financed candidates to robustly fund their own campaigns, because doing so triggered a benefit to their opponents.

     

    Arizona’s law is even worse than the law in Davis.  In Davis, favored candidates were only given the opportunity to raise additional money.  In Arizona, the government gives them a direct subsidy.  Hasen attempts to distinguish Davis, arguing that “Arizona did not enact its system to ‘level the playing field,’” but this critique simply doesn’t match up with the facts.  In reality, the proponents of Arizona’s law expressly sold it to the public as a means of leveling the playing field.

     

    In short, Hasen’s article does little more than express frustration at what we hope will be the imminent demise of Arizona’s matching-funds system.  Hasen’s frustration is undoubtedly shared by many proponents of campaign finance laws who, over the last five years, have seen many of those laws struck down.  But the fact that Hasen and others are frustrated, and would prefer that government have the power to micromanage political speech—amplifying some speakers and muting others—is not an argument that the First Amendment gives government that power.  It does not, which is precisely why we have challenged Arizona’s law for over a decade, and why the Supreme Court should strike it down.

    Earlier I took issue with blog posts by Ezra Klein and political scientist Michael Miller claiming supposed benefits from so-called “Clean Elections” laws like Arizona’s, which will be considered by the U.S. Supreme Court on Monday.  But perhaps a more nefarious tactic of defenders of such schemes is to deny that they have any effect on speech at all.

     

    In a nutshell, Clean Elections’ defenders want us to believe that incentives don’t matter.  Economists would certainly be surprised to learn that.  And the testimony of candidates and independent groups in the case suggest otherwise, as do public funding backers themselves when they argue that “matching funds” are essential to encouraging candidates to sign up for taxpayer funding in the first place.  The claim also defies common sense:  If the government sends a buck to your opponent every time you spend a buck, this will probably have some effect on your spending and, therefore, speaking.

     

    Read more...

    Yesterday, Ezra Klein linked to a graph that, he says, shows the importance of so-called campaign finance “reform,” and more specifically using taxpayer dollars to fund the campaigns of political candidates.  This matters now because on Monday the U.S. Supreme Court will hear a challenge to one the most sweeping of such schemes, Arizona’s “Clean Elections” law.  Interestingly, the graph and Klein’s post tell us much more about the impulse behind campaign finance “reform” than they do about the supposed benefits of such systems (or whether they are constitutional).

     

    Read more...

     Katrina Trinko of NRO reports:

     

    During most elections, candidates accuse their opponents of making false claims. In Ohio, they can go a step further: They can ask a government commission to decide who is telling the truth.

     

    For more on this modern-day Ministry of Truth, click here.

    supremecourtYesterday, the Institute for Justice filed a reply brief in the U.S. Supreme Court in support of its challenge to Arizona’s Clean Elections Act. The Goldwater Institute, which is litigating a related challenge before the Court, filed its reply brief on Tuesday.

     

    For those of you who don’t remember, Arizona’s system gives publicly financed candidates government money whenever traditional candidates or independent groups speak “too much.” Here’s a short video that explains how the Act works:

     

     

     

    The reply briefs that the Institute for Justice and the Goldwater Institute filed demonstrate not only how this regime violates the First Amendment, but how it flouts a directly controlling U.S. Supreme Court case that was decided just three years ago.

     

    The U.S. Supreme Court will hear oral argument in the case on March 28th. Come back to MakeNoLaw.org for more updates as the case progresses.

    wisconsinAs we’ve discussed on MakeNoLaw.org before, in July 2010, the Wisconsin Government Accountability Board issued a rule that all communications made for a political purpose—including emails, Facebook posts, t-shirts and handmade signs—are subject to disclosure and reporting requirements if a speaker spends more than $25 producing them.  Although the worst aspects of the rule have been temporarily suspended, it will fully take effect again by September 2011.

     

    The rule does not just apply to traditional “express advocacy” asking people to vote for or against candidates.  Sixty days before an election, the rule mandates reporting of money spent on any statement that “refers to the personal qualities” of a candidate or “supports or condemns” a candidate’s position on issues.

     

    Thankfully, a number of groups and individuals have challenged the rule in the Wisconsin Supreme Court.  This week, the Institute for Justice filed a brief in support of them, arguing that the new rule will have significant chilling effects on citizens’ ability to engage with their neighbors on important public issues.  The brief is available here (pdf).

     

    Given what’s been going on in Wisconsin lately, the brief is a very timely reminder of the importance free speech plays to all sides of political debate.  For example, if the members of the Wisconsin Assembly and the Governor were up for reelection within the next 60 days, the protestors who have criticized their actions over the past few weeks would have violated the law and been subject to criminal penalties because they didn’t report every penny spent on their protests.  If the First Amendment means anything, it protects the protestors, and everyone else, from such a ridiculous rule.

    On March 2, the U.S. Supreme Court, in an 8-1 opinion written by Chief Justice John Roberts, handed down its ruling in Snyder v. Phelps, upholding the right of the 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.”

     

    WestboroWhile 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.

     

    Image Source: k763

    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.

     

    TeaParty-AliceIn 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.