Congress Shall Make No Law...

    Two top-notch organizations have added new blogs that will discuss campaign finance issues, among other things.

     

    First, the Executive Branch Project at the Federalist Society for Law and Public Policy Studies has created the Executive Branch Review Blog, which addresses all things executive branch. Here’s the description of the effort:

     

    An increase in Federal executive branch regulatory activity – whether through executive order, formal or informal administrative agency action – has been noted by many across the country. In launching Executive Branch Review, the Practice Groups of the Federalist Society seek to prompt a national debate about whether there has been an uptick in such regulatory activity, and, if so, with what consequence. The project will provide an objective resource that identifies major government activity, and provides a forum for debate and discussion about whether such regulation constitutes a form of legal and regulatory overreach.

     

    As both the Federal Elections Commission and the Internal Revenue System are both executive agencies, the blog promises to have some terrific insight on the issues touching upon (if not consuming altogether) these organizations.

     

    Second, Perkins Coie LLP’s Political Law group has begun a blog on election law, In the Arena. The group is one of the best and most active in the country and the blog reflects the viewpoint of pragmatic practitioners and a realistic approach to what regulation can and cannot do. (Full disclosure: I was an attorney at Perkins Coie before coming to IJ.)

     

    For people who follow campaign finance and constitutional issues, both are well worth a bookmark.

    The Federal Election Commission has been in many fights about free speech. But now it’s in a fight with free speech, or rather with “Free Speech,” the name taken by a group of three Wyoming residents who, represented by the Wyoming Liberty Group, yesterday filed a federal lawsuit against the FEC. And, for once, a case’s name—Free Speech v. FEC—reveals precisely what’s at stake.

     

    The lawsuit focuses on an important, unresolved issue in campaign-finance law. Free Speech wants to engage in independent political speech, but cannot be sure whether or not its speech will trigger legal obligations that it register with the FEC and report information about its political activities. The group sought guidance from the FEC, but the law is so ambiguous that the FEC’s commissioners deadlocked, leaving Free Speech with no more information on how to comply with the law than it started with.

     

    The legal issues in the case—which are detailed in Free Speech’s Complaint—are complicated. But the implications of this case could be profound. As economist Jeff Milyo of the University of Missouri detailed in Campaign Finance Red Tape, having to register as a political committee and deal with all of the associated legal requirements is a significant burden, particularly for small groups. A victory for Free Speech would remove many of these burdens and bring much-needed clarity to the law.

     

    More information on the case, including case-filing documents, is available here.

    minnesotaMonday’s Supreme Court decision on Arizona’s “Clean Elections” law reaffirms that the government may not burden a person’s speech by forcing them to choose between remaining silent or creating an advantage for their political opponent.  Minnesota’s current public financing law appears to run afoul of the new ruling.

     

    Minnesota caps candidate’s spending when she chooses to receive public money.  But if she runs against an opponent who does not receive public money and who spends more than a government-approved amount on his political speech, then Minnesota lifts the publicly financed candidate’s spending limits, and allows her to still receive the public money.

     

    For example, in last year’s gubernatorial contest, Tom Emmer received public financing and agreed to spending limits.  But because his opponent, Mark Dayton, refused public dollars to fund his campaign, Emmer’s limits were lifted and he got to keep all the public money lavished on his campaign.  Minnesota punishes traditionally funded candidates like Dayton for daring to exercise their right to freely engage in political speech.  It does so when it triggers great financial benefits to government-funded candidates when they face candidates who opt only to receive voluntary, private contributions. Minnesota punished Dayton for speaking by allowing his political opponent to double dip on contributions—getting state money AND private contributions—as a direct consequence of his decision to speak.

     

    Originally, Minnesota’s system, just like Arizona’s, included matching funds and burdens on independent groups, but those were declared unconstitutional in 1994. Minnesota’s system of allowing government-funded candidates to double dip into the political contribution well when their traditionally financed opponents choose to speak more than a government-prescribed amount is a practice that is bound to chill speech and remains constitutionally questionable..

    The U.S. Supreme Court this morning handed down a 5-4 ruling in the consolidated cases Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett and McComish v. Bennett, striking down Arizona’s speech-squelching “Clean Elections” law.  The majority opinion, written by Chief Justice Roberts, concluded:

     

    Arizona’s program gives money to a candidate in direct response to the campaign speech of an opposing candidate or an independent group. It does this when the opposing candidate has chosen not to accept public financing, and has engaged in political speech above a level set by the State. The professed purpose of the state law is to cause a sufficient number of candidates to sign up for public financing, which subjects them to the various restrictions on speech that go along with that program. This goes too far; Arizona’s matching funds provision substantially burdens the speech of privately financed candidates and independent expenditure groups without serving a compelling state interest.

     

    The Court also strongly rejected the idea that laws like Arizona’s could permissibly be used to “level the electoral playing field”:

     

    “Leveling the playing field” can sound like a good thing.  But in a democracy, campaigning for office is not a game.  It is a critically important form of speech.  The First Amendment embodies our choice as a Nation that, when it comes to such speech, the guiding principle is freedom—the “unfettered interchange of ideas”—not whatever the State may view as fair.

     

    The full opinion is available here.

     

    Here's a brief, three-minute video explaining how Arizona’s so-called “Clean Elections” law burdened free speech:

     

                                              

     

    This is IJ’s fifth case before the Supreme Court and our fourth victory.  IJ’s only loss before the Court came in Kelo v. City of New London, the infamous 2005 ruling that sparked a nationwide backlash resulting in 43 states enacting legislation to curtail eminent domain abuse.

     

    The Institute for Justice is joined in this victory by the Goldwater Institute, which represented plaintiffs in the consolidated case McComish v. Bennett. Goldwater’s statements on today’s victory is available here.

     

    We will continue updating this post throughout the day with links to early coverage of the Court’s ruling.

     

    UPDATE:

     

    Additional coverage of Monday's decision:

     

    ABA Journal

    ABC News

    Arizona Daily Star

    Associated Press

    Balkinization (Heather K. Gerken)

    Ballot Access News

    Bloomberg

    Brennan Center for Justice

    Campaign Finance Institute

    Cato @ Liberty

    Center for Competitive Politics

    CNN

    Common Cause & Public Campaign

    Connecticut Mirror

    Democracy 21

    Demos

    Heritage Foundation's Foundry Blog

    The Hill

    Justice at Stake

    Los Angeles Times

    National Journal

    New York Times

    New York Times: Room for Debate Blog

    NPR

    Paul Clement (in Slate)

    People for the American Way

    Phoenix New Times

    Politico

    Portland Press Herald

    Reason: Hit & Run

    Reuters

    Rick Hasen (in The New Republic)

    Stephen Hoersting (in National Review)

    TPMMuckraker

    Tuscon Weekly

    UPI

    USA Today

    Wall Street Journal

    Washington Examiner

    Jeff Patch has a must-read account of the latest affront to unfettered speech on the Internet.  The Federal Election Commission on Wednesday denied a request by the social-media website Facebook that would have allowed the company to sell advertising space to candidates and political parties without requiring the ads to contain a lengthy disclaimer stating who paid for the ad.  Because Facebook ads are so small, the ruling makes them far less practical, in turn making it harder for poorly funded candidates to use Facebook as a cheap way to reach out to voters.

     

    Facebook had argued that their ads should be treated like campaign pens or buttons, which are exempt from the disclaimer requirement.  That wasn’t a bad argument, considering the FEC had ruled less than a year ago that short ads on Google were not required to contain a full disclaimer.  But as Patch reports, the three Democratic Commissioners weren’t buying it this time:

     

    “The Internet is nothing like pens and buttons. It has a range of fabulous capabilities,” said [FEC] Commissioner Ellen Weintraub. “My Facebook app on my phone is really smart . . . I will get a chime telling me that my daughter poked me.”

     

    In the end, the FEC denied Facebook’s request by a deadlocked 3-3 vote along party lines. For the whole story, check out Patch’s great write-up in the Daily Caller.

    Congratulations are due to friend-of-IJ Steve Hoersting, who, along with Dan Backer, Benjamin Barr, and the Center for Competitive Politics, just scored an early victory in Carey v. FEC, a challenge to federal campaign finance laws.

     

    For those who aren’t well-versed in campaign finance law, the legal issue in Carey is somewhat arcane; it concerns whether so-called “Super PACs” can establish separate bank accounts that will raise limited funds for the purpose of making contributions directly to political candidates. But even though the legal issue is complicated, the principle Carey vindicates couldn’t be simpler: The Federal Election Commission cannot simply ignore court rulings against it.

     

    NDPAC

    The fact is, this case never should have had to go to court in the first place. The plaintiffs, retired Adm. James J. Carey and the National Defense Political Action Committee, wanted to engage in activity that the D.C. Circuit Court of Appeals had already ruled was perfectly legal in a case called EMILY’s List v. FEC.

     

    But things are never that simple when you’re dealing with the FEC, whose business, as the U.S. Supreme Court has recognized, “is to censor.” The FEC refused to give Adm. Carey and his group permission to operate, leaving the court as their only alternative. This is a perfect illustration of what the Supreme Court was talking about in Citizens United v. FEC when it noted that federal campaign finance laws “function as the equivalent of prior restraint by giving the FEC power analogous to licensing laws implemented in 16th- and 17th-century England, laws and governmental practices of the sort the First Amendment was drawn to prohibit.”

     

    Lucky for Adm. Carey and NDPAC, Judge Rosemary Collyer of the D.C. District Court knocked this one out of the park. Judge Collyer thought the plaintiffs’ case was so strong that she granted them a preliminary injunction, which will prevent the government from enforcing the campaign finance laws against them and allow them to speak freely in the 2012 election while the case goes forward.

     

    Judge Collyer’s ruling is notable not just for reaching the correct result, but because it takes the FEC to task for its approach both to regulation and litigation. Her ruling describes the FEC’s unconvincing attempt to distinguish the EMILY’s List case as “plain wrong,” and is particularly critical of the FEC’s “questioning of Plaintiffs’ intentions,” which she concludes “does not well serve the agency or its argument.”

     

    All in all, a great way to kick off the case, which will hopefully move quickly to a final ruling on the merits. Congratulations again to all involved for their hard work.

     

    The full text of the Carey opinion is available here (.pdf).

    My colleague Steve Simpson has an excellent op-ed in today’s edition of The Wall Street Journal, discussing the prosecution of former Senator John Edwards for alleged campaign-finance violations.  Here’s a snippet:

     

    It seems that everyone other than the most devoted supporters of campaign-finance laws thinks that the Justice Department’s indictment of John Edwards is overkill. Mr. Edwards cheated on his wife while she was dying of cancer, then he used over $900,000 given by two campaign donors to cover it up. In the process, he paid off an aide to pretend that he was the father of Mr. Edwards’s love child. It’s behavior that would make even Anthony Weiner blush.

     

    But being a creep is not illegal. So why is any of this the government’s business?

     

    The short answer is that campaign-finance laws make it the government’s business. Those who are outraged at the Edwards indictment should take note that when we have laws that make helping candidates illegal, prosecutions like this are inevitable.

     

    Be sure to check out the whole thing.

    Cato Institute Senior Scholar and noted jazz critic Nat Hentoff makes the case for constitutional protection of anonymous speech:

     

    At her blog, Crossroads, CBS News Chief Legal Correspondent Jan Crawford is commenting on the issues discussed during Solicitor General Kagan’s confirmation hearings. In her most recent post, she offers a “Reality Check” in rebuttal to the assertion that Citizens United reversed over 100 years of precedent and was an example of the Roberts Court “cozying up to corporations.”

    During his opening statement yesterday at Solicitor General Kagan’s confirmation hearings, Senator Al Franken unsurprisingly took the opportunity to criticize the U.S. Supreme Court’s decision in Citizens United v. FEC. Arguing that the Motor Vehicle Safety Act and the Clean Air Act wouldn’t have passed if companies like General Motors and Standard Oil had been allowed to run ads right before election season against the politicians who supported that legislation, he concluded that:

     

    So here’s my point, General Kagan: Citizens United isn’t just about election law. It isn’t just about campaign finance.

     

    It’s about seat belts. It’s about clean air and clean water. It’s about energy policy and the rights of workers and investors. It’s about health care. It’s about our ability to pass laws that protect the American people even if it hurts the corporate bottom line.

     

    Put aside for a moment Senator Franken’s apparent belief—shared by other advocates of “campaign finance reform”—that the American people aren’t smart enough to hear corporations’ arguments on policy issues and then decide for themselves. (For my rebuttal of this ridiculous claim, click here.) Also put aside the fact that corporations hardly have a monolithic view on all of the issues he listed.

     

    The most important thing about Senator Franken’s statement is that it is a clear admission by him that he favors restrictions on corporations' speech because he does not like the policy results that their speech may produce. Presumably, if every corporation liked all the policies that he does, he’d be fine with them speaking as much as possible.

     

    Sorry, Senator Franken. The First Amendment doesn’t say, “Congress shall make no law . . . abridging the freedom of speech, except when Congress doesn’t like what the speaker has to say.”

    puppetmasterTom Bowden blogs at Voices for Reason about the many states that offer subsidies to filmmakers and the fact that those subsidies increasingly come with strings attached. Tom makes the quite sensible point that subsidies are a violation of taxpayers’ rights not to have to fund films at all, let alone those with which they might disagree.  

     

    But this should also remind us that when the government pays the piper, it gets to call the tune. We should keep that in mind as the challenge to Arizona’s misnamed “Clean Elections” Act makes its way to the U.S. Supreme Court next term. (The case is being litigated by the Institute for Justice and the Goldwater Institute, which will be filing petitions for review in the U.S. Supreme Court later this summer.)

     

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    In Citizens United v. FEC, the U.S. Supreme Court invalidated a major part of the Bipartisan Campaign Reform Act of 2002, also known as McCain-Feingold, which banned corporations and unions from running certain types of political advertisements close to elections.  Today the Supreme Court summarily rejected (.pdf) a challenge to another major part of McCain-Feingold, the so-called “soft-money ban,” which limits the amount of money that individuals may donate to political parties.  The case is Republican National Committee v. FEC, No. 09-1287.

     

    Lovers of liberty needn’t worry.  As Professor Rick Hasen notes, the Court’s one-sentence order does not signal a reversal of its recent trend in favor of greater protection for free speech and against campaign finance laws.  Challenges to McCain-Feingold are subject to a special procedure—the cases are tried before a three-judge panel, and the losing party has a direct right of appeal to the Supreme Court.  What this means in practice is that if the Court rejects the case, as it did here, that counts as a summary affirmance of the three-judge panel’s opinion.  Because the Court does not provide the reasoning for the summary affirmance, the ruling is not necessarily an endorsement of the lower court’s decision

     

    So what can we take away from the summary affirmance?  Not much.  We know that three Justices—Kennedy, Scalia, and Thomas—opposed the summary affirmance and would have had the case argued before the Court, presumably to reverse the lower court and strike down the soft money ban as it applied to the Republican National Committee.  Beyond that, the only take-away is that the soft-money ban has been granted at least a temporary reprieve.  But it will undoubtedly be subject to future challenges, and this summary affirmance does not foreclose the Court from holding the law unconstitutional in the next case to raise the issue.

     

    Additional commentary from our friends at the Center for Competitive Politics is available here.

    tall-stack-of-papersThere used to be a saying that a conservative is a liberal who has been mugged. On that theory, one might say that an opponent of campaign finance laws is, well, someone who has had to comply with them. It’s not a terribly principled reason to oppose the laws, perhaps, but we’ll take our converts where we can get them.

     

    Mickey Kaus, who just ran for office in California, might be a candidate for just such a conversion. On his blog, he quotes an FEC publication informing him that even though he lost, his campaign committee “must continue to file periodic reports after submitting a termination report until you receive Commission approval for termination.”

     

    Got that? You need FEC permission to stop being a committee. (God forbid the IRS gets wind of this. We all might need the government’s permission to die).

     

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    Money can’t buy you love.  Or an election, it turns out.

     

    A recent study that looks at self-funded candidates proves that “vanity candidacies” are just about as popular with the public as vanity books, vanity movies and other “look at me” projects.  In the past decade, self-funded candidates—i.e., those who raised more than half of all their campaign contributions from themselves or an immediate family member—have pumped more than $ 900 million into their own campaigns.  But despite these large amounts, self-financed candidates have prevailed only about 11 percent of the time.

     

    This study demonstrates two important things.  The first is that elections are not a contest of who has more cash; candidates and their views do in fact matter.  The second is that when candidates don’t have to raise funds from the electorate—either because they self-fund or get their campaign cash from the government—they are not subject to the discipline of the political marketplace.  So what you often end up with are maladroit candidates whose views often fail to reflect those of their would-be constituents

    Real Clear Politics has a remarkable video of Rep. Hank Johnson (D-GA) speaking out in support of the DISCLOSE Act.  According to Rep. Johnson, the law is necessary because, otherwise, “we will see more Republicans getting elected” in the wake of the Supreme Court’s decision in Citizens United v. FEC.

     

    It’s unusual to see an incumbent politician openly express his desire to use campaign finance regulation to stifle advocacy for his political opponents.  That sort of candor is usually reserved for closed-door meetings, like the one earlier this week at which DISCLOSE Act sponsor Rep. Chris Van Hollen (D-MD) is reported to have warned fellow Democrats that they “would find themselves in electoral trouble this fall should the bill not pass.”

     

    Between these comments and the recent NRA carve-out, if the DISCLOSE Act passes, the judges who decide the inevitable legal challenge should be appropriately skeptical of the sponsors’ supposedly lofty goals.  Respect for the First Amendment requires nothing less.

    In his concurring opinion in Doe v. Reed, Justice Scalia concludes:

     fedpapers

    Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed.  For my part, I do not look forward to a society which . . . campaigns anonymously [ ] and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism.  This does not resemble the Home of the Brave.

     

    Justice Scalia’s statement should shock any student of history.  Our “Home of the Brave” was birthed by anonymous pamphleteers such as Thomas Paine.  Indeed, our Constitution was ratified only after the anonymous “campaign” by Alexander Hamilton, John Jay and James Madison to sway voters through a series of essays known as The Federalist Papers, which were published in newspapers throughout New York under the pseudonym “Publius.”  Far from being protected from scrutiny, these essays engendered further anonymous campaigns by “Federal Farmer,” “Brutus,” “Cato” and “John DeWitt,” known today as The Anti-Federalist Papers—a campaign that resulted in our Bill of Rights.  Surely no one would suggest that these individuals lacked civic courage or that their endeavors doomed our democracy.  Why should the 137,000 citizens who signed a referendum petition to change state law be any different?

     

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    speechformeNow that the DISCLOSE Act has passed the House, it’s worth considering anew the NRA’s decision not to oppose the bill in exchange for an exemption for itself. Perhaps news of the demise of DISCLOSE was a bit premature.

     

    In a letter to The Washington Post, the NRA’s Chris Cox defends the group’s decision:

     

    It’s easy to say the NRA should put the Second Amendment at risk over a First Amendment principle to protect other organizations—unless you work for the NRA and are sworn to defend the Second Amendment above all else. The NRA cannot defend the Second Amendment without the ability to speak.

     

    But why would anyone defend the Second Amendment "above all else"?

     

    As both a gun owner and a staunch advocate of individual rights, I’m a big fan of the Second Amendment. But gun rights are important because all rights are important. Compromising on the protection of any rights ultimately destroys protections for all of them. We can’t pick a list of favored rights and jettison protections for all the others—not if we want them to be treated as rights, rather than mere privileges doled out to us or taken away from us at the whim of a government official.

     

    Unfortunately, that appears to be the NRA’s position—the First Amendment is expendable as long as we still have the Second. That’s both unprincipled and foolish, because without protections for free speech, we will end up losing all rights, including our right to keep and bear arms.

    After looking dead as a doornail as recently as one week ago, the unfortunately named “DISCLOSE Act” is showing signs of life. 

     

    Yesterday the United States House of Representatives passed the DISCLOSE Act by a vote of 219-206.  Although only two Republicans ultimately supported the measure, thirty-six Democrats voted “no.”

     

    Part of what spurred the DISCLOSE Act in the House was Senator Harry Reid’s promise that the Senate would take up the bill if it cleared the House.  Whether that turns out to be true, and whether the DISCLOSE Act can muster 60 “yes” votes in this tumultuous election season, is something that only time will tell.

     

    For more IJ analysis of the DISCLOSE Act, click here.

    Today, the U.S. Supreme Court released its opinion in Doe v. Reed, a case that asked whether thesupremecourt First Amendment prohibited Washington State from ever disclosing the names and addresses of those who signed a petition to get an issue on the ballot.  In an 8-1 decision, the Court ruled against that broad challenge while reserving judgment on whether the petitioners in the case—who had signed a petition that sought the repeal of a bill that expanded same-sex partnership rights—were entitled to an as-applied exemption from the disclosure requirements on the grounds that they were potentially subject to threats and harassment.

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    Imagine that a group of homeowners facing the threat of eminent domain for private development pools their money and takes out an ad in a local newspaper. The ad urges fellow citizens to tell their state representatives to vote for a bill that would stop such abuses statewide. Or imagine that a group of citizens concerned about government taxation and spending—or any other issue, for that matter—starts a website and a newsletter to inform others about pending legislation and spur them to contact legislators in advance of key votes. This is exactly the kind of citizen-to-citizen political speech about important issues of the day the First Amendment was intended to protect, right? 

     

    Yes, but in at least 36 states this speech may be illegal without first registering with the government and then detailing your ongoing political activities through periodic (and mind-numbingly complex) reports. University of Missouri economist Jeff Milyo explained the problems that regulation of so-called “grassroots lobbying” creates for ordinary citizens in a report published by the Institute for Justice, Mowing Down the Grassroots, and he’s guest-blogging on the topic this week at the Volokh Conspiracy

     

    IJ is challenging Washington’s restrictions on grassroots lobbying as a violation of the First Amendment. Prof. Milyo’s earlier research published by IJ examined how state laws create a thicket of red tape for people who want to speak out about issues on the ballot.

    The Supreme Court issued its opinion in Doe v. Reed today, holding that compelled disclosure of petition signatures must be analyzed under the First Amendment, but does not necessarily violate the First Amendment.  The Court remanded the case for further consideration.  The decision is 8-1 with Justice Thomas dissenting.  Several Justices filed concurring opinions.  We will have analysis of the opinion shortly.  The opinion is available here.

    Imagine if every time The New York Times published an editorial about politics, the government cut a check to the New York Post, the Daily News, and The Wall Street Journal so they could respond.  The Times would rightly condemn this policy for discouraging that paper from exercising its First Amendment rights.

     

    Nonetheless, the Times lauds Arizona’s so-called “Clean Elections” system, which does essentially the same thing to groups of citizens that merely want to speak about politics.  The Times also decries the U.S. Supreme Court’s decision to temporarily halt that system while the plaintiffs, represented by the Institute for Justice and the Goldwater Institute, ask the Court to review a decision of the Ninth U.S. Circuit Court of Appeals upholding that system.

     

    Under Arizona’s law, when people spend money to advocate for a political candidate, the state gives a check for an equal amount of money to each of that candidate’s government-funded opponents.  If there are three government-funded opponents lined up against a candidate who raises money through voluntary contributions—that’s three checks sent to the traditional candidate’s opponents.  This system violates the First Amendment—no less than the hypothetical newspaper law described above would—and the Supreme Court was right to temporarily freeze it.  The Court should follow up by taking the case for consideration next term and striking down Arizona’s bad “Clean Elections” law for good.

    Welcome to Congress Shall Make No Law, a complement to the Institute for Justice’s fight, both in courts of law and the court of public opinion, to defend the freedom of speech from government encroachments—particularly so-called “campaign finance” laws.

     

    masthead

    Freedom of speech is one of the most important rights Americans enjoy, yet one of the least understood and most neglected. Like the air that we breathe, speech is so integral to our lives and so ubiquitous—think twitter, Facebook, blogs, cell phones, and email and much more—that most Americans take it for granted.

     

    Yet we ignore the right to free speech at our peril. Indeed, it was not until 1931 that the Supreme Court first struck down a statute under the First Amendment, and the relatively vigorous legal protections our speech enjoys today have only existed for about 50 years.

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    When the U.S. Supreme Court stated in Citizens United censoredthat the FEC’s “business is to censor,” Justice Stevens protested in his dissent that this characterization was “nonsense” and “deeply disconcerting.” According to Justice Stevens, “[t]he FEC’s business is to administer and enforce the campaign finance laws.”

     

    So who’s right? Well, both.

     

    The FEC’s job is to enforce the campaign finance laws, but to do that, it has to censor speech. That is true whether or not the FEC is composed of a bunch of well-meaning bureaucrats who use smiley faces instead of “censored” stamps.

     

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    The NRA is rightly catching a lot of flack for dropping its opposition to the DISCLOSE Act on the condition that it is shielded from the law’s provisions. But, in truth, it was simply responding to the incentives provided by a political system in which it is accepted that the government can limit speech with so-called "campaign finance" laws. Limiting the overall amount of speech puts the government in position to ration speech. The result is a zero-sum game in which groups are left to duke it out in the political process in order to determine who gets how much of the speech pie.

     

    It’s no surprise that the victors will be those well-established powerful groups, like the NRA, that have the most political muscle. Smaller, less-established groups will inevitably lose out. (Remember that the next time someone tells you that "campaign finance reform" benefits the little guy.)

     

    Yes, it’s outrageous that the NRA sold out the latter groups in order to guarantee its government-apportioned allotment of speech. But it’s a predictable result of what happens when Congress—having eschewed a free market in speech—arrogates to itself the power to dole out those allotments. Yet another reason why the public should demand a return to the United States’ first, and still best, policy on speech: "Congress shall make no law . . . abridging the freedom of speech."

    It’s a sure bet that several of the Senators who sit on the Judiciary Committee will use Solicitor General Kagan’s confirmation hearing as a platform to continue attacking the Supreme Court’s decision in Citizens United v. FEC. For a primer on the top five myths promoted by the critics of this landmark victory for free speech—including the assertions that Citizens United is like Dred Scott and that it will allow corporations to "buy" our democracy—click here.

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