Congress Shall Make No Law...

    Over the weekend we blogged about Justice Ruth Bader Ginsburg’s statement regarding a stay issued by the U.S. Supreme Court in American Tradition Partnership, Inc. v. Bullock, the decision in which the Montana Supreme Court thumbed its nose at the ruling in Citizens United. Writing at the blog of the Center for Competitive Politics, friend of IJ Brad Smith has a great post taking down claims that Justice Ginsburg’s statement indicates that she is “ready to speak truth to power” when—as is widely expected—the Court takes the case. As Smith notes:


    Justice Ginsburg is a member of the Supreme Court of the United States. She is power. Truth? What truth was there in her little Western Tradition Partnership concurrence? Didn’t she just offer an opinion, slandering both donors and candidates, without any facts at all?


    Well said. The rest of Smith’s post is available here. And be sure to check out the rest of CCP’s blog, which provides consistently great coverage of campaign finance news from a pro-First Amendment perspective.

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    The U.S. Supreme Court has unanimously stayed the decision of the Montana Supreme Court in American Tradition Partnership, Inc. v. Bullock, in which the Montana court explicitly thumbed its nose at the U.S. Supreme Court and the Citizens United decision. The stay itself is not surprising—most assumed that the Court would stay the Montana court’s version of jury nullification and many expect the Supreme Court to summarily reverse the lower court.


    What is surprising, however, is the separate statement of Justice Ginsburg, joined by Justice Breyer (notably, Justices Sotomayor and Kagan did not join the separate statement). Justice Ginsburg urges the Court to grant certiorari and reexamine the Court’s conclusion in Citizens United that independent expenditures do not cause corruption “in light of the huge sums currently deployed to buy candidates’ allegiances.”


    What a cynical and insulting way to describe the activities of Americans, like IJ clients and David Keating, who use their resources to attempt to persuade their fellow citizens of the wisdom of their political view.


    Interestingly, Justice Ginsburg cites no source for this remarkable accusation and it is not clear if she means that all expenditures are designed to “buy candidates’ allegiances” or just some. Regardless, if Justice Ginsburg believes that people spend money in elections “to buy candidates’ allegiances” and not to persuade others that their political view is correct, then her view that the government should be able to throw people in prison for producing a film or book about politics finally makes sense. Fortunately, other justices on the Court have, for now, more respect for American voters, candidates, and political activists that Justices Ginsburg and Breyer.


    Perennial campaign-finance scold Fred Wertheimer from Democracy 21 has never seen a speech restriction he didn’t like.  So it comes as no surprise that Wertheimer recently published an opinion piece on declaring the Super PACs are, in his words, “a disaster for democracy” and an “unmitigated disaster.”  Why?  Well, because Super PACs let certain people speak more than Wertheimer likes.  So his proposed answer is to resurrect the long-dead DISCLOSE Act from the grave in order to get those disfavored speakers to shut up.



    In its most-recent incarnation, the DISCLOSE Act would force independent groups—whose speech does not raise any specter of corruption—to list their top five contributors in each advertisement. And it would require the head of those groups to appear on camera and say that their organization approved the message. If those provisions seem pointless because 1) Super PACs already disclose the identity of their contributors and 2) the group wouldn’t have put out the advertisement unless it agreed with its message, you’re right. The dirty secret of this DISCLOSE Act, like its predecessor, is that it’s not about information; it’s about chilling speech. As my colleague Paul Sherman previously noted, “For the reform lobby, the fact that some groups might stop speaking rather than comply with these new burdens is a feature, not a bug.”


    The chance that this newest speech-squelching legislation will become law is between slim and none, and slim just left town.  That’s a good thing; although Wertheimer complains that Super PACs let “a relatively few super-rich individuals and other wealthy interests to have greatly magnified and undue influence over the results of our elections,” that view betrays a fundamental misunderstanding of how elections actually work.


    The speech police see voters as empty vessels that candidates and groups can hoodwink and manipulate.  That condescending view of the American electorate, however, is just plain wrong.  Instead, the whole purpose of political campaigns is persuasion.  Candidates and groups can only present information and arguments to the public.  It is ultimately the voter who weighs that information and decides whom to cast a ballot for.  Super PACs help improve democracy by giving voters another source of information to consider.


    It’s odd to say that people can be made better off by limiting the voices they can hear from and consider, but that’s the argument that Wertheimer and his ilk make.  Fortunately for Americans, “[t]he First Amendment confirms the freedom to think for ourselves” and to hear from everyone, Super PACs included.

    In the world of public interest law, nothing is possible without clients who are willing to stand up for their rights against overwhelming odds. The Institute for Justice and the Center for Competitive Politics were privileged to have two such clients in Edward Crane and David Keating.


    Crane and Keating have a long history of fighting for free speech against burdensome campaign finance laws. Crane, the president of the Cato Institute, was one of the plaintiffs in Buckley v. Valeo, the seminal 1976 decision that struck down major portions of the Federal Election Campaign Act. And Keating, who has long had to navigate campaign finance laws as executive director of the Club for Growth, has recently been named president of the Center for Competitive Politics.


    freeing-speechnowBack in 2008, Crane, Keating and others teamed up to form, a group that wanted to raise and spend money to promote or oppose candidates based on their support for the First Amendment. Federal law prohibited them from doing so, so and its donors—represented by IJ and CCP—filed suit against the Federal Election Commission. The result was v. FEC, in which the D.C. Circuit Court of Appeals unanimously held that individuals and groups have a First Amendment right to pool unlimited amounts of money to spend on independent political speech. That ruling led directly to the creation of so-called “Super PACs.”


    Now, writing in The Wall Street Journal, Crane and Keating are stepping up to defend the results of that decision and the power it gives to grassroots groups to educate voters:


    [I]n Buckley [v. Valeo] the court ruled that individuals could spend unlimited amounts to support a federal candidate if those expenditures were not coordinated with the candidate's campaign. went further. It held that the First Amendment allows two, or four, or 400 or more individuals to pool their resources and exercise the same right to make independent expenditures that one individual could make under Buckley. Hence, Super PACs.


    Money is a proxy for information in campaigns. Yet Americans spend as much on potato chips as they do on all federal elections ($3.6 billion in 2010). Maybe that partly explains why most Americans cannot name their congressman, much less say where he or she stands on the issues.


    That's why we believe Super PACs are a good thing. In the recent Republican South Carolina primary, Super PACs reportedly outspent the candidates' campaigns by two to one. That means more information was available on the candidates and more interest in the campaigns has been generated. It could be argued that Super PACS are the reason the GOP primary campaign this year is a horse race and not a coronation.


    Subscribers to the Journal can read the whole thing here.

    The Seattle Post-Intelligencer’s Joel Connelly has a column bemoaning how political campaigns in America are conducted and laying the blame for what he sees as the poor state of things at the feet of the U.S. Supreme Court and the Citizens United decision. Almost everything he says in the article is wrong—even if one were to put aside his unsourced statement that one Super PAC has received $50 billion in contributions. (This would be quite the accomplishment as the total amount of political spending in all elections in 2012 at the federal, state, and local level is expected to be $5 billion.) Moreover, I do not recall him filing any stories about how well politics functioned when McCain-Feingold was robustly throttling political speech in the days prior to Citizens United.


    Coincidentally, Connelly’s piece came out the same day that Dan Abrams takes his fellow journalists to task for not understanding what Citizens United said and distorting its impact on elections. Abrams is no fan of the decision, but he does have an insight into the case that others do not: His father Floyd represented Mitch McConnell in the case. His insight leads him to take on those, like Connelly, that regurgitate what they hear others say about the case, regardless of whether it is accurate or not. His piece could have been written in response to Connelly’s column, but sadly, columns like Connelly’s have become the standard media analysis of the decision, not the exception.

    Roll Call columnist Eliza Newlin Carney, who coined the term "Super PAC," has written a column titled “Some Super PAC Money Untraceable.”  The column discusses the findings of a report titled “Auctioning Democracy,” released by Demos and the U.S. PIRG Education Fund.


    As Carney reports, “Since 2010, 6.4 percent of the itemized contributions underwriting super PACs could not be traced to their original source, the report found.”


    Wait a minute . . . this is the torrent of secret money we keep hearing about?


    It seems to us that the really newsworthy thing about the Demos/PIRG study is that, for all the “reform” lobby’s complaining about secret money in politics, a full 93.6% of itemized contributions to Super PACs can be traced back to their original source.

    Washington Post columnist E.J. Dionne has been complaining about Citizens United v. FEC since before Citizens United was decided. In his latest attack on that ruling, Dionne argues that the decision doesn’t work “if you think we are a democracy and not a plutocracy.”  As famed First Amendment lawyer Floyd Abrams notes in a response, much of Dionne’s critique is based on false factual premises.


    There is, however, another, more fundamental problem with Dionne’s critique. Like so many critics of Citizens United, Dionne largely ignores the intermediate step between political spending and electoral results:  voting.


    Citizens United freed corporations and unions to spend money on political speech.  A later ruling, v. FEC—litigated by the Institute for Justice and the Center for Competitive Politics—freed individuals and groups to form Super PACs to do the same thing.  But neither ruling freed anyone to buy votes.  The most corporations, unions, or Super PACs can do is attempt to persuade American voters.


    Dionne apparently believes that voters should be spared from hearing Super PACs’ speech.  But that sort of paternalism is precisely what the First Amendment forbids.  As the Court noted in Citizens United, “The First Amendment confirms the freedom to think for ourselves.”

    On Monday night, President Barack Obama announced that he is giving his blessing to Priorities USA, a Super PAC supporting his reelection.  Campaign manager Jim Messina, writing at the Obama campaign’s official blog in a post titled “We Will Not Play by Two Sets of Rules,” declares that the change in position is a necessary response to Republican-favoring Super PACs.  Thus, even though the president supports a constitutional amendment to allow for “reasonable limits” on campaign spending, winning reelection has to come first.


    If this sounds familiar that’s because four years ago the Obama campaign issued a nearly identical apologia for the then-Senator’s decision to renege on a promise to take part in the presidential public-financing system.  Then, as now, it was presented as a choice forced upon the campaign; he didn’t want to do it, but had to because the other side was “gaming” a “broken” system of regulations.


    Such excuses are commonplace.  Self-styled “reformers” claim they have to work within the system to change the system.  But these excuses expose the hollowness of the arguments for stricter limits on campaign finance.


    The theory behind campaign finance limits is that political spending causes corruption.  But there is no evidence to support this belief and good reason to believe that both political spending and corruption are driven by excessive government power.  Indeed, the response to the President’s change in position reveals that even the reform lobby doesn’t believe that political spending corrupts everybodyThe New York Times criticized the President’s decision as a betrayal of his stated principles, but made no suggestion that the President is personally more corrupt because of it.  Ditto Common Cause, which called the move merely “disappointing.”  Ditto Thomas Mann of the Brookings Institution, who described the move as “regrettable” but “inevitable.”


    It seems that many people believe that the President is guilty, at most, of hypocrisy.  Perhaps they believe that the only candidates who are actually corrupted by money in politics are those who don’t think it’s appropriate for the government to ban or otherwise restrict peaceful political speech and association.  But that is not a serious account of political corruption—it’s just cheerleading for one’s preferred side of the political debate.


    For our part, we don’t object to President Obama encouraging people to give to Super PACs supporting his reelection.  Nor do we believe that his decision to do so makes him any more or less corrupt.  What we do object to is the apparent belief by some that a political candidate can demonstrate integrity by promising to ban other people’s political expression once elected.

    Most of the popular arguments against the U.S. Supreme Court’s ruling in Citizens United v. FEC boil down to two sound bites: “Money isn’t speech” and “Corporations aren’t people.” Both of these statements are obviously true. But neither has anything to do with whether political spending—even spending by corporations—is protected by the First Amendment.


    IJ has made these points many times, but we’re not alone. Writing yesterday in the Huffington Post, law professor Geoffrey Stone explains why it doesn’t matter that money isn’t speech:


    Even though an object may not itself be speech, if the government regulates it because it is being used to enable free speech it necessarily raises a First Amendment issue. Thus, a law that prohibits political candidates to spend money to pay for the cost of printing leaflets, or that forbids individuals to contribute to their favorite political candidates to enable them to buy airtime to communicate their messages, directly implicates the First Amendment. Such laws raise First Amendment questions, not because money is speech, but because the purpose of the expenditure or contribution is to facilitate expression.


    Similarly, last month, law professor Kent Greenfield wrote an excellent takedown of the “corporations aren’t people” meme:


    Citizens United did not hold corporations to be persons, and the court has never said corporations deserve all the constitutional rights of humans. The Fifth Amendment’s right to be free from self-incrimination, for example, does not extend to corporations.


    In fact, saying corporations are not persons is as irrelevant to constitutional analysis as saying that Tom Brady does not putt well in handicapping the NFL playoffs. The Constitution protects the rights of various groups and institutions — whether Planned Parenthood, Bob Jones University or the AFL-CIO — though they are not “natural persons.”


    Neither of these professors appears to be a fan of the result in Citizens United. Nevertheless, they recognize—as any honest critic must—that the most popular arguments against that ruling are empty slogans. We hope that other critics of Citizens United will follow their lead.

    Slate’s U.S. Supreme Court commentator Dahlia Lithwick has written a paean to Stephen Colbert and his satirical Super PAC, Americans for a Better Tomorrow, Tomorrow.  As Lithwick sees it, the members of the Citizens United majority are getting their just deserts, as Colbert uses his Super PAC to attack a decision that contributed to the creation of Super PACs.


    But there’s a problem with Lithwick’s narrative:  Virtually everything Stephen Colbert is doing was legal before Citizens United.


    ColbertAlthough Colbert has often used the phrase “unlimited corporate money” in reference to his Super PAC, last Tuesday’s disclosures paint a very different picture.  Colbert’s PAC, which raised more than $825,000 through the end of the year, has raised almost no corporate money.  Indeed, the only two corporate donations he reported to the Federal Election Commission amount to $714, total.  In addition to barely raising any corporate money, Colbert’s Super PAC accepted only one contribution from an individual (of $9,600) in excess of the $5,000 limit that applies to regular PACs.


    In other words, more than 99% of the money Colbert has raised to mock Citizens United and Super PACs is money that has been legal under the campaign finance laws for decades.


    So what are the real lessons to be learned from Colbert’s surprisingly un-Super PAC?


    Perhaps the most obvious is that campaign finance laws are rarely a hindrance for people with television shows espousing political messages that are already popular.  Those people already have the ability to get their message out to a national audience.  Political upstarts or outsiders—the real beneficiaries of the rulings in Citizens United and v. FEC—don’t have that option.


    But another lesson—or perhaps more of a sad reminder—is that free speech will never want for critics.  There will always be those who use their free speech rights to advocate that others’ be restricted.  And it is surely their right to do so.  But such people aren’t—as Colbert and Lithwick seem to believe—cleverly using the tools of the Machine to attack the Machine.  They’re simply advocating censorship for speech they disagree with, and weakening the basis of their own rights in the process.


    Image source: MHimmelrich

    Last Tuesday, many so-called “Super PACs” for the first time disclosed their donors to the Federal Election Commission. But as proponents of campaign finance laws savor this newly released data—and whinge over how long it took for them to get it—here’s one thing you won’t hear them admit: We would have had this information weeks ago if our campaign finance laws were less strict.


    Surprised? Don’t be. It’s just the latest example of the unintended consequences of the reform lobby’s zeal for ever-greater regulation of political speech. To understand how it happened, it helps to know a bit about the history of Super PACs.


    Although the media commonly associates Super PACs with the U.S. Supreme Court's decision in Citizens United v. FEC, that decision is only indirectly related to the rise of Super PACs. Citizens United freed corporations and unions to spend on their own. But even after that decision, individuals and groups were still limited in their ability to pool money to spend on political speech.


    freeing-speechnowIt wasn’t until the D.C. Circuit Court of Appeals decided a case called v. FEC that individuals and groups were permitted to pool money in unlimited amounts to spend on political speech. As the D.C. Circuit recognized in that case, if a wealthy individual or a corporation acting alone is permitted to spend an unlimited amount on political speech, it makes no sense to limit the amount that individuals and other groups can pool together to spend on political speech.


    But the D.C. Circuit also did something else: It held that groups that pool money to spend on independent political speech may be required to speak through heavily regulated political committees (or PACs). Reformers cheered this portion of the ruling because PACs are the most heavily regulated groups under federal campaign finance law. The Campaign Legal Center—the pro-regulation group run by Stephen Colbert’s personal lawyer, Trevor Potter—called it “a victory for disclosure.”


    It turns out to have been a Pyrrhic victory.


    The reform lobby ignored the fact that PACs, while heavily regulated, disclose their donors on a preset schedule. The plaintiffs in the case had argued that they should be subject to the less stringent regulations that apply to groups other than PACs. Those groups, however, are required to disclose their donors within 48 hours of spending $10,000 or more on political ads (and within 24 hours if it’s less than 20 days before a primary or general election).


    In other words, we could have known all along who was giving to Super PACs if the reform lobby and the Federal Election Commission, driven by a mantra that “more regulation is always better,” hadn’t turned their noses up at the offer.


    None of this is to endorse the idea that contributions to Super PACs should necessarily be disclosed. The First Amendment protects the right to engage in anonymous speech, and people who get together to engage in independent political speech should, ideally, be allowed disclose as much or as little about their donors’ identities as they like. But it’s a great example of how the reform lobby’s tactics invariably focus, first, on making it difficult to put spend money on political speech, with all other considerations being secondary.


    In light of this, there are good reasons to be skeptical of their efforts to revive last year’s failed DISCLOSE Act, which would impose extensive new disclosure requirements on Super PACs and nonprofit organizations. For the reform lobby, the fact that some groups might stop speaking rather than comply with these new burdens is a feature, not a bug.

    An update to yesterday’s post concerning Public Campaign Action Fund’s manufactured scandal in Wisconsin.  The Washington Post has a copy of PCAF’s letter demanding an investigation of Gov. Scott Walker.  In addition to the charge of attempted coordination (which we debunked yesterday), the letter also charges Gov. Walker with illegally soliciting political contributions using state facilities.



    Just like PCAF’s coordination charge, this charge is also fatally flawed.  First, it is extremely doubtful that Gov. Walker’s request for messages “[r]einforcing why [proposed legislation concerning unions] was a good thing to do for the economy, a good thing to do for the state,” could be considered a solicitation for “political purposes” under Wisconsin Law, because the requested messages do not pertain to an election or a candidate.  If PCAF were correct, it would mean that it is illegal for legislators to use their office resources to promote legislation, merely because doing to might produce electoral benefits for the legislator or his colleagues.  That reading of the law cannot be right because it would essentially outlaw politics


    But even if we accepted this absurd interpretation of the law, PCAF’s claim would still fail because, again, Gov. Walker was talking with a prank caller, not David Koch.  This means that, at most, his statements would be an attempt to solicit candidate support using public resources.  But this is not illegal under Wisconsin law.  Actually soliciting candidate support using public resources is a misdemeanor and, like almost all misdemeanors, is exempt from Wisconsin’s criminal-attempt law.  Wis. Stat. § 939.32.  In other words, in Wisconsin there is no such crime as attempting to solicit candidate support using public resources.


    Once again, this is something that PCAF could easily have discovered if they had bothered to read Wisconsin’s laws before leveling their frivolous allegations.  But when your main interest is using campaign finance laws for partisan advantage, why bother with details.

    Update: Click here to read about Public Campaign Action Fund's latest frivolous charges against Wisconsin Gov. Scott Walker.


    As if one needed further evidence that the primary beneficiaries of campaign finance laws are the political operatives who try to use them for partisan advantage, Public Campaign Action Fund has accused Wisconsin Gov. Scott Walker of illegal campaign “coordination” based on statements he made during a prank call by a blogger posing as libertarian political activist David Koch.



    This claim is nonsense on every possible level.  First, Governor Walker wasn’t actually talking to David Koch.  Even if he had been, his statements did not meet the legal definition of coordination.  And, most importantly, coordination is not illegal.


    Before going into detail on these points, first we need to explain what this charge actually means.


    “Coordination” is campaign-finance jargon for expenditures that are prearranged between a candidate and another person who wants to help that candidate’s election campaign.  So, for example, if Candidate A asks Group B to run television advertisements supporting his campaign, and Group B does so, that would be considered a coordinated expenditure.  Coordinated expenditures are not illegal, but they are usually subject to the same limits as direct contributions to the candidate, under the theory that there is no practical difference between giving a candidate the money to run advertisements himself or directly paying for those advertisements at the candidate’s request.


    Public Campaign Action Fund claims that the following exchange from the prank call may have constituted illegal coordination:


    Gov. Walker: “After this in some of the coming days and weeks ahead, particularly in some of these more swing areas, a lot of these guys are going to need . . . they don’t need initially ads for them, but they’re going to need a message out.  Reinforcing why this was a good thing to do for the economy, a good thing to do for the state.  So to the extent that message is out over and over again is certainly a good thing.”


    Ian Murphy (posing as David Koch): “Right, right.  We’ll back you any way we can.”


    So is this illegal?  No, as Public Campaign Action Fund could easily have discovered if they had taken a few moments to read the relevant Wisconsin regulations (.pdf) instead of dashing off press releases while, by their own admission, still “in discussions with election experts on whether Gov. Walker may have broken state election law and whether a complaint should be filed.”


    Washington state has a budget deficit of more than half-a-billion dollars and significant structural problems that will likely leave it lurching from fiscal crisis to fiscal crisis in the coming years. In the midst of these problems, legislators in Olympia are making the tough decisions. Besides designating a state rock (Tenino quarry sandstone—obviously the work of big-money Tenino quarry sandstone interests), certain legislators also want to pressure Congress to repeal the First Amendment.washington


    Senate Joint Memorial 8007 requests Congress to pass an amendment declaring that corporations are not persons so that their speech can be restricted.The reason, according to the Memorialists, is that corporations cannot vote and therefore should not be protected by the First Amendment. But disenfranchised convicts, resident aliens, and minors cannot vote either. Do the Memorialists believe that, under a correct interpretation of the First Amendment, the government can pass laws making it a crime for an ex-convict to give a speech or write a book? Sorry, Malcolm X, Angela Davis, and William S. Burroughs, you’re all under arrest—again.


    Of course, the goal here is to overturn the U.S. Supreme Court’s decision in Citizens United v. FEC, but under a plain meaning of such an amendment, Congress and state and local governments could also deprive organizations like the Sierra Club and the American Civil Liberties Union from the protections of the Third, Fourth, and Fifth Amendments, as well as the First Amendment. Thus, if passed, the government could quarter soldiers in the headquarters of Common Cause and search the offices of without a warrant.


    The details of the proposed amendment are ultimately irrelevant, as repealing the First Amendment is unlikely in the near future and this is little more than a time-consuming bit of political theater paid for by Washington taxpayers. Nonetheless, the taxpayers should welcome it—it keeps the proponents of this law from causing mischief with other legislation.


    On his website, Senator Adam Kline, the chief sponsor of the Memorial, closes his biography by saying, “Political action is good for you.” He forgets to add, “unless you incorporate.” Then Senator Kline thinks political action ought to land you in prison.

    PaperworkThere’s a piece at Campus Progress, an effort of the Center for American Progress, praising the efforts of young 20-something progressives who run for office, and profiling a few candidates who have run races against established politicians.  The funny thing to me about the article is that it fails to discuss these young people filling-out campaign finance paperwork while running for office.  The only reference it makes to campaign finance laws at all is in praising Connecticut’s public financing system (which, as readers of this blog may know, the Second Circuit found largely unconstitutional last year).  The article acknowledges there are many burdens in campaigning, but implies that when it comes to campaign finance this only falls on the fundraising side: “While their youth provides them with flexibility and a fresh viewpoint, college students still face significant barriers when it comes to asking for votes and, sometimes more important, asking for financial contributions.”


    I can attest from personal experience that when you run for office, particularly when you only have a handful of inexperienced people helping you, complying with campaign finance paperwork is a confusing hassle, and often a nightmare.  While a college senior in 1997, I ran for St. Paul City Council as basically a paper candidate (I barely campaigned and spent very little money; perhaps just over $100).  Even then there were multiple forms I had to fill out, sign, and file.  To this day I have no idea if I completely them correctly, although as IJ has demonstrated there’s a good chance that despite my efforts I broke the law in some way.


    Perhaps the candidates Campus Progress profiles did not have these troubles because they were helped by friendly organizations with time and resources to help them get their paperwork in order.  But that’s the whole point.  For citizens running for office that don’t have that kind of assistance—whether they’re young or old—campaign finance laws take away from the time they could be campaigning and may discourage them from running at all.


    ImageSource: luxomedia

    More than a year after the U.S. Supreme Court’s ruling in Citizens United, attacks on that historic ruling just keep coming.  The latest comes from a group called, which has submitted a complaint (.pdf) to the D.C. Bar arguing that Justice Clarence Thomas should have recused himself from the case.


    The reason?

  claims that Justice Thomas’ recusal was required under the Supreme Court’s recent ruling in Caperton v. A.T. Massey Coal Co., 129 S. Ct. 2252 (2009), because, in 1991, Citizens United spent $100,000 on ads independently urging the Senate to confirm Justice Thomas to the bench.


    Put bluntly, this is crazy.


    Caperton dealt with an elected justice of the West Virginia Supreme Court, whose campaign had benefited from millions of dollars in independent expenditures by a litigant who had a multi-million-dollar case on its way to the state supreme court within a matter of months.  The U.S. Supreme Court held that the elected judge should have recused himself, because the extraordinary events of that case created the “probability of actual bias.”


    Even assuming that the reasoning of Caperton could apply to federal judges—who have life tenure and no incentive to repay favors—there is absolutely no way that Caperton would have required Justice Thomas to recuse in Citizens United.  The situation in Caperton was, in the Court’s words, “extreme by any measure,” and the ruling was “thus . . . confined to rare instances” that created the “probability of actual bias.”


    Only someone with an ideological axe to grind could make the groundless accusation that Justice Thomas should have recused himself in Citizens United.  No intellectually honest person could believe that Thomas voted the way he did in Citizens United because, 20 years ago, Citizens United said nice things about him in a television ad.  And no intellectually honest person could believe that Thomas would have voted differently if the petitioner had been some other nonprofit, and not Citizens United.  Those who make claims to the contrary never really hope to win; their only goal is character assassination.  They and their empty efforts should be called out.


    During Justice Thomas’ service on the Supreme Court, there have been 10 major campaign finance cases.  In every one of those cases, Justice Thomas has voted against regulation and in favor of free speech, often writing separately to explain why, in his opinion, the entire enterprise of campaign finance regulation is unconstitutional.


    Justice Thomas’ unbroken voting record over 20 years shows only one bias, and that is in favor of free speech and the First Amendment.  We should applaud this bias in Justice Thomas and hope for as much in all our judges.

    Astute readers of this blog will note that its name is “Congress Shall Make No Law,” not “Parliament Shall Make No Law.” A story from Canada, however, teaches important lessons about how regulation can strangle basic human rights like the right to freely speak or peaceably assemble.


    As described in the FrumForum, municipal regulations and enormous fines threatened to shut down the Liberty Summer Seminar, a libertarian Woodstock that takes place every summer on the farm of Peter Jaworski and his parents, Marta and Lech, in Ontario, Canada. Ironically, a peaceful gathering of freedom-minded folks from across North America faced extinction because municipal bureaucrats kept piling regulatory requirements on the hosts.


    Enter the Canadian Constitution Foundation, a group which is bringing strategic litigation for liberty in Canada, particularly those rights enshrined in the Canadian Charter of Rights and Freedoms. The CCF argued to the Municipality of Clarington that its efforts to regulate the Liberty Summer Seminar into the ground violated the Charter’s guarantee of the “freedom of peaceful assembly.” As the FrumForum’s Tim Mak reports today, the Municipality has backed off and specifically recognized “their use of the property was purely for the purpose of a peaceful assembly and expressive activity.”




    The CCF’s efforts represent a great victory for some wonderful people and demonstrate the emergence of a new and powerful voice for freedom in Canadian courtrooms. But we in America should not feel immune from this kind of overbearing government. When the government has the power to regulate so much of our daily lives, it should come as no surprise that it will use this power to burden our fundamental political rights, including the right to discuss what is wrong with the government. The ability of a municipality to use its sign code to stop protests of its eminent domain policies is precisely the issue my colleague Michael Bindas will be arguing on Wednesday, February 16, to the Eighth Circuit Court of Appeals in St. Louis.


    The rights protected by the Canadian Charter and the U.S. Constitution require those, like the Jaworskis and IJ client Jim Roos, willing to stand up for freedom. It’s good to see that kind of courage on both sides of the 49th Parallel.  


    Image Source:  CuppoJoe




    If it could, the ginormous publicity machine backing Justin Bieber would have never let this happen.









    Image source: jake.auzzie’s photostream






    Wendy Kaminer explains why over at the Atlantic.

    New York Times columnist Adam Liptak has penned a thoughtful column on the meaning of the First Amendment’s protection for freedom of “the press” and its application to corporations.  Some critics of the Supreme Court’s ruling in Citizens United argue that the institutional press—unlike other corporations—enjoys special protection under the First Amendment, but as Liptak correctly notes


    [T]he argument is weak. There is a little evidence that the drafters of the First Amendment meant to single out a set of businesses for special protection. Nor is there much support for that idea in the Supreme Court’s decisions, which have rejected the argument that the institutional press has rights beyond those of the other speakers.


    There is a practical problem, too, especially in the Internet era. Who, after all, is “the press”? Anyone with a Twitter account?


    Read the whole thing.


    Hat tip to Chaim Gordon.

    The sports world is abuzz with the news that Daniel Snyder has filed a defamation lawsuit against the Washington City Paper because he is upset that it has been critical of his tenure as owner of the Washington Redskins.


    In particular, he’s mad about a recent article in the paper that, in the words of Washington Post columnist Gene Weingarten, described him as


    an avaricious, imperious, conscienceless plutocrat with callous contempt for the fans; a man whose Napoleonic, pouter-pigeon swagger conceals a doofus-like understanding of the game and whose pernicious, autocratic meddling has consigned the team to perpetual mediocrity and its players and coaches to a perennial state of harrowing anxiety, all of this starting virtually from the moment [he] arrived and continuing to this very minute.


    The overwhelming response to the lawsuit seems to be that Mr. Snyder should be flagged for acting like a thin-skinned bully.


    But I disagree. All the naysayers are missing the point. They should instead see the lawsuit for what it really is: a valiant stand against the evils of corporate speech. After all, the City Paper is owned and published by a corporation, Creative Loafing, Inc. And that corporation is owned by a private equity firm that no doubt has investments in other, perhaps even more nefarious corporations.  


    By filing his lawsuit, Mr. Snyder is standing up for the little guy against the power of corporations, which—as we have been constantly reminded by critics of the Supreme Court’s decision in Citizens United v. FEC—shouldn’t have any First Amendment rights because they aren’t real people.


    Creative Loafing has clearly used financial resources that normal folks don’t have access to in order to write, print, and distribute a story that has unduly influenced the public into believing Mr. Snyder is a humorless dweeb. The only reason his message—that he’s a competent NFL owner and not a total jerk—hasn’t gotten through to the public is because it’s been drowned out, not only by Creative Loafing, but also by bigger corporate-owned media outlets like the Washington Post (see above) and ESPN.  


    We can only hope that he’ll attempt to shut up these and other corporations soon, including those that try to influence Americans about things that are almost as important as football (e.g., elections). Because unless we are going to surrender control of public debate to faceless, soulless corporations, we’ll need heroes like Mr. Snyder to protect us from them. (I mean, he’s got to win at something, right?)


    [Update: Yes, this post is intended to be satirical.  (See my comment below.)]


    Image source: Ed Yourdon

    On January 28, a federal judge in Maryland handed down a ruling that neatly illustrates how far the U.S. Supreme Court’s precedent has drifted from the idea that political speech is at the core of what the First Amendment was intended to protect.


    The case, O’Brien v. City of Baltimore, involved a challenge by a Catholic-based crisis-pregnancy center to a Baltimore ordinance that would have required them to put up a sign in their lobby stating that the center “does not provide or make referral for abortion or birth-control services.”  Because the First Amendment protects not just the right to speak but also the right to choose what one will say, the center objected to the ordinance on the grounds that it unconstitutionally compelled them to speak.


    The district court in O’Brien correctly concluded that the required disclaimer was compelled speech and that the ordinance must be subject to the highest level of judicial scrutiny, known as “strict scrutiny.”  The court went on to hold that the law failed strict scrutiny because the government’s alleged interest in combating “deceptive advertising” by crisis-pregnancy centers could have been achieved by simply modifying the city’s existing anti-fraud statute, without compelling the centers to convey a message they would prefer not to convey.


    So far so good—except for the fact that the Supreme Court has upheld disclaimers in the campaign finance context for ads that support or oppose candidates.  The district court in O’Brien recognized this and was forced to explicitly distinguish disclaimers in the campaign context from those at issue in the case.  Here’s what the court said:


    Strict scrutiny review is a standard traditionally used when examining regulations of fully protected speech rather than the ‘exacting scrutiny’ standard described in Citizens United v. Fed Election Comm’n.,__ U.S. __, 130 S. Ct. 876 (2010) (addressing a First Amendment Challenge to political campaign laws).


    In short, speech about a crisis-pregnancy center is “fully protected” under the First Amendment, but speech about candidates is not.  The Framers gave us the First Amendment specifically to allow citizens to, among other things, talk about and criticize their government.  Yet three decades of campaign finance decisions have forced a district court to have to say, in effect, “Unlike political speech, the speech at issue here is entitled to significant First Amendment protection.”  Nonetheless, decisions like the one in O’Brien are important—by exposing the contradictions between our First Amendment rhetoric and our First Amendment as enforced by the courts, it lays bare how far we have drifted from first principles.  And that is the first step to restoring those principles.


    Hat tip to The Volokh Conspiracy.


    The full text of the O'Brien ruling is available below the break.