Congress Shall Make No Law...

    Peter Nelson, director of public policy at the Center for the American Experiment in Minneapolis, had a great oped on the costs of disclosure in the Minneapolis Star Tribune last week.  Be sure to check it out.  Here’s a taste:

     

    In my election law seminar in law school, I recall an interesting discussion on the impact of disclosure on professors. Whether the threat to their job is real or perceived, politically conservative professors tend to hide their beliefs until they get tenure. Disclosure, of course, compromises their right to keep their politics private. The Supreme Court has protected groups like the NAACP when there was a reasonable probability of threats and harassment.

     

    The burden of disclosure on First Amendment rights is even greater when tied to a single, controversial issue on a ballot. It's one thing to be linked to the beliefs of a candidate or a party when no one expects agreement down the line; it's quite another thing to be tied to a single issue where there is no question about your position.

     

    For what it’s worth, I was in that election law seminar with Peter, and it was a very interesting discussion.  There seemed to be a feeling, even among some more liberal participants, that in an age when you can know someone’s political contributions through a Google search, disclosure truly can chill a person’s speech.

    On Monday the Institute for Justice filed a friend-of-the-court brief urging the U.S. Supreme Court to grant review in Bluman v. FEC. As Make No Law readers may recall, Bluman is a First Amendment challenge to a federal law that prohibits noncitizens—except for those classified as “permanent residents”—from making political contributions or spending any money to support or oppose political candidates. Despite the fact that the Supreme Court in Citizens United v. FEC held that speech restrictions based on the identity of the speaker are unconstitutional, in August a three-judge panel upheld the law as a permissible means of preventing “foreign influence” on American politics. Last month, the attorneys for the plaintiffs asked the Supreme Court to review the case.

     

    bluman_groupBluman is a fascinating and important case that absolutely merits review by the Supreme Court. As we argue in our brief, the law at issue is unconstitutional as applied to aliens like the plaintiffs, a Canadian lawyer and a Canadian-Israeli doctor, both of whom lawfully reside in the United States.  Simply put, individuals who are lawfully within the United States should enjoy the full protection of the First Amendment.  This means that, like Americans and permanent residents, they presumptively enjoy the right to spend money on political speech and even make political contributions.

     

    Under well-established First Amendment principles, the government can only overcome this presumption if it can prove that its restriction on speech by non-permanent-resident aliens satisfies “strict scrutiny,” the highest level of judicial review.  Strict scrutiny requires the government to come forward with genuine evidence that the speech it seeks to restrict is harming some interest the government is charged with protecting and that it is restricting no more speech than necessary to address that harm.  The government didn’t do that in this case, therefore the law is unconstitutional.

     

    As we argue in our brief, there is no reason to depart from these well-established First Amendment principles simply because the speakers in this case were not born in the United States. To understand why, it helps to first recognize that we already live in a world where “foreign influence” on American politics happens all the time, and we are none the worse for it. For example:

     

    -Under the Foreign Agents Registration Act, foreigners—and even foreign governments—are permitted to spend unlimited amounts of money directly lobbying elected officials, and have been for decades;

     

    -Foreigners, even those living abroad, are permitted to make unlimited “in-kind” contributions of volunteer services to political candidates, even if the value of those services is significantly greater than the legal limit for monetary contributions, as when Elton John volunteered as a performer at an event that raised $2.5 million for then-Senator Hillary Clinton’s presidential campaign; and

     

    -Foreign-owned magazines and newspapers—like the British-owned weekly magazine, The Economist, which has a U.S. circulation of over 760,000—routinely advocate the defeat or election of American political candidates through editorial endorsements.

     

    These types of “foreign influence” on American politics have been tolerated for decades, and for good reason: It’s all just political speech and association. Democracy isn’t imperiled by too much political speech. To the contrary, political markets, like economic markets, function better when decision-makers (in this case, voters) are permitted to acquire information from diverse sources.

     

    More fundamentally, the First Amendment doesn’t protect speech merely because it may advance “democracy” or be useful to voters during elections.  It protects speech because freedom is good, and because the right to speak freely and associate with others for peaceful political purposes is an inherent natural right that belongs to all people.  Not every country recognizes that right—and even fewer protect it robustly—but the United States does.  That’s why the government can only restrict speech if it can prove that speech is harmful.  And that's why the Supreme Court should grant review in Bluman and reaffirm that there is no exception to this foundational principle for campaign finance laws.

     

    The full text of IJ’s amicus brief in Bluman v. FEC is available below the fold.

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    Read all about it in her new column in Fortune.

    Over at Reason Katherine Mangu-Ward takes a look at “Secret Money from God Knows Where” and notes that perhaps the biggest upside to come from the increased independent money (read: “speech”) in this year’s election is increased competition against the established power structures of the two major parties:

     

    One upshot of increased spending by interest groups could be a reduction in the power major parties hold over candidates. Normally, when a question of party discipline looms in the House or Senate, savvy incumbents allowed themselves to be whipped into shape, afraid of getting checkbook slapped by party bosses. According to The Washington Post, a third of all independent expenditures reported to the Federal Election Commission this year comes from the two major parties, compared to 54 percent in 2008 and 80 percent in previous cycles.

     

    More evidence that although many leaders of the political establishment decry Citizens United as taking power from the people, their real concern is that it's taking power from them.

    So complicated that even the government doesn’t understand them. guy-wrapped-in-red-tape

     

    As remarkable as that conclusion may sound, my colleague Robert Frommer has a piece in the Denver Post demonstrating exactly that.

     

    The piece tells the story of “Clear the Bench,” an independent grassroots organization that came together to oppose the retention of four Colorado Supreme Court justices.  The group tried in good faith to comply with the campaign finance laws, and even asked the agency charged with enforcing those laws what it was supposed to do.  Nevertheless, when Clear the Bench spoke out, they found themselves hauled into court by their political opponents, charged with failing to register as the proper kind of political committee.  Ultimately, after a year and a half of litigation, a court agreed, and gave Clear the Bench 20 days to register as the correct kind of committee.

     

    The problem?  As Frommer notes:

     

    The court’s ruling was wrong.

     

    Clear the Bench wants to independently advocate against the retention of certain Colorado Supreme Court justices. Under Colorado law, the group should be an independent expenditure committee, which, unlike a standard political committee, does not have contribution limits. But no one involved in this dispute—not Clear the Bench, its accusers, or even Colorado campaign finance officials or the special administrative court—understood this.

     

    The fact that something like this could happen in any area of the law is frightening enough.  But something is particularly wrong when the laws regulating political speech are so complicated that everyone involved in a legal dispute—lawyers, elections officials, and judges—fails to understand them.

     

    Proponents of campaign finance laws are generally quick to denigrate or dismiss as alarmist arguments that the regulation of political speech regarding elections will lead the country down a slippery slope in which the government will eventually seek to control all—or at least the vast majority of—political speech.

     

    As ESPN’s Lee Corso might respond to these denials of the existence of such a slippery slope, “Not so fast, my friend!”

     

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    October
    20
    2:14 PM

    On Monday, my colleague Paul Sherman argued a motion for temporary injunction in a case we filed in Florida recently challenging PAC requirements that are imposed on groups that want to join together to speak out for and against ballot initiatives. Under the law, when two or more people join together to spend more than $500 supporting or opposing a ballot issue, they must register with the state as a PAC, appoint a treasurer, open a separate bank account, and file regular reports of all their activities, among other requirements. In Citizens United, the U.S. Supreme Court held that these requirements were too burdensome for corporations speaking out in candidate elections. Our argument is that they must therefore be too burdensome when applied to small citizens groups that want to speak out about ballot issues.

     ballot-box-money

    Obviously skeptical of our argument, at one point the judge asked Paul this question: If “[a] person from Montana who wants to come here and spend $20 million and buy an election and does not want to reveal his funding” under your argument “he can do that, too, right?” This is a common view. We need campaign finance laws to prevent people from “buying elections.”

     

    Of course, just because a view is common does not necessarily make it correct.

     

    In fact, as a recent column by David Brooks makes clear, the notion that campaign spending “buys” elections is obviously wrong. As Brooks points out, even though the Democrats have outspent the Republicans in a number of close races, they lag behind in the polls. The same thing has happened to the Republicans in the past. And Brooks lists a number of candidates—including Joe Miller, who beat Lisa Murkowski, and Christine O’Donnell, who beat Mike Castle—for whom money obviously was not the deciding factor. There are many more examples, including Jon Corzine, Michael Huffington and Ross Perot, all of whom spent huge sums of money and lost. The same applies to ballot issues. Last summer, for example, proponents of a California initiative that would have enacted public campaign financing outspent opponents 2 to 1 and still lost.

     

    None of this is surprising. Campaign spending doesn’t buy elections any more than commercial advertising buys market share. If it did, we’d all be driving American cars. The movies and television shows with the biggest ad budgets would be the most popular.

     

    Money buys speech.  It buys exposure.  But it can’t buy elections, because the voters are ultimately the ones making the decision.  Yet that’s exactly what the money-buys-elections argument denies.  That argument presumes that voters are empty vessels, waiting to be filled with whatever thoughts the candidates and “special interests” want to pour into their heads.

     

    The First Amendment is based on the opposite premise. As the Supreme Court said in Citizens United, “The First Amendment confirms the freedom to think for ourselves.” That some people may spend lots of money trying to convince us to agree with them does not make us any less free to make up our own minds.

    montanaWe at MakeNoLaw.org (and at IJ in general) often criticize the courts for not carrying out their constitutional role as a check on the other branches of government, so it’s nice every once in a while to be able to cite an example of a court doing what it is supposed to.  That happened in Citizens United, and it just happened yesterday in a state trial court in Helena, Montana.

     

    The case involved a challenge to Montana’s ban on corporations speaking about candidates for state office, a similar ban to the one at issue in Citizens United.  The corporate plaintiffs argued that under Citizens United and the First Amendment they had the right to spend money from their general treasuries directly on speech.  Just as the federal government did before the Supreme Court, the state argued that an alternative to banning corporations from engaging in independent spending would be to allow them to spend money on their own ads, but to make them do so through heavily regulated PACs.  As we discussed recently, a court in Minnesota accepted this approach in another case, and, contrary to Citizens United, ended up requiring corporations to speak through PACs.

     

    Happily, the Montana court rejected this approach and took the Supreme Court’s discussion of PACs in Citizens United seriously.  Quoting the Court’s statement that “[a] PAC is a separate association from the corporation” the court ruled that subjecting a corporation to PAC burdens violates the First Amendment.

     

    Citizens United was not a complicated case, and yet already some courts have misapplied it.  It’s nice to see that some courts are getting it right, but the battle over free speech during elections is far from over.

    We’ve pointed out before that if modern disclosure laws had existed 200 years ago, Madison, Hamilton and Jay would not have been able to publish The Federalist Papers without filling out a lot of forms first. The good folks at Reason have put together a faux campaign ad making the same point.

     fedpapers

    This is all very amusing, of course, but few people realize just how strong the case for applying disclosure laws to The Federalist Papers would have been. Disclosure laws apply to issue elections, and whether the new constitution should be ratified was undoubtedly the most important issue of the day. It was also highly controversial, with each side making heated accusations about the other. For example, Amos Singletary of Massachusetts claimed during his state’s ratification debate that the constitution was supported by “lawyers and men of learning, and moneyed men that talk so finely, and gloss over matters so smoothly” who want to “get into Congress themselves” and “ be managers of this Constitution, and get all the money into their own hands.”

     

    Alexander Hamilton, who came up with the idea for The Federalist Papers, chose “Publius” as his pseudonym after Publius Valerius, the celebrated founder of republican government in Rome. In fact, the Federalists even co-opted on of their opponents’ best arguments in taking on the label “Federalists,” which, before they adopted it, typically referred to someone who supported state sovereignty and opposed centralization. You can read about these and other interesting facts in Isaac Kramnick’s excellent introduction to the 1987 Penguin edition of The Federalist Papers.

     

    So let’s see, a group of elite political insiders operating under a benign-sounding name wrap themselves in the banner of one of their opponents’ best arguments against them and then support the adoption of a law that will profoundly affect the future course of their government. Sounds like of a campaign finance regulator’s nightmare. And yet, even without disclosure laws and government oversight, the people of the time were able to figure out what the arguments were and to choose accordingly. Imagine that. Maybe there’s a lesson in there for our modern age.

    Over at the Center for Competitive Politics blog, Brad Smith has a great post on how SpeechNow Groups are making some races more competitive by helping challengers overcome the natural advantages of incumbents.  Go read it right now.

    Robert_GibbsWhite House Press Secretary Robert Gibbs said something quite extraordinary the other day.  In defending President Obama’s attacks on the U.S. Chamber of Commerce’s temerity to actually engage in political speech Gibbs remarked:


    "There's no reason to back off," he said. "If there are organizations raising tens of millions of dollars who won't tell us who their donors are, my guess is they're not telling us for a reason -- because they have something to hide."

     

    Gibbs’s comments come in the context of the White House’s support for additional disclosure requirements, such as the DISCLOSE Act that we have discussed on this blog many times.  Thus, Gibbs is arguing that groups that engage in public debate about elections should be legally required to tell us who they get their money from, and if they don’t it must be evidence of something sinister.

     

    I wonder if Gibbs thinks the NAACP was such a sinister group in the 1950s when it fought the State of Alabama over its membership lists.  In a landmark decision the Supreme Court unanimously concluded that the state’s attempt to compel the NAACP to produce the lists violated the right to freedom of association.  It said “Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.”

     

    The NAACP’s cause of racial equality was, of course, a “dissident belief” in 1950s Alabama.  Many other beliefs are often “dissident,” such as opposition to the invasion of Afghanistan after the 9/11 attacks, opposition to the minimum wage, and defending the right to burn the American flag.  Beliefs opposed to each other can even be dissident at the same time, such as groups that are for/against same sex marriage.  Perhaps the most obvious example of a group that might fear retribution is one that speaks out for or against candidates for office, since candidates can often make life miserable for those who opposed them during the election.  Groups that advocate all of these views have an interest in protecting the anonymity of their members and donors.  This reflects a long tradition of protections of anonymous speech that extends back to, and before, the anonymously published Federalist Papers.

     

    The point is, groups that spend money on speech often do have “something to hide.”  They want to protect themselves and their associates from the powerful people they’ve criticized—people like Robert Gibbs and his boss.  Certainly, everyone has the right to criticize groups with which they do not agree.  That’s a freedom the First Amendment guarantees just as much as the freedom to speak anonymously.  But no one has the right to use the government to force others to disclose their members or funding sources so they can attack and try to intimidate them into silence.  As the Supreme Court has said, anonymity “exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation - and their ideas from suppression.”

     

    People like Gibbs are free to discount speech because it is anonymous or its funding sources are kept private, just as others are free to ignore that issue entirely and focus on the issues and the arguments made.  As the Supreme Court made clear in Citizens United, the decision that lead to this battle, “The First Amendment confirms the freedom to think for ourselves.”  If Gibbs and his boss had more confidence in the ability of Americans to do that, perhaps they would turn their attention to more pressing issues.

     

    Image Source: Randy

    In the spirit of Citizen Speech month, MakeNoLaw.org is proud to present story about a political entrepreneur featured in the Institute's recent Keep Out report:keep-out-report-1

     

    Diana Hsieh was a blogger when few people knew what the term meant. A passionate advocate for individual rights, she launched her now-popular blog Noodlefood in 2002 while working as a programmer as a way to get herself to write regularly on political and philosophical issues. Today, Diana presides over a mini-empire of online activism including blogs, discussion groups and even a small nonprofit. A recent Ph.D. in philosophy, Hsieh regularly speaks at philosophy conferences, writes articles and podcasts on various subjects—and still manages to find time to care for a small farm’s worth of dogs, cats and horses at her home in Sedalia, Colorado.

     

    "Although I’m not a political junkie, I just can’t bear to remain silent on some issues," said Hsieh.

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    If you follow campaign finance, you’ve undoubtedly heard of the latest trumped-up non-scandal involving the U.S. Chamber of Commerce.  President Obama and others have accused the Chamber of using money from foreign affiliates to fund ads attacking Democratic candidates.

     

    As both PolitiFact and FactCheck.org report, there is no evidence to support these charges.  But apart from the veracity of the charges, this latest round of campaign finance hysteria raises an important question:  Why should we care if foreign money is paying for political ads?

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    On Monday, the Washington Post ran an article linking recent increases in anonymous electoral spending to the Supreme Court’s recent ruling in Citizens United v. FEC.  But as I explain in a letter to the editor of the Post, Citizens United has little to do with these increases:

     

    Nonprofit corporations have been allowed to spend money in elections since 1986, and they had to disclose only contributions that were “earmarked” for political advertising. The only thing Citizens United changed: Corporations and unions are now allowed to give money to these nonprofits. But this is a little change, because corporations and unions were already permitted to anonymously fund issue ads discussing political candidates.

     

    Those looking for an explanation for the increased spending on this election should focus on congressional unpopularity, not Citizens United.

     

    But you don’t have to take our word for it.  Over at Slate, political blogger Christopher Beam has reached essentially the same conclusion.

    FeingoldSenator Russ Feingold, co-sponsor of the Bipartisan Censorship Act of 2002 (otherwise known as the Bipartisan Campaign Finance Reform Act of 2002 or “McCain-Feingold”), has publically stated that he does not want his party’s senatorial campaign committee to pay for TV ads on his behalf, asserting "That's frankly not who I am. I don't want to win that way."

     

    Well, great.  That’s his choice to say “Please don’t speak out on my behalf,” but it’s also his party’s choice whether to run their own ads or not.  It is also the choice of any other group to speak out about Feingold’s senate race.  That’s kind of how the First Amendment is supposed to work.  It gives all of us—not just politicians who are up for reelection— choices about whether to speak, when to speak, who to speak to and what we speak about.

     

    Sadly, that’s not a principle the Senator embraced when he chose to sponsor and vote for legislation that placed a whole host of limits on those who want to exercise their right of free speech.  If he had taken the words of the First Amendment seriously, he would have realized that’s the one choice the First Amendment does not allow him to make.

    momapplepie

    Yesterday, the Milwaukee Journal Sentinel [article] reported that Rice Lake Mayor Romaine R. Quinn is scheduled to appear in court on Oct. 27 for accepting a $1,609 campaign contribution, which vastly exceeded the legal limit of $250.

     

    But Mayor Quinn, who is only 20 years old, didn’t get this contribution from some shady developer or local businessman. He got it from his mom, Penny Hanson.

     

    No, we aren’t making this up.

     

    It turns out that neither the Mayor nor his mom knew about the $250 limit. Although he doesn’t face any criminal liability, Mayor Quinn will probably have to pay a sizable fine.

     

    Campaign finance laws are unconstitutional and counterproductive, but oftentimes that is obscured by their sheer absurdity. Who in the world would think that a candidate might be corrupted by his own mother? People have issues with their parents on occasion, but they typically don’t involve influence peddling. Clean your room; wear clean underwear; choose a nice girl to settle down with—perhaps. Here’s $1,600, now give me that contract for garbage collection—not likely.

     

    Unfortunately, courts typically don’t recognize a "this-is-idiotic" defense. Even when courts do dismiss these kinds of complaints, it’s after the accused is put through the proverbial ringer. That’s a great reason to oppose campaign finance laws: They do nothing to clean up politics, but quite a lot to scare Americans out of speaking. And that’s why we at the Institute for Justice have launched our nationwide Citizen Speech campaign.

     

    Image Source: Misterbisson

    As longtime readers of this blog may remember, the U.S. Supreme Court last Term decided Doe v. Reed, which asked whether Washington State could release the names and addresses of those who signed a controversial referendum petition. Check out IJ Senior Attorney Steve Simpson talking at Cato’s Constitution Day about what the Court did (and didn’t do) in Doe:

     

    Tom Bowden of Voices for Reason notes a fascinating discovery about the Declaration of Independence. Early in the original draft, Thomas Jefferson changed a word to “citizens.” But because he scribbled out the original word, no one could tell what he had written until recently. Using new technology, however, scholars have identified the word: “subjects.” As Tom says, “on the brink of revolution, here was Jefferson, eradicating an important vestige of the idea that government is the master and individuals are the loyal servants.”

     declaration_independencesm

    It seems entirely fitting to note this discovery as we kick off Citizen Speech Month. Citizens are equal before the law—equal to each other, and, importantly, to their governing officials. Subjects ask permission to speak. Citizens do not.

     

    One of my favorite lines from the Declaration of Independence is in the bill of particulars lodged against King George: “He has erected a Multitude of new Offices, and sent hither Swarms of Officers to harass our People, and eat out their Substance.” I can’t think of a better description for all the campaign finance bureaucrats and the morass of red tape they impose on citizens who wish to speak out about their elected officials.

     

    Enjoy the next month leading up to the election as a citizen, not a subject. Speak early, and speak often.

     

     

    When Hal Heiner decided to run for mayor of Louisville, Ky., patent attorney Theresa Camoriano knew it was time to get serious about local politics.  Theresa’s interest in politics had been growing for years, spurred on by both several run-ins with local bureaucrats and a general sense of frustration that government officials were not responsive to the citizens for whom they work.

     

    In her spare time, this budding political entrepreneur took her first foray into activism by publishing The Jefferson Review, an online newsletter critiquing government overreach.  Encouraged by her growing readership, Theresa’s desire to make her voice heard only intensified.

     

    camorianoSo Heiner's candidacy was welcome news:  Here was someone running for  office who shared Theresa’s views on the appropriate role of government and had a track record on city council to back it up.  Theresa volunteered for Heiner’s campaign, handing out bumper stickers and flyers, but she wanted to do more.  She wanted to tell voters about Heiner’s humility, trustworthiness and strength of character—messages not part of his official campaign, but things she knew to be true from years of knowing him.

     

    To spread this message, Theresa and other Heiner supporters wanted to pool their money to buy radio ads.  But under Kentucky’s campaign finance laws, like those of most states, this kind of political speech is illegal—unless they jump through a maze of legal hoops.

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    October

    As part of its Citizen Speech Campaign,the Institute for Justice is declaring October Citizen Speech Month. Throughout the month, IJ will feature the stories of political entrepreneurs who have been stymied by government regulation of political speech under the guise of so called “campaign finance” laws. 

     

    Today’s post features the story of Louisville patent attorney and budding political entrepreneur Theresa Camoriano.

    Legendary First Amendment lawyer Floyd Abrams has written a teriffic article for the Yale Law Journal defending the Citizens United decision. Abrams rightly criticizes “the willingness of so many not even to acknowledge, let alone weigh, the powerful First Amendment interests” at issue in the case. As he says,

     

    But that was the tack taken by too many commentators who focused exclusively on the potential (but necessarily speculative) political impact of the ruling and whether the Court was guilty of unacceptable judicial activism. Yet for all the angst about the Citizens United ruling and all the denunciations of it, the ruling is based on the most firmly established and least controversial First Amendment principles. So for me, the truly disturbing visage of the case is not that five members of the Court gave such weight to the First Amendment that some long-standing bans on corporate and union participation in the nation’s electoral process fell; it was that four members of the Court and many of its most distinguished and powerful observers serenely acquiesced in the criminalization of a documentary urging Americans not to elect as President a leading candidate for that position.

      

    Abrams is, of course, exactly right. Citizens United was firmly based on basic First Amendment principles. For anyone who truly values freedom of speech—and who understands what the “freedom” part actually means—the decision should not have been controversial at all. That it was one of the most controversial decisions in years is a measure, not of judicial activism or a pro-corporate, conservative Supreme Court, but of how far a large portion of this country’s intellectual establishment has strayed from the principles of the founding generation. The dirty little secret of a large number of opinion leaders in this country—not only politicians, but academics and even journalists—is that they support censorship as long as it is directed at ideas and people or groups they despise. Fortunately, I think more and more people are starting to understand the importance of Citizens United and why the Court did the right thing.