Tag: campaign finance

More on Disclosure and Intimidation

Today Politico Arena asks:

Are conservatives hypocritical to argue for eliminating campaign finance restrictions and disclosure requirements, which they once supported, or does their argument regarding donor harassment carry some weight?

Roger Pilon made some good points about conservative donors facing harassment, which might explain shifts in conservative sentiment on the issue. In my own response, I tried to remind readers that people on all sides of controversial issues have reason for concern about disclosure and intimidation:

There are good arguments for disclosure, especially with regard to contributions to candidates: Let the voters see who might be influencing a candidate. Of course, there are lots of people who have influence without being major donors - mayors and governors, leaders of voting blocs and interest groups, editors and publishers. Maybe they should all be identified, too.

The case for disclosure is even weaker when it comes to supporters and opponents of initiatives. In that case there is no officeholder to influence. Once the law is passed, it’s the law. And we do know that there have been instances of bullying and intimidation based on donor disclosure. In the past both the NAACP and the Socialist Workers Party have petitioned to protect their donors from publicity and resulting abuse. Many businessmen shied away from supporting term-limits efforts to avoid offending incumbent officeholders. A couple of decades ago, people didn’t want to be known as contributors to gay-rights causes; these days, it may be worse to be known as an opponent of gay rights. In either case, disclosure has a chilling effect on political involvement.

The problems with disclosure may be greater today because of the increased polarization of politics and the role of the internet in both encouraging polarization and making it easy to identify and expose donors. Disclosure is a complex issue, but we should not ignore the chilling effect it can have on political engagement.

Campaign Finance, Disclosure, and Intimidation

Today Politico Arena asks:

Are conservatives hypocritical to argue for eliminating campaign finance restrictions and disclosure requirements, which they once supported, or does their argument regarding donor harassment carry some weight?

My reply:

Let’s just say that conservatives and libertarians have responded to events. When Obama singles out Romney donors for shame for “betting against America” and implicitly threatens them with investigation and more, when corporations that support the work of the American Legislative Exchange Council are harassed until they withdraw their support, and when petition signers in Los Angeles and Washington State are “outed” and then harassed and threatened by opponents, we’ve reached a new low in our political discourse. It’s not enough to disagree about a political issue: you’ve got to silence and even destroy your opponent.

And for what? So we’ll know that the Koch brothers support Republican candidates and free-market causes, or that George Soros supports Democratic candidates and collectivist causes? As if we didn’t know that already. The rationale for disclosure is as phony as the corruption-prevention rationale for our myriad federal and state campaign finance restrictions. Long before those restrictions were enacted, quid-pro-quo corruption was effectively prohibited by our ordinary laws, as it still is today in about half of our states. In the rest, and at the federal level, restrictions work simply to benefit incumbents and, where disclosure is required, to enable those who are so inclined to harass and intimidate their opponents.

The rationale for the confidentiality of campaign contributions is no less persuasive than the rationale for the secret ballot. Would proponents of disclosure want to eliminate the secret ballot, so we know who’s voting for whom? (There’s an opportunity for intimidation!) Then why treat contributions any differently? Sure, rich people can contribute more than poor people. But for every Wall Street there’s a Hollywood, for every corporation there’s a union (with unique advantages), so no one has a corner of contributors—unless, of course, campaign finance laws rig the game in one direction. And so we’re back to incumbent protection, the dirty little secret of the “reform” game.

Adler on How the IRS Is Rewriting ObamaCare to Tax Employers

Jonathan H. Adler is the Johan Verheij Memorial Professor of Law and director of the Center for Business Law and Regulation at Case Western Reserve University.  In this new Cato Institute video, Adler explains how a recently finalized IRS rule implementing ObamaCare taxes employers without any statutory authority.

For more, see this previous Cato video, “States Should Flatly Reject ObamaCare Exchanges”:

See also our November 2011 op-ed on this IRS rule that appeared in the Wall Street Journal.

An Intended Consequence

The New Republic has an interesting article explaining “How Campaign Finance Laws Made the British Press so Powerful.” Basically, only British newspapers are free of regulations that suppress political speech. The author suggests adding more controls (including content restrictions) on the British newspapers to enforce “impartial” coverage. In other words, the media should be just as repressed as everyone else, and political leaders should be free of criticism.

Like many others, I have long thought that U.S. newspapers editorialize in favor of campaign finance restrictions to control competing speech and thereby become more powerful. After Citizens United, other organizations now enjoy the same First Amendment protections as media corporations like The New York Times and The Washington Post. No doubt that does mean such corporations are less powerful than they would be if campaign finance laws suppressed political speech that competes with their editorials and news reports. However, such competition is good for voters.

The First in a Long Series

The Washington Post offers today a critical look at independent fundraising and spending in the 2012 campaign.

The article states independent groups are raising money “in response to court decisions that have tossed out many of the old rules governing federal elections, including a century-old ban on political spending by corporations.”

But the century-old ban is on campaign contributions by corporations, and it is intact. Spending on elections was not prohibited to some corporations until much later.

Other spending by corporations, like the money spent by The Washington Post Company to produce the linked story, has never been regulated or prohibited by the federal government.

The article mentions a “shadow campaign” and refers to Watergate. It states “independent groups are poised to spend more money than ever to sway federal elections.” Surely something is amiss here! Or at least the causal reader of the Post might conclude that.

But what is going on? A spokesman for one of the independent groups says they are trying to influence the debt ceiling debate and that as far 2012 goes: “We’re definitely working to shape how the president is perceived, because how he is perceived will have a huge impact on how this issue is resolved.”

It sounds like the group is engaging in political speech on an issue, speech that could have some effect on next year’s election. What is amiss about that? Isn’t the right to engage in such speech a core political right under our Constitution?

The article also argues that independent groups, being independent, may fund speech that may harm a candidate they are trying to help. Candidates, in a sense, have lost some control over their campaigns and their messages.

Of course, absent limits on contributions to candidates and parties, the money going to independent groups might go to…candidates and parties. Liberalizing speech, not suppressing independent groups, might be a good way to prevent groups from airing ads that harm or misrepresent candidates for office. Finally, candidates do have the power to repudiate independent ads.

Expect more news stories like this one over the next 18 months. The cause of campaign finance reform is in desperate straits. Reformers in the media are going to construct a narrative that says: money is destroying democracy in 2012, all because of Citizens United. They hope thereby to set the stage to restore restrictions on campaign finance.

Defending Anonymous Speech

For some time now, the U.S. Supreme Court has placed little weight on the value of anonymous speech, especially in the campaign finance context. True, in McIntyre v. Ohio Elections Commission (1995), the Court struck down a state law prohibiting distributing anonymous campaign literature. But from Buckley v. Valeo (1976) onward, the Court has looked favorably on disclosure of campaign spending. Even Citizens United saw only one justice, Clarence Thomas, speak out in favor of anonymous speech.

Long-time First Amendment advocate Nat Hentoff raises some questions about limiting anonymous speech in this video. He praises Justice Thomas and recalls the importance of anonymous speech during the founding era.