Tag: campaign finance

A Year After Citizens United, Campaign Finance Back at the Court

As Caleb noted earlier, today marks the one-year anniversary of Citizens United, a case I first thought ”just” concerned some weird regulation of pay-per-view movies, but turned out to be about asserted government power to ban political speech — including books and TV commercials — simply because the speaker was not one individual but a group (in corporate or or other associational form).  See also this op-ed by ACLU lawyer Joel Gora.

Roger similarly noted the continuing discussion in Congress and elsewhere about the public financing of elections.  As it turns out, the Supreme Court has agreed to hear a challenge to such a system, specifically Arizona’s Clean Elections Act.  Brought by our friends at the Institute for Justice and the Goldwater Institute and supported by our brief at the cert petition stage, this lawsuit challenges a law that aimed to “clean up” state politics by creating a system for publicly funding campaigns.

Participation in the public funding is not mandatory, however, and those who do not participate are subject to rules that match their “excess” private funds with disbursals to their opponent from the public fund. That is, if a privately funded candidate spends more than her publicly funded opponent, then the publicly funded candidate receives public “matching funds.”

Whatever the motivations behind the Clean Elections Act, the effects have been to significantly chill political speech: privately funded candidates changed their spending — and thus their speaking — as a result of the matching funds provisions. In elections, where there is no effective speech without spending money, matching funds provisions such as those at issue here diminish the quality and quantity of political speech.

In 2008, however, the Supreme Court struck down a similar part of the federal McCain-Feingold law in which individually wealthy candidates were penalized for spending their own money by triggering increased contribution limits for their opponents (Davis v. FEC, in which Cato also filed a brief). Even this modest opportunity for opponents to raise more money was found to be an unconstitutional burden on political speech.

Cato’s latest brief thus asks the following question: Whether Arizona may give a publicly funded candidate extra money because a privately funded opponent or his supporters have, in the state’s judgment, spoken too much. We highlight Davis and numerous other cases that point to a clear answer: if the mere possibility of your opponent getting more money is unconstitutional, then the guarantee that your opponent will get more money is even more so. Allowing the government to abridge political speech in this fashion not only diminishes the quality of political debate, but ignores the fundamental principle upon which the First Amendment is premised: that the government cannot be trusted to regulate political speech for the public benefit. Moreover, the state cannot condition the exercise of the right to speak on the promotion of a viewpoint contrary to the speaker’s.

The case is McComish v. Bennett, consolidated with Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett.  The Court will hear it March 28, with a decision expected by the end of June.

Private Vice, Public Virtue

Today POLITICO Arena asks:

Would the House plan to vote next week on a proposal to end the system of financing presidential candidates and national conventions with federal funds wisely put to rest a public financing scheme that never worked well, or would it eliminate a bulwark against political corruption by forcing candidates to rely entirely on private money?

My response:

The decades long effort by the Left to finance presidential candidates and national conventions with federal funds – part of the Left’s more ambitious effort to finance all political campaigns with public funds – never worked as proponents hoped it would, with taxpayer participation through check-offs declining from 28.7 percent in 1980 to 7.3 percent in 2009 – and for good reason.

The corruption-prevention rationale was always bogus. And the idea that public financing would itself be corruption free didn’t pass the straight-face test. The American people may be dumb (quiet), but they’re not stupid! They’ll make their political contributions directly – thank you – not through the government – if the law allows them that right, which at present is highly regulated. Let’s hope that this move by the new House is only the first step toward removing government completely from the campaign financing business.

The Campaign Finance Crusade of The New York Times

In a barely coherent editorial this morning, The New York Times continues its decades-long crusade against free speech – except its own, of course – with yet another blast at the Supreme Court over its campaign finance decision last January in the Citizens United case. And again, the Times misstates the decision: it did not overturn “a century of precedent.” Perhaps its editorialists can be forgiven for that, even after nearly a year to get it right: after all, the president himself continues to misstate the decision, and that’s good enough for them.

Entitled “Our Constitutional Court,” the editorial’s main point seems to be that the Court is “redefining itself as a constitutional court.” That’s a curious charge. Many countries have “constitutional courts” that give, among other things, advisory opinions about the constitutionality of pending legislation. Our courts, by contrast, decide only “cases or controversies” that are ripe for decision, based on facts that bring the controversy into fairly sharp relief; but they’re still often “constitutional” decisions. The charge here, apparently, is that the Court acted where it needn’t have or, perhaps, had no authority to act. Yet the facts belie that.

Citizens United is a complex decision, but the facts giving rise to it are fairly simple. It arose over the question whether Citizens United, a non-profit corporation, could advertise a film critical of Hillary Clinton in broadcast ads during the 2008 primary season, in apparent violation of the 2002 McCain-Feingold Act. Thus, there was a real controversy here. But in upholding the right of corporations and unions to make independent campaign expenditures supporting or opposing candidates, the Court sustained a “facial challenge” to the statute that the parties had agreed to dismiss, and in so doing reached out to overturn an anomalous and mistaken 1990 decision that was directly on point, even though that case was not before the Court in the initial ’go-round of Citizens United. And that, apparently, is the “judicial activism” that so exercises the Times’ editorialists.

In truth, however, the Court was following a fairly well established practice. In First Amendment speech cases, as here, the Court entertains “facial” rather than “as-applied” challenges for a very simple reason. Were the Court to have found simply that Citizens United’s rights were violated in this instance, based on these particular facts, the statutory provisions restricting those rights would be left standing, unlike with a facial challenge, and the future speech not only of Citizens United but of all others would be chilled. The First Amendment will not stand that, and the Court so ruled.

Of all people, the Times editorialists surely understand that. But in their minds, campaign finance is not speech, and so they use this decision, in light of the “tumultuous change in the recent elections,” with which the editorial begins, to make a much broader point: that the Court decided “a sweeping issue of constitutional law” by “moving past the limited controversy that was actually in the case.” Thus the Court “inserted itself where [it] has said it should be most restrained, deferring to other branches with more competence to decide questions about the workings of politics, including about the role of money.”

That’s rich – the Times championing judicial restraint. One wonders what the response would have been had the Court held that the Great Gray Lady’s corporate wealth could not be put behind campaign editorials, almost all supporting the candidates of a single party. Fortunately, the Court seems to be moving in the opposite direction. The Times editorialists are perfectly free to put their corporate wealth behind candidates, and so, now, are the rest of us – thanks to the Court’s grasping the nettle.

The Success of SpeechNow

This morning the United States Supreme Court refused to consider the appeal in the case of SpeechNow.org v. Federal Election Commission. That’s a shame.

I have written before about the SpeechNow case. Here’s a brief summary of the issues. The judiciary has long held that individuals could spend as much as they wished on elections. The traditional rationale for restricting spending – preventing corruption of the political process – did not apply to spending by individuals. If that is true, the SpeechNow plaintiffs wondered why individuals joined in a group (and independent of the candidates and parties) should not have the same freedom from restrictions.

It turned out, thanks to Citizens United, that individuals did have that right to be free of limits on campaign spending as recognized by a federal court. That same court maintained, however, that the associated individuals still had to register with the Federal Election Commission as a “political committee.” The paperwork and related rules complicate and discourage participating in politics. By refusing to hear SpeechNow’s appeal, the Supreme Court has decided that these associations must register with the government before engaging in politics.

Nonetheless, the SpeechNow plaintiff deserve our thanks. They have gotten a lot more than “half a loaf” out of their effort. True, the government is still too involved in electoral speech, but the limits on political speech and association have been invalidated. That is a real achievement and more evidence that the long era of restrictions on campaign finance is drawing to a close.

Campaign Finance: Don’t Confuse Me with the Evidence

Today POLITICO Arena asks:

Is it worrisome that Americans spend on political advocacy – determining who should make and administer the laws – much less than they spend on potato chips, $7.1 billion a year?

My response:

For decades among modern liberals it has been an article of faith – devoid of evidence – that money corrupts politics and that there is too much money in politics – “unconscionable” amounts, we’ve been told, repeatedly. Thus the crusade to restrict and regulate in exquisite detail every aspect of campaign finance, beginning in earnest with the Federal Election Campaign Act of 1971 and culminating with the Bipartisan Campaign Reform Act of 2002 (McCain-Feingold). Yet after every new restriction along that tortuous course, ever more money has flowed into our political campaigns. But for all that, they’re no more corrupt than they’ve ever been. In fact, the best evidence of the fool’s errand that campaign finance “reform” has been all along is found in comparisons between states with little and states with extensive campaign finance regulations: When it comes to corruption, there’s not a dime’s worth of difference between the regulated and the unregulated states.

But all those regulations have accomplished two things that should give liberals pause. First, by virtue of their sheer complexity and cost, they pose a serious impediment to those who would challenge incumbents, who already have a major leg up on reelection. And second, because we cannot limit private campaign contributions and expenditures altogether, thanks to the First Amendment, the regulations have led to money being diverted away from candidates and parties and into other, often unknown, hands, over which the candidates and parties have no control – by design. As a result, we see candidates today having to disavow messages underwritten by people who would otherwise, but for the regulations, have given directly to the candidate or the party. But that outcome was absolutely predictable – and was predicted. Two good reasons to end this campaign finance regulation folly and let individuals and organizations contribute and spend as they wish. What are we afraid of, freedom?

This Just In: People Engaged in Politics!

The New York Times devotes major space today to a story disclosing campaign spending by the U.S. Chamber of Commerce. They have uncovered some pretty shocking stuff. Apparently the Chamber of Commerce is raising money from businesses to fund campaign ads. The Times has the goods:

[A] review of the nearly 70 chamber-produced ads found that 93 percent of those that have run nationwide that focus on the midterm elections either support Republican candidates or criticize their opponents.

What is the world coming to? An organization can raise money and use it to support or criticize candidates for office? It’s almost like we have freedom of political speech in the United States. Shocking stuff.

The New York Times may not like freedom of speech much for those who disagree with its editorial line, but I am happy we have freedom of the press as well as of speech. The freedom of the press means I can get additional information about the funding of the current election.

The Wall Street Journal reports that the American Federation of State, County and Municipal Employees (AFSCME), a leading union of government employees, has raised and will spend the most money on the mid-term election. More shocking stuff!

AFSCME is spending money to support Democrats who in turn will be expected to tax and spend to add or to save … jobs for public employees! I thought businesses were the only organizations that engaged in self-interested politics. Apparently not.

But AFSCME has the right to raise and spend the $90 million, and so did George Soros, and so does every misguided and hapless person and organization that for some reason disagrees with me about everything. Freedom of speech does not mean the “freedom” to agree with me or the New York Times.

In sum, the silly season is upon us as election day looms. Be prepared for more “news reporting” about the demons that are “undermining our democracy.” And give thanks that we don’t have to depend on just one source of news or speech in coming to judgment on those who hold political power.

Free Speech Means More Equal Speech

You might have gotten the impression that spending by outside groups in the current election cycle will fund a “giant bullhorn” for Republican candidates in the current election cycle while Democrats and liberals will have to whisper.

Yet the Rothenberg Political Report finds:

Throughout the election cycle, the National Republican Congressional Committee trailed the Democratic Congressional Campaign Committee in available money by at least a 2-to-1 ratio.

A detailed story in the Wall Street Journal summarizes “the Democratic Party and candidates had raised a total of $1.25 billion so far for the election. The comparable GOP figure is $1.1 billion.”

The Democrats enjoy, in other words, a $150 million dollar advantage, if we look only at party fundraising.

Now consider the outside groups:

In total, outside conservative groups—such as the U.S. Chamber of Commerce, American Action Network and American Crossroads—could spend more than $300 million on TV advertisements, campaign mailings and other efforts to elect Republicans to Congress this year. Outside Democratic groups, by contrast, plan to spend about $100 million on those activities.

But don’t forget the labor unions:

The largest labor unions say they will spend $200 million combined, but most of their focus will be on rallying union voters.

I conclude that the outside GOP groups will raise almost exactly as much as outside Democratic groups and the labor unions combined. The Democratic Party, however, will still enjoy a significant fundraising advantage over the Republican Party.

The Republican outside groups thus tend to level what would have been, absent their activities, a very unequal playing field in 2010.

I am not certain whether this closing of what would have been a huge Democratic fundraising advantage has anything to do with all of the complaints about “secret groups undermining democracy.” What do you think?