Tag: campaign finance

Problems Overturning Citizens United

Congress has been trying to overturn the Citizens United decision for the past four months. (Citizens United invalidated bans on speech by groups taking a corporate form). Their effort — the DISCLOSE Act — now seems bogged down in the House of Representatives. The National Rifle Association argues that they should not have to disclose their small donors. The labor unions also have complaints:

Amaya Tune, a spokeswoman for the AFL-CIO, told Bloomberg this week that “the final bill should treat corporations different than democratic organizations such as unions. We believe the legislation should counter the excessive and disproportionate influence by big business and guarantee effective disclosure of who is paying for what.”

Here’s the problem: The Supreme Court has ruled that Congress cannot regulate campaign finance to achieve equality of influence.  Ms. Tune is calling for changes in DISCLOSE to “counter the excessive and disproportionate influence by big business.” If Congress enacts those changes, how can the law be defended against the charge that Congress is seeking to legislate a greater equality of influence? Won’t the parts of the law demanded by the unions be unconstitutional?

How the World of Campaign Finance Is Changing

Journalists are looking closely at the DISCLOSE bill, Congress’ response to Citizens UnitedCQ says DISCLOSE will loosen independent spending by the parties on their candidates.

Why is Congress liberalizing party spending? CQ explains:

According to one GOP attorney, opponents of the Supreme Court’s decision are realizing that they will have a difficult time challenging the constitutional right of outside groups to spend money, so this bill is a response to free up the parties to compete.

Mark that. Citizens United has altered the incentives regarding speech. In the past, Congress tried to suppress speech to win elections. Now leaders must liberalize in order to compete for votes.

Stevens Retirement Ill-timed for Dems

The retirement of Justice John Paul Stevens at the end of the Supreme Court’s current term, and the coming nomination and confirmation process, will doubtless further complicate and delay the Obama administration’s already complicated agenda during this mid-term election year. And the timing cannot be good news for Democrats running for reelection, because the process will serve to highlight their understanding of the Constitution as a document authorizing all but unlimited government in a year in which, thanks to the Tea Party movement, the Constitution is likely to have a prominent place in reelection debates.

Regarding a replacement for Justice Stevens, the nominee will almost certainly come from the Democratic Party’s liberal ranks. As a result, the ideological complexion of the Court is not likely to change, since Justice Stevens, especially in recent years, has been the most reliable liberal vote on the Court, whether on abortion, campaign finance, gun rights, affirmative action, or several other hot-button issues. As the press reviews those decisions over the coming weeks and months, therefore, controversy over the Court will be in the air, adding to what already promises to be a very political year.

Citizens United Goes to Work

This post was co-authored with John Samples.

Another good day for free speech, and a bad day for campaign finance zealots. Following on the heels of the Supreme Court’s stunning decision two months ago in Citizens United v. Federal Election Commission, and applying that holding, all nine active judges on the D.C. Circuit Court of Appeals ruled unanimously today that government restrictions on the right of citizens to pool their money for independent political ads are unconstitutional.

Individuals have long been able to spend unlimited funds on independent political ads. But if two or more people joined together and pooled their money for the same thing, they were considered a “political committee” and were subject to numerous burdensome regulations, including limits on how much they could contribute to fund the group’s political speech. Today’s ruling removes those restrictions. Citing the fundamental rationale for campaign finance restrictions, Chief Judge David Sentelle wrote, “the government has no anti-corruption interest in limiting contributions to an independent expenditure group.”

The case, SpeechNow.org v. FEC, was brought by the Institute for Justice and the Center for Competitive Politics. Although a major First Amendment victory, the decision was not a complete win. The court upheld regulations requiring SpeechNow to disclose its contributors and their contributions and to organize itself as a committee. The court concluded such requirements would not be much of a burden on the speech of the group. We shall see. Experience may indicate otherwise, especially if disclosure leads to retaliation against groups like SpeechNow.

For today, however, the First Amendment is once again vindicated. Take a moment to pause and smile at the achievement.

Democracy against Free Speech?

A new poll from Washington Post/ABC News poll shows that most respondents oppose the recent Citizens United decision by the U.S. Supreme Court. Just over 70 percent of those polled want to reinstate the unconstitutional restrictions. The questions asked may be found here.

Sean Parnell asks whether the wording of the questions in this poll drove the results. William McGinley shares Parnell’s concerns and suggests some alternative questions for future polling.

I was not surprised by the result. Polls have long found that substantial majorities support something called “campaign finance reform.” Over two years ago, a poll found that 71 percent of Americans wanted to limit corporate and union spending on campaigns. 62 percent also supported limiting the amount of money a person could give to their own campaign, even though such donations could not involve the possibility of corruption. (This desire to restrict self-funding, by the way, has been patently unconstitutional for over thirty years).

The history of public opinion also should be kept in mind. Fifty years ago, when mass polling started, researchers found that the public both supported and opposed the First Amendment. Surveys found overwhelming support for “the First Amendment” and other abstractions like “the Bill of Rights.” They also frequently detected less than majority support for actual applications of the First Amendment and the Bill of Rights. Majorities opposed, for example, permitting Communists or other disfavored groups to speak at a local school.

Not much has changed over the years. In 2007, a survey funded by the First Amendment Center reported the following opinions related to First Amendment freedoms:

  • Only 56 percent believe that the freedom to worship as one chooses extends to all religious groups;
  • 50 percent agree “A public school teacher should be allowed to use the Bible as a factual text in a history or social studies class.”
  • 58 percent of Americans would prevent protests during a funeral procession, even on public streets and sidewalks;
  • 74 percent would prevent public school students from wearing a T-shirt with a slogan that might offend others;
  • majorities thought “the government should be allowed to require television and radio  broadcasters to offer an equal allotment of time to conservative and liberal commentators.”
  • That same poll also revealed that 66 percent of the public thought “the right to speak freely about whatever you want” was essential. Moreover, 74 percent found “the right to practice the religion of your choice” to be essential.

In the abstract, Americans continue to support First Amendment freedoms. In concrete cases, majorities still often oppose the exercise of such freedoms. Citizens United vindicated the First Amendment in a specific case that a majority does not support. This gulf between principle and application has been and continues to be common among Americans.

These findings suggest two thoughts. Liberals are now saying Citizens United should be undone because majorities oppose the decision. The principle that First Amendment rights should be overturned by majority sentiment may not please liberals in the future. Freedom of religion, in particular, attracts minority support in many concrete applications.

The more important lesson here involves an often ignored truth: the U.S. Constitution does not establish a government through which a majority can do anything it likes. The Bill of Rights marks a limit on political power even if a majority controls the government. (James Madison might have said especially if a majority controls the government). We have a Supreme Court to enforce those limits against government officials and against majorities. In Citizens United, the Court finally did what it should have done: protecting unpopular groups from the heavy hand of the censor. The fact that a majority favored and favors giving unchecked power to the censor matters not at all.

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The Government Should Have Less Power to Tax and Spend, Not More Power to Regulate Speech

Yesterday, The Hill asked various pundits and politicos to respond to the Supreme Court’s Citizens United ruling.  The Big Question (as their periodic feature is called) was, “Will corporate money change campaigns?”  You can read my response here.

Today, that same newspaper invited me to blog some further thoughts on the Citizens United decision.  Here’s what I wrote:

Critics of yesterday’s decision say the sky of American democracy is falling.  Supporters—including myself—say it’s a great day for the republic and a vindication of the freedom of speech.  How can this be?  Are nonprofit think tanks and advocacy groups like my own Cato Institute, the ACLU, the NRA, and many other odd bedfellows who supported Citizens United all in the pockets of Wall Street, Big Oil, insurance companies, and others that President Obama assails as corrupting our politics?  Leaving aside the issue of why the politician who got more of his campaign funding from Goldman Sachs than any other source would be going after the very industries that most support him, the asymmetry in this debate rests on the myth that money is an evil in the political system, and that therefore the American people want so-called campaign finance reform to “clean up” government.

Money is no more an evil in politics than it is in life generally.  Some people may not like mud-slinging attack ads, but some people also don’t like SUVs, the Super Bowl, the Jay Leno Show, and many other things that people spend money on—including donations to Cato, the ACLU, the NRA, etc.  The problem with money in politics isn’t the money, but rather the politics.  So long as the government is powerful enough to dole out tax breaks, subsidies, stimulus funds, regulations, earmarks, and a whole host of other goodies (and baddies), those that stand to benefit (and lose) will spend money on the political process.  The way to get rid of this behavior and spending—which is constitutionally protected in a whole host of ways: freedom of speech, freedom of association, the right to petition the government for redress of grievances, etc.—is to reduce the government’s power to affect so many people’s lives and transform economic incentives for businesses big and small.  Reduce the size of government and K Street will melt away.

Finally, as my colleague Roger Pilon points out, 26 states have minimal campaign finance laws, with no evidence that those states have more corruption—or a more unequal “political playing field”—than states that strictly regulate.  And that’s because the real reason we have campaign finance regulations—the dirty little secret behind the whole convoluted regime—is that it’s an incumbency protection racket.  From the so-called “millionaire’s amendment” that the Supreme Court struck down in 2008 to the limits on corporate and union advocacy that the Court struck down yesterday, McCain-Feingold and all other campaign finance legislation—passed by self-interested politicians—is designed to make it harder for challengers.  After-all, incumbents have the benefit of name recognition, taxpayer-funded travel to and around their home districts and states, taxpayer-funded campaign literature disguised as informational flyers touting all the great things a congressman is doing, and a host of other advantages.

The First Amendment is not a “loophole” for big business and those of us who want freer speech—without bureaucrats deciding who gets to speak when and how much—are not corporate shills.  Free speech is the very foundation of our democracy, and we are stronger today for the Citizens United decision.