Tag: citizens united

An Imaginary Federal Election Commission

Jeff Patch and Zac Morgan of the Center for Competitive Politics report on the storm that is brewing at the Federal Election Commission over regulations to implement Citizens United. The three Democratic appointees propose regulations that would impose significant elements of the DISCLOSE Act, a bill that failed to pass Congress last year. The three Republican appointees, in contrast, propose to clarify existing law and clear away defunct regulations, all with an eye toward the holdings in Citizens United. The FEC seems unlikely to adopt the proposals by the Democratic appointees. After all, the Democratic commissioners do not have and are unlikely to obtain majority support for their agenda.

Imagine if the Federal Election Commission were directed by a seven-member board where one party or the other held a working majority. Imagine also the Democrats had a majority on this fictional commission. The regulations proposed by the three current Democratic commissioners would become the law of the land. They would become so despite the fact that Congress itself did not pass the DISCLOSE Act and the regulations contravene the spirit and perhaps the letter of a major Supreme Court decision.

How would that (imagined) outcome be compatible with American constitutional democracy? How would it comport with the rule of law?

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.

Today’s Challengers, Tomorrow’s Incumbents

It’s not at all clear that the political challengers whose fortunes are raised today won’t try to pull up the ladder of free and open political speech when their own incumbency receives a challenge. The Citizens United decision notwithstanding, the drive to be returned to office is a strong one.

In today’s Cato Daily Podcast (subscribe!), John Samples offers fans of free speech a few things to consider about this and future election cycles:

  • “In politics, when people talk about special interests, they don’t mean the people who support them.”
  • “[Independent spending on elections] is an unknown factor. Incumbents, even those who win big, live in fear of a big last-minute spending push by outside groups.”
  • “The point of campaign speech is voters. The evidence is that they’re going to know more about the incumbent because of the spending. … What the incumbents want really shouldn’t matter because in the end this is a republic and government by the people.”

Sebelius: Anonymous Political Speech ‘Dangerous’

In all of Washington, is there a greater enemy of free speech than Secretary of Health and Human Services Kathleen Sebelius?

  • Her department is forcing millions of Americans to finance speech that they oppose, by using taxpayer dollars to broadcast (misleading) television ads that promote ObamaCare.
  • She is using the powers granted her under ObamaCare to threaten insurers with bankruptcy if they publicly disagree with her about the law’s cost.
  • Now, she is decrying the growth of anonymous political speech in congressional campaigns.

Would that coerced speech, or government suppression of speech, troubled her as much as anonymous speech.

Citizens United/Disclose Act Debate

In case you missed yesterday’s excellent Hill Briefing on the DISCLOSE Act and other recent developments in speech restrictions, next week I’ll be debating Citizens United and the future of campaign finance regulation.  The event, cutely titled “Citizens United, Republic Divided; Campaign Finance Law After Citizens United,” takes place June 24 at noon at American University’s Washington School of Law, Room 401.  That’s 4801 Massachusetts Ave. NW here in Washington. 

IJ’s Steve Simpson and I will be up against American U’s Jamie Raskin and Election Law Blog’s Rick Hasen (who has also blogged this notice).  RSVP to Michael Vasquez at mv5786a [at] student [dot] american [dot] edu so there’s enough lunch to go around.

For Cato’s take on the DISCLOSE Act, see John Samples’s latest podcast, blogpost, and op-ed.  See also NRA board member Cleta Mitchell’s stunning op-ed about that organization’s cynical Faustian bargain.  Finally, here’s the piece John and I published in January in the wake of the Citizens United decision.

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?

Kagan Nomination: Around the Web

  • Confirmation hearings are a “vapid and hollow charade”, or at least that’s what Elena Kagan wrote fifteen years ago. National Review Online invited me to contribute to a symposium on how Republican senators can keep the coming hearings from becoming such a charade, with results that can be found here.
  • The First Amendment has been among Kagan’s leading scholarly interests, and yesterday in this space Ilya Shapiro raised interesting questions of whether she will make an strong guardian of free speech values. Eugene Volokh looks at her record and guesses that she might wind up adopting a middling position similar to that of Justice Ginsburg. As Radley Balko and Jacob Sullum have noted, the departing John Paul Stevens ran up at best a mixed record on First Amendment issues, so the overall impact on the Court is far from clear.
  • Kagan’s other main scholarly topic has been administrative and regulatory law, and Nate Oman at Concurring Opinions warns that everything in her career “suggests that she is intellectually geared to look at the regulatory process from the government’s point of view.” Oman took an advanced seminar she taught, and brings back this cautionary report:

    It was an interesting class, mainly focused on the competition between bureaucrats and political appointees. In our discussions businesses were always conceptualized as either passive objects of regulation or pernicious rent-seekers. Absent was a vision of private businesses as agents pursuing economic goals orthogonal to political considerations. We were certainly not invited to think about the regulatory process from the point of view of a private business for whom political and regulatory agendas represent a dead-weight cost.

  • I’m not the only one who finds Kagan’s exclusion of military recruiters at Harvard wrongheaded, even while agreeing with her in opposing the gay ban. Peter Beinart made that argument in a widely noted post at The Daily Beast last month and now has a followup. Former Harvard law dean Robert Clark is in the Wall Street Journal today (sub-only) with an argument that Kagan’s policy was a continuation of his own and represented the sense of the law faculty as a whole. Emily Bazelon points out that the recruitment bar was overwhelmingly popular at top law schools at the time, an argument that as Ramesh Ponnuru points out may raise more questions than it answers. And Ilya Somin cautions against assuming that the wrongheadedness reflects any specifically anti-military bias.
  • One of John Miller’s readers recalls John Hasnas’s wise words on “empathy” in judging. David Brooks at the Times runs with the “Revenge of the Grinds” theme. SCOTUSblog rounds up some other reactions (with thanks for the link). And Brad Smith, writing at Politico, advises us to be ready should Citizens United come up at the hearing.