Tag: Clinton

‘We Don’t Put Our First Amendment Rights In the Hands of FEC Bureaucrats’

I (and several colleagues) have blogged before about Citizens United v. Federal Election Commission, the latest campaign finance case, which was argued this morning at the Supreme Court.  The case is about much more than whether a corporation can release a movie about a political candidate during an election campaign.  Indeed, it goes to the very heart of the First Amendment, which was specifically created to protect political speech—the kind most in danger of being censored by politicians looking to limit the appeal of threatening candidates and ideas.

After all, hard-hitting political speech is something the First Amendment’s authors experienced firsthand.  They knew very well what they were doing in choosing free and vigorous debate over government-filtered pablum.  Moreover, persons of modest means often pool their resources to speak through ideological associations like Citizens United.  That speech too should not be silenced because of nebulous concerns about “level playing fields” and speculation over the “appearance of corruption.”  The First Amendment simply does not permit the government to handicap speakers based on their wealth, or ration speech in a quixotic attempt to equalize public debate: Thankfully, we do not live in the world of Kurt Vonnegut’s Harrison Bergeron!

A few surprises came out of today’s hearing, but not regarding the ultimate outcome of this case.  It is now starkly clear that the Court will rule 5-4 to strike down the FEC’s attempt to regulate the Hillary Clinton movie (and advertisements for it). Indeed, Solicitor General Elena Kagan – in her inaugural argument in any court – all but conceded that independent movies are not electioneering communications subject to campaign finance laws.  And she reversed the government’s earlier position that even books could be banned if they expressly supported or opposed a candidate!  (She went on to also reverse the government’s position on two other key points: whether nonprofit corporations (and perhaps small enterprises) could be treated differently than large for-profit business, and what the government’s compelling interest was in prohibiting corporations from using general treasury funds on independent political speech.)

Ted Olson, arguing for Citizens United, quickly recognized that he had his five votes, and so pushed for a broader opinion.  That is, the larger – and more interesting – question is whether the Court will throw out altogether its 16-year-old proscription on corporations and unions spending their general treasury funds on political speech.  Given the vehement opposition to campaign finance laws often expressed by Justices Scalia, Kennedy, and Thomas, all eyes were on Chief Justice Roberts and Justice Alito, in whose jurisprudence some have seen signs of judicial “minimalism.”  The Chief Justice’s hostility to the government’s argument – “we don’t put our First Amendment rights in the hands of FEC bureaucrats” – and Justice Alito’s skepticism about the weight of the two precedents at issue leads me to believe that there’s a strong likelihood we’ll have a decision that sweeps aside yet another cornerstone of the speech-restricting campaign finance regime.

One other thing to note: Justice Sotomayor, participating in her first argument since joining the Court, indicated three things: 1) she has doubts that corporations have the same First Amendment rights as individuals; 2) she believes strongly in stare decisis, even when a constitutional decision might be wrong; and 3) she cares a lot about deferring to the “democratic process.”  While it is still much too early to be making generalizations about how she’ll behave now that she doesn’t answer to a higher Court, these three points suggest that she won’t be a big friend of liberty in the face of government “reform.”

Another (less serious) thing to note: My seat – in the last row of the Supreme Court bar members area – was almost directly in front of Senators John McCain and Russ Feingold (who were seated in the first row of the public gallery).  I didn’t notice this until everyone rose to leave, or I would’ve tried to gauge their reaction to certain parts of the argument.

Finally, you can find the briefs Cato has filed in the case here and here.

Hillary: The Movie

The Supreme Court is soon to hear a case that may drastically roll back campaign finance regulation in the United States:

The case involves “Hillary: The Movie,” a mix of advocacy journalism and political commentary that is a relentlessly negative look at Mrs. Clinton’s character and career. The documentary was made by a conservative advocacy group called Citizens United, which lost a lawsuit against the Federal Election Commission seeking permission to distribute it on a video-on-demand service. The film is available on the Internet and on DVD. The issue was that the McCain-Feingold law bans corporate money being used for electioneering.

The right position for the Court is that McCain-Feingold, and all other campaign finance regulation, constitutes unconstitutional limitation on free speech. This means reversing the Court’s 1974 Buckley v. Valeo decision, which held that government limits on campaign spending were unconstitutional but limits on contributions were not.

This distinction is meaningless. If it is OK for a millionaire to spend his own money promoting his own campaign, why can he not give that money to someone else, who might be a more effective advocate for that millionaire’s views, so that this other person can run for office?

More broadly, campaign finance regulation is thought control: it takes a position on whether money should influence political outcomes. Whether or not one agrees, this is only one possible view, and freedom of speech is meant to prevent government from promoting or discouraging particular points of view.

It would be a brave step for Court to reverse Buckley, but it is the right thing to do.

For more background on the case, watch this:

C/P Libertarianism, from A to Z

“Why Health Care Reform Could Fail Again”

Former Clinton administration adviser Stanley Greenberg has an illuminating article in The New Republic.  Greenberg compared the polls he did during the Clinton health care debate to his recent polling on President Obama’s proposed reforms:

Perhaps I should know better than to have sensed any profound changes in the country. And, when I got the results for the new survey, I looked at each question warily, remembering how it all went badly wrong. As I reached the last of the questions, I exclaimed: “Oh no. It can’t be. Nothing’s changed.”…

The country divides evenly on whether the greater risk is an unchanged status quo or government reforms that “create new problems.” And, finally, Obama might want to pay attention to how closely his situation echoes Clinton’s. Then and now, more people favor the president’s health care plan than oppose it, but the supporters make up less than a majority.

If anything, I found on most of these questions that the desire for change and support for reform was slightly stronger 16 years ago, underscoring the importance of learning some lessons from that history…

Our inability to talk credibly about how we would reduce health care spending or costs for individuals and the country built a contradiction into all our efforts–the more we talked about the comprehensiveness of our plans, the more voters worried this would yield higher premiums or higher taxes. Very quickly, voters came to conclude that their families would face higher costs.

And those dynamics are still in play. In my recent polling, I found that voters are skeptical about claims that reform will reduce costs and personal health outlays. Claims about simplicity, information-technology modernization, and best practices don’t seem to be enough to persuade them otherwise…

It may surprise you that Obama has already lost seniors, according to our current survey–only one-third approve of his plan. It doesn’t take a rocket scientist to see there isn’t much in it for them. There is already talk of carving out major savings from Medicare and, unlike during Clinton’s battle, no offer of a new drug benefit. Clearly, they need to see health care gains for themselves too…

With few illusions about the old system, union households are strong supporters of Obama’s proposal. Yet the members will ultimately judge whether the plan is good for their families–and I’m certain that all the talk about taxing insurance contributions has not gone unnoticed…

[W]hile voters have great confidence in Obama and his administration, they are worried about the deficits and spending and the government bailouts of the irresponsible. So, while voters want to see a rebalancing away from greed and toward the public good, almost half the citizenry is worried the government may get it wrong.Ross Perot is a distant memory, but his more libertarian, blue-collar male voters are very much alive. They are pretty certain government will mess this up–and only about 30 percent support Obama’s health care plan right now. With Republicans reciting their mantra about no “government takeover” of health care, the plan’s opponents have found a common text…

Most are not at all satisfied with a system that has forced them to trade higher wages for continued health insurance coverage and other compromises. But those personal compromises to get satisfactory coverage will mean people can live a little longer with the status quo and want to make sure the proposed changes really will make things better for their families.

Those who support real health care reform should take note.