Topic: Government and Politics

Enough is Enough

Three years ago the U.S. Supreme Court handed down McConnell v. FEC, a decision that upheld McCain-Feingold’s restrictions on political speech. The future seemed bleak for any limits on government regulation of speech and association.

But things are looking up. Today the Supreme Court handed down its decision in Federal Election Commission v. Wisconsin Right to Life.

McCain-Feingold made it a federal crime for any corporation to broadcast, 30 to 60 days before an election, any communication that mentions a federal candidate for elected office and is aimed relevant voters.  Wisconsin Right to Life (WRTL) is an ideological corporation that accepted funding from other corporations. Its members wanted to run ads in 2004 urging citizens of their state to contact its two senators and urge them to oppose a filibuster of judicial nominees. Sen. Russ Feingold, one of the senators and a co-author of the law in question, was running for re-election. Wisconsin Right to Life’s advertising plans thus constituted a federal crime. At least, they were a crime if the relevant part of McCain-Feingold was constitutional as applied to WRTL. In fact, McCain-Feingold was constitutionally invalid in this case and probably many others.

To understand why requires a quick summary of campaign finance law. Congress long ago prohibited contributions to candidates from the general treasuries of corporations and labor unions. But corporations could fund ads commenting on the issues of the day. However, if those ads directly advocated the election or defeat of a candidate, they became an attempt to circumvent the ban on corporate contributions and thus a federal crime. In Buckley v. Valeo, the Court said such “express advocacy” contained words like “elect” and “defeat.” If an ad did not use the words, it was not express advocacy and hence, not subject to campaign finance regulation.

In the 1990s some businesses and labor unions started funding advertising that met the legal standards for issue advocacy. The ads were legal and often highly critical of vulnerable members of Congress in the run up to an election. McCain-Feingold made such speech illegal. It said corporations could not fund ads that mentioned a candidate for federal office with 30 to 60 days of an election. The McConnell Court went along arguing that the ads in question were the “functional equivalent of express advocacy.” In the WRTL decision, the author of the majority opinion, Justice Roberts, has contracted rather than expanded the scope of government regulation. He has done so by redefining the meaning of express advocacy: “a court should find that an ad is the functional equivalent of express advocacy only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.” The WRTL ad seemed to a reasonable person to be attempt at grassroots organizing. Hence, WRTL wins.

But this standard implicates more than this case. Many of the ads in the 1990s that were the target of McCain-Feingold might have been free of regulation under this standard. Reasonable people could have believed that the ads were attempts to persuade voters to contact their representatives. The political space free of government regulation seems to have expanded. Indeed, it seems possible that many fewer ads will be judged the “functional equivalent of express advocacy” in the future.

So, the good guys won one at last. “Enough is enough,” as Justice Roberts writes in considering efforts to further expand government control of politics.

But still there is reason to worry. The majority did not declare the relevant part of McCain-Feingold unconstitutional. Justice Alito did suggest a willingness to hear constitutional challenges to the McConnell decision (and hence, to McCain-Feingold). Justice Roberts also set out some criteria for the “express advocacy” that are fairly broad. An ad that mentions “an election, candidacy, political party, or challenger; or [that takes] a position on a candidate’s character, qualifications, or fitness for office” could become express advocacy depending on future judgments by the Court and perhaps, by the Federal Election Commission.

An important battle has been won. The war continues.

Earmarks

As annual spending bills wind their way through Congress this year, there are ongoing battles over earmarked funding for members’ pet projects.

To get a sense of what the battle is about, check out this newly released list of earmarks in the House Interior appropriations bill.

People scour such lists looking for embarrassing bridges to nowhere in Alaska and indoor rainforests in Iowa.

But the real issue is federalism, not earmarks. Many of these funding projects are not federal responsibilities at all. Look at all the local sewer facilities on the list under the EPA. Why can’t Seattle, Buffalo, and other cities fund their own toilet pipes?

Of course, they can. But the idea of federalism has disappeared from public discussion in an orgy of state and local lobbying of compliant Washington politicians. For history and analysis of this issue, see here

(Oh, wait a minute, take that back — my guy Jim Moran (D-VA) scored $700K to clean up Four Mile Run beside where I live in Northern Virginia. Nice job Jim! You’ve got my vote!) 

A Reason to be Against Donor Disclosure

Several interest groups (Public Citizen, Common Cause and Democracy 21) have lately been trying to persuade Congress to set up an independent ethics panel to police members. They also want Congress to allow outside groups (like themselves) to file ethics complaints with the panel.

A House task force now proposes to grant them their wish. However, the task force also requires any group filing an ethics complaint to the new panel to disclose its donors.

The interest groups are not amused. Craig Holman of Public Citizen told The Hill:  “you can imagine how upsetting this is to the donor community.”

I do not support an independent ethics panel. However, Holman is correct here. A group that filed a complaint would open its donors to retribution by the named member or by his party or allies in Congress. Disclosure might even discourage donors from supporting these interest groups, thereby burdening the contributors’ rights to association and speech.

In fact, I think we should extend Craig Holman’s point to other donors. People who contribute to the campaigns of challengers to incumbents should also not have to disclose their donations. After all, their contribution (like an ethics complaint) threatens a member of Congress and might well bring about retribution.

Sauces, gooses, ganders. If disclosure threatens the interests of the donors to certain influential interest groups that might irritate people in power, surely it also threatens those who contribute to challengers to incumbents. These donors, like your average Common Cause contributor, should also be free of the burden of revealing their political activities to those who might do them harm.

Build a Wall

The prize for the best policy idea of the week goes to Steve Ahlenius, the president of the Chamber of Commerce in McAllen, Texas on the Mexican border.  As reported in The Monitor, a local newspaper:

McAllen, Texas calls for a wall around Washington, D.C.

We feel the need to protect ourselves from bad legislation, bad ideas, and a waste of taxpayer money.

A wall around their homes and businesses will give the legislators and Washington bureaucrats a better understanding of what kind of message this action will send.

Let’s see if they decide to climb over it, tunnel under it, or walk around it.

My 56-Word Review of SiCKO

SiCKO was a very funny film, and I praise Michael Moore for starting the conversation and pointing out many horrors of the U.S. health care system. 

But from a policy standpoint – and I say this more in sadness than in anger – SiCKO was so breathtaking a specimen of ignorant propaganda that it would make Pravda blush.

The Suburban Spending Machine

A few weeks ago I noted that the $3.3 billion county budget in one of Washington’s wealthy suburbs, Fairfax County, had a bit of fat in it, such as manners classes for kids. This weekend the Washington Post reported that ”a $2 million [swimming pool] renovation [in neighboring Arlington County], dedicated yesterday, is part of the Northern Virginia Regional Park Authority’s effort to woo residents from the increasing number of pools run by homeowners associations, officials said.”

Maybe if the private sector is providing a service, taxpayers could be relieved of that burden. If the argument is that government-run pools are intended to serve poor children who don’t have access to private pools, we could debate that policy. But the Post article makes clear that Northern Virginia government officials see themselves as competing in a “market” to attract customers from the pools provided by homeowners associations. And that seems a strikingly inappropriate mission for government.

Squelching Dissent

The New York Times has compiled a mammoth list of federal subsidies (or “earmarks”) to thousands of religious organizations.

Public discussions of such giveaways usually revolve around the First Amendment and also the possible damage that subsidies do to the strength, diversity, and integrity of  religious institutions themselves.

As a fiscal wonk, a bigger concern for me is that the flow of federal money to thousands of otherwise independent organizations squelches sources of dissent for government policies.

Let’s say you belong to the Jewish Council for Public Affairs, the Salvation Army, the Ebenezer Baptist Church in Atlanta, the Presbyterian Church in Louisville, Kentucky, or any of the other groups on the NYT list. Will you not be more hesitant to speak out about the War in Iraq, the immigration bill, civil liberties issues, or other policies because you don’t want to put your group’s federal funding put in jeopardy? Won’t you learn to take a more favorable view of big government over time as your group gets used to the steady stream of “free” money from Washington? 

I think earmarks such as ”$100,000 to the National Museum of American Jewish History, Philadelphia” are outrageous. Religious orders aren’t even responsible for their own history anymore? In my view, Jewish leaders ought to be ashamed of themselves for grabbing taxpayer money for such a project.

For more on earmarks, faith-based giveaways, and federalism, see http://www.cato.org/pub_display.php?pub_id=8246