Topic: Law and Civil Liberties

It’s Only Disclosure!

Policymaking in First Amendment area begins with a presumption of liberty. That is, strong reasons must be given to restrict basic liberties.

Mandatory disclosure of campaign finance activity requires such strong reasons. The U.S. Supreme Court has given three reasons for mandated disclosure: to deter corruption, to inform citizens so they can predict what a candidate might do in office, and to help enforce contribution limits.

Not much is known about how the policy of mandated disclosure actually relates to these “state interests.” No one has been much interested in examining their effects because no one much objected. Mandatory disclosure was thought of as the least intrusive means to regulate campaign finance and political activity. Hence, even people inclined to criticize campaign finance regulation were heard saying, “it’s only disclosure.”

Since the agenda of possibilities was limited, alternatives were not considered in light of the costs and benefits of disclosure. Now that’s changing. Dick Carpenter and the Institute for Justice have conducted a survey to learn more about the likely effects of disclosure, especially in the context of a ballot initiative. The results do not encourage complacency about mandated disclosure. The study is well worth a look.

Bob Bauer comments on the Institute for Justice study during his insightful remarks on the fifth anniversary of you-know-what.

Congress vs. President

Since the news media keeps saying that we’re heading for a “constitutional showdown” between President Bush and the Congress, it’s time for a pop quiz. 

Who wrote the following passage?

“Congress’s power to compel members of the executive branch to obey its legitimate requests for information has long been deemed critical to the functioning of our democracy and has been upheld by the Supreme Court.”

A. Hillary Clinton

B. Dick Cheney

C. Thurgood Marshall

D. John Yoo

The correct answer is D, John Yoo.  See “How Congress’s Subpoena Power Works,” Wall Street Journal, May 28, 1997.  Interestingly, ten years later, there’s another op-ed in the Journal, but today’s piece (subscription required) argues that the Bush Administration can resist congressional subpoenas that relate to the current controversy concerning the firing of the U.S. Attorneys.

Five Years Is a Long Time, Part 3

Here’s what McCain-Feingold did and did not do.

1. BCRA successfully prohibited most party soft money fundraising by federal officials.

So what? 527 groups took up most of the slack.

2. Parties raised as much hard money in 2006 as they had soft and hard money in 2002.

Yes, but they did not raise as much soft and hard money as they would have in 2006 if BCRA had not been passed. This had an interesting consequence…

3. BCRA cost the Democrats 20 House seats in the 2006 election.

Here’s why.

4. BCRA made it illegal to broadcast advertising for a movie criticizing the president of the United States.

If the ads were to run 30 days before a primary or 60 days before a general election. Unless, of course, the film enjoys the media exemption.

5. BCRA criminalized attempts to get people to contact their member of Congress.

If they mention a member’s name in an ad, if it’s 30 or 60 days, you know the drill. But the Supreme Court may yet overturn this part of the law.

6. BCRA may destroy the presidential public financing system.

By raising the hard money contribution limits, thereby making it possible for presidential candidates to run outside the system. But credit must also go to the Internet for lowering the costs of fundraising.

7. BCRA enabled a majority of the Supreme Court to be cowardly in the face of a frontal assault on the First Amendment.

Did I say cowardly? I meant BCRA gave the Court the chance to show “proper deference to Congress’ ability to weigh competing constitutional interests in an area in which it enjoys particular expertise.”

8. BCRA did not prevent corruption.

Remember why congressional Republicans were in trouble in 2006? BCRA didn’t prevent that corruption. Nor did it punish the malefactors. The voters did.

9. BCRA did not restore confidence in government.

Yes, I know. People should not have too much confidence in government. But justices of the Supreme Court care about such things. The American National Election Studies trust in government index fell in 2004 after rising continuously from 1994 to 2002. No prizes for guessing whether it fell or rose in 2006, surely one of the worst years on record for people’s faith that their government is not corrupt. So BCRA passes in 2002 and trust in government falls thereafter.

10. BCRA made John McCain a credible candidate for the presidency.

For now, at least.

11. BCRA did not hurt the Republican party.

They did that all by themselves.

Five Years Is a Long Time, Part 2

What has the Bipartisan Campaign Reform Act accomplished over the last five years?

Not much. But don’t take my word for it. Mark Schmitt helped fund the struggle for BCRA as a program officer at the Open Society Institute. Now he has written a candid and thoughtful analysis that begins:

Judged by the most visible results on promises like getting big money out of politics or cleaning up politics, campaign finance reform has been, to put it mildly, a disappointment.

Five Years Is a Long Time, Part 1

Today is the fifth anniversary of the signing of the Bipartisan Campaign Reform Act.

Five years ago, surveys found that 79 percent of the public approved of the job being done by the man who signed McCain-Feingold, George W. Bush. Now 34 percent approve of his work. Until recently, the major sponsor of the law, Sen. John McCain, seemed the most likely candidate to win the Republican presidential nomination for 2008. Now McCain persistently trails Rudolph Guiliani in the polls, and his presidential campaign seems to be in trouble.

If September 11th explained President Bush’s high rating five years ago, the war in Iraq has caused his free fall. Signing McCain-Feingold did show a certain lack of concern about political principles in the current president, but it probably cost him no more than a point or two in his approval ratings.  (In fact, his approval rating fell on average 3 points during the two months after he signed McCain-Feingold).

The case of McCain seems different. GOP primary voters saw and continue to see his campaign finance “reform” jihad as an attack on conservatism, the Republican party, and the U.S. Constitution. He is not liked. That didn’t matter much to McCain, because he believed Republican voters would prefer him, warts and all, to Hillary Clinton.

But that is not the choice Republicans have right now, and the choice they do have in surveys suggests Sen. McCain may not make it to the “me or Hillary” stage of his plan to become president. Perhaps principles do matter after all.

REAL ID, the Race Card

I testified in Congress yesterday, at a hearing on the REAL ID Act in the Senate Homeland Security and Governmental Affairs Committee’s Subcommittee on Oversight of Government Management, the Federal Workforce, and the District of Columbia.  My testimony is here.

An issue that I sought to highlight comes from studying the REAL ID regulations carefully: The standard that the Department of Homeland Security selected for the 2D bar code that would go on REAL ID compliant cards includes race/ethnicity as one of the data elements. 

DHS does not specifically require inclusion of this information, but states are likely to adopt the entire standard.  Thus, starting in May 2008, many Americans may be carrying nationally uniform cards that include race or ethnicity in machine-readable formats – available for scanning and collection by anyone with a bar code reader.   Government agencies and corporations may affiliate racial and ethnic data more closely than ever with information about our travels through the economy and society.

This was not intended by the authors of the REAL ID Act, nor was it intended by the regulation writers at the Department of Homeland Security.  The Belgian colonial government in 1930s Rwanda had no intention to facilitate the 1994 genocide in that country either, but its inclusion of group identity in ID cards had that result all the same.

The woman in the image below, believed to be a genocide victim, is categorized as a Tutsi just below her photograph.  Her name is not seen, as it appears on the first page of this folio-style ID document.  The names of her four children, though, are written in on the page opposite the photo.

The lessons of history are available to us. The chance of something like this happening in the United States is blessedly small, but it is worth taking every possible step to avoid this risk, given an always-uncertain future.  In a society that strives for a color-blind ideal, the federal government should have no part in creating a system that could be used to track people based on race. 

 photo by Jerry Fowler, USHMM