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.
In this new video, Cato scholars Neal McCluskey and Gene Healy weigh in on President Obama's speech to schoolchildren on their first day of class.
Overall message: It's not about the speech.
Cato education policy experts were very vocal about the whole ordeal, and the implications of Obama's speech. Cato's Education and Child Policy tagged posts have more details.
- How unions are becoming irrelevant to the average American worker in the private sector.
- Is the president's speech part of a sinister plan to create a socialist Obama Youth movement? Hardly. However, let us not forget that our Constitution's framers thought schooling was too important to be left to a federal government.
- The Supreme Court will rule Wednesday on whether the government can ban political speech during election time. Here's the back story.
- The 10-year budget deficit is now projected to be nine trillion dollars. Paul Krugman says it's no big deal. James Dorn thinks otherwise and explains why Krugman is mistaken.
- Podcast: The real problem with Obama's speech to schoolchildren.
Appearing on Fox News last night, Cato scholar Neal McCluskey weighed in on Obama's upcoming address to students:
USA Today reports that President Obama is seeking a cap on federal pay raises:
President Obama urged Congress Monday to limit cost-of-living pay raises to 2% for 1.3 million federal employees in 2010, extending an income squeeze that has hit private workers and threatens Social Security recipients and even 401(k) investors.
...The president's action comes when consumer prices have fallen 2.1% in the 12 months ending in July, because of a massive drop in energy prices. The recession has taken an even tougher toll on private-sector wages, which rose only 1.5% for the year ended in June — the lowest increase since the government started keeping track in 1980. Private-sector workers also have been subject to widespread layoffs and furloughs.
Last week, economist Chris Edwards discussed data from the Bureau of Economic research that revealed the large gap between the average pay of federal employees and private workers. His call to freeze federal pay "for a year or two" received attention and criticism, (FedSmith, GovExec, Federal Times, Matt Yglesias, Conor Clarke) to which he has responded.
As explained on CNN earlier this year, the pay gap between federal and private workers has been widening for some time now:
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:
Okay, well maybe Tax Tips for Democrats won't ever make it to the publisher, but while speaking at Cato University this summer, David Boaz offered a few tips to any more Democrats with tax problems who are thinking about joining the current administration.
"Some people say the best thing about electing a Democratic president is all the back taxes we collect from their appointees," says Boaz. "It helps to balance the budget."
Watch the whole thing:
C-SPAN 2 will air Boaz's talk on the state of freedom in America this Sunday at 11:30 AM EST.