From his excellent article on Reason.com:
Last week The New York Times reported that “outside groups supporting Republican candidates in House and Senate races across the country have been swamping their Democratic-leaning counterparts on television.” The paper worried that “a relatively small cadre of deep-pocketed donors, unknown to the general public, is shaping the battle for Congress in the early going.”
The Times said “Democratic officials” believed “corporate interests, newly emboldened by regulatory changes, are trying to “buy the election.” In short, the spending patterns “seem to be a fulfillment of Democrats’ worst fears after the Supreme Court's ruling in the Citizens United case.”
Except that, as the Times conceded, “it is not clear...whether it is actually an influx of new corporate money unleashed by the Citizens United decision that is driving the spending chasm.” Other factors—“notably, a political environment that favors Republicans”—might be at work. In fact, most of the spending cited in the story was by rich individuals or by groups organized under Section 527 of the Internal Revenue Code, both of which were legal before Citizens United.
Further undermining the thesis that the decision explains the Republicans' spending edge, the Times noted that “corporations have so far mostly chosen not to take advantage of the Citizens United ruling to directly sponsor campaign ads.” And while they might be “funneling more money into campaigns through some of these independent groups,” corporations “had the right to make such contributions before the ruling.”
Jacob concludes his piece by reminding us that lots of money in politics isn’t a scary thing: “No matter how shadowy or flush with corporate dollars an interest group is, the only thing Citizens United allowed it to do is speak. Advocacy has no impact unless it persuades people.”
Well said. As the Supreme Court emphasized in Citizens United, “The First Amendment confirms our right to think for ourselves.” Lots of free speech—including the speech of those who would prefer to remain anonymous—is frightening only if you believe that the public is made up of mindless automatons that are incapable of exercising that right.
Unfortunately, as we’ve discussed before, that’s the view that is shared by politicians and others who champion the cause of “campaign finance reform.” If they placed the same trust in the public that the Founders did when they crafted the First Amendment, they would be celebrating, rather than demonizing, Citizens United. And they would hope that Citizens United would result in lots more political speech—not just in this election season, but in all those that follow.
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According to this report in the Washington Independent, the Senate will vote on the DISCLOSE Act tomorrow. Contrary to earlier reports, the bill will not be stripped down, but will instead be the same version that the Senate failed to pass last time.
Stay tuned for further developments.
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We’ve noted before that when government controls our economic affairs, it will inevitably control our speech as well. We’ve seen that tendency in calls to prohibit companies that receive TARP funds from lobbying and speaking out about elections and in the government’s threats against insurance companies that told policyholders they might lose their coverage if ObamaCare passed.
In Pajamas Media, Paul Hsieh highlights the latest example of this principle at work. Kathleen Sebelius, the Secretary of Health and Human Services, recently threatened to ban certain insurance companies from participating in the insurance exchanges that ObamaCare will create. Their crime? The companies told policyholders that recent rate hikes were due to increased costs associated with the new health care law.
Unfortunately, these are not just random examples of bad bureaucrats in action. Economic regulation—especially the extensive regulation we face today—must utlimately lead to restrictions on speech. The FEC and FCC obviously regulate speech, but so does the SEC, the CFTC, the FTC, and a host of other state and federal regulatory agencies. It’s inevitable, because in order to speak, we must act, we must enter into economic transactions, we must spend money, use computers, printing presses, broadcast stations and take innumerable other steps to make ourselves heard. If government regulates our economic affairs—as it does—it is only a matter of time before it will regulate our speech as well.
Indeed, just last week, IJ filed a case that illustrates the connection between economic regulation and speech regulation. Washington, D.C., as well as New York City, New Orleans, and a few other cities, requires a license to operate a tour guide company. Licensees must take a test to ensure that they are sufficiently knowledgeable to take people on tours and talk about their cities.
A license to speak? Isn’t that a prior restraint?
Well, yes. But it is also an occupational licensing law, and supporters of the law point out that we license plumbers, barbers, exterminators, cab drivers, funeral directors, and a host of other occupations, so why not tour guide companies. Of course, using the same logic, why not license reporters, authors, publishers, and bloggers as well? They’re all practicing a trade and are just as likely to speak out of ignorance, rather than erudition, as tour guide operators.
The answer is that the First Amendment still provides a ray of freedom in our otherwise regulated world—at least for those lucky enough to make their living speaking and writing. But that won’t last if we allow government to regulate everything else.
As my colleague Bob McNamara puts it in our video about this case, “The more occupational licensing restrictions grow, the more rights as basic as the right to talk about things will shrink.”
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Following up on my colleague Bert Gall’s discussion of seemingly unkillable frights, the Fair Elections Now Act (FENA) is also showing signs of life again. FENA, one may recall, is the name for a number of bills that operate from the assumption that if you preemptively shower politicians with the people’s money, they will not be tempted to be corrupt. Perhaps realizing that the post-election environment will be hostile for government subsidies for unsuccessful enterprises, Congress is giving the idea of bailing itself out one more try. On Thursday, September 23, 2010, the House Committee on Administration will vote on yet another version of FENA.
The current version of FENA does not include an obviously constitutionally-problematic “matching” or “rescue” funds provision, like the systems recently struck down in Connecticut and Florida and the Arizona system recently stayed by the U.S. Supreme Court. That does not mean that the various versions of FENA do not contain serious constitutional problems. Moreover, there is little evidence that using the people’s money to subsidize the campaigns of politicians provides any of the myriad and vast benefits promised by campaign finance reformers.
When the government is spending trillions and sinking deeper into destabilizing debt, spending money the government doesn’t have to subsidize political campaigns seems like a bad joke. At best, it displays a level of denial and entitlement by our elected officials that is almost delusional. The members of the Committee should do themselves, the Constitution, the federal budget, and the taxpayers a favor and vote this idea down once and for all.
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From CCP's press release, which provides a detailed breakdown of the results:
The Center for Competitive Politics released the results of a national poll today showing that likely voters are deeply skeptical of proposed campaign finance disclosure regulations, think current disclosure thresholds are too low and oppose the special deals given to unions in the DISCLOSE Act.
As Glenn Reynolds would say, read the whole thing.
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What does the DISCLOSE Act have in common with movie monsters like Jason Voorhees and Freddy Krueger? No matter how many times it appears to die, it keeps coming back to life. The Hill reports that Senate Democrats are preparing to force—as early as next week—a vote on a “bare-bones” version of the DISCLOSE Act that they hope will appeal to Senate Republicans like Susan Collins and Olympia Snowe, who have supported campaign finance restrictions in the past.
This “bare-bones” version, although it will not include things like prohibitions on political spending by companies with more than twenty percent foreign ownership, will still have “disclosure” mechanisms designed to discourage corporations from speaking during election season. Thus, DISCLOSE remains, as it always has been, a cynical assault on First Amendment rights by politicians who are afraid of corporations speaking out against their reelection.
As First Amendment advocates work again to put a stake in DISCLOSE’s heart, they should make sure, once and for all, that—unlike with Jason and Freddy—there is no possibility of a sequel.
Image source: Valerie Everett
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In a recent article in National Journal, Jonathan Rauch explains that the “Tea Party” is not one organization run by a top-down command structure, but rather a large number of local organizations across the country. Almost all of them are completely run by volunteers, and they do a multitude of different things: recruit candidates for office, hold rallies, network with other activists, etc. Many do not even have a formal organizational structure, but are merely a band of interested people who get together to talk and strategize, then take it upon themselves to accomplish various goals and see if others want to help out.
One particularly telling anecdote is the following:
Asked how many neighborhood tea parties exist in the Dallas area, another citywide coordinator replied, “I don't even know.”
The coordinator does not know because “tea parties” are often just groups of people who get together and start engaging in political activism. Their existence ebbs and flows, with groups constantly forming and disappearing. Groups frequently coordinate, but often they do their own thing.
What the article does not mention is that much of what these various groups do is potentially subject to campaign finance laws. For instance, if the members of a small grassroots tea party group want to put up signs for a candidate they like, under federal law (for a Congressional race) and the law of most states (for state and local races), they need to report their spending on those signs. If the “group” (I use quotation marks as it could just be a few people who belong to a Meetup group or even an email list) is coordinating the effort with other “groups,” then all of the people involved may be subject to complex administrative and reporting requirements that can be navigated safely only with the aid of lawyers and accountants. Much of this activity, luckily, flies under the regulators’ radar, but the potential for liability is widespread and ominous.
All of this goes to show that campaign finance laws are not designed for a decentralized bunch of activists like the Tea Party movement. But the application of campaign finance laws to the activities of these citizens is more than just another example of the government applying antiquated laws to a world they weren’t designed for. More importantly, these laws threaten to wrap tea partiers—as well as activists of all political stripes—in so much bureaucratic red tape that they can’t speak. While that’s a result that most professional politicians facing reelection this November would probably like, it’s one that those of us who care about keeping political speech in this country robust should abhor.
Image source: Toronto Public Library Special Collections
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Last week, Paul Sherman blogged about how campaign finance laws are often used as weapons by opponents in political campaigns. That shouldn’t surprise us a bit. Businesses often use regulations to gain an upper hand against their competitors. It’s hardly surprising that competitors in the political marketplace do the same thing.
Examples of this sort of thing abound. Kim Strassel of The Wall Street Journal recently reported on how opponents of Washington senatorial candidate Dino Rossi have been dogging him for years with lawsuits alleging violations of campaign finance laws. Conveniently, these suits tend to become active right around election time.
Both political parties give as well as they get when it comes to the strategic use of campaign finance laws. But that doesn’t make these abuses acceptable. For one thing, the laws are just as likely to be used against ordinary Americans as professional politicians.
A few years ago, the Institute for Justice defended an initiative campaign in Washington State that was sued for failing to disclose the on-air commentary of two talk radio hosts as “in-kind” contributions. The hosts supported the initiative, which sought to repeal a controversial gas tax, and they had the temerity to say so on the air. A number of local governments who stood to gain millions from the gas tax objected and expressed their disdain by suing the initiative campaign for allegedly violating disclosure laws.
The same thing happened to a group of neighbors outside of Denver in 2006. They opposed an initiative to annex their neighborhood into the adjoining town. For talking to neighbors, sending out post cards, and putting up lawn signs, they were sued for failing to register as an “issue committee” under Colorado law. Not surprisingly, the supporters of annexation were the ones who filed the suit. IJ is also litigating this case, which is currently on appeal before the Tenth Circuit Court of Appeals.
Campaign finance laws have done next to nothing to take the corruption out of politics. But they’ve done a great deal to put the lawyers and regulators in. That may provide for great political theater on occasion, but it doesn’t exactly inspire confidence in our electoral system, and it’s no way to protect free speech.
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