Congress Shall Make No Law...

Twelve-term U.S. Rep. Peter DeFazio (D-Ore.) was recently criticized in independent political ads funded by a group calling itself Concerned Taxpayers of America.  Rep. DeFazio wanted to know who was behind the ads, and he wasn’t willing to wait until the group filed its quarterly campaign finance report in October to find out.  The Washington Post reports DeFazio as wondering, “Is this a corporation? Is it one very wealthy, right-wing individual? Is it a foreign interest? Is it a drug gang?”

 

170817449_bd1745ca45_mSo Rep. DeFazio did what any reasonable incumbent politician would do in that situation—with reporters in tow, he went to the address the group had listed with the Federal Election Commission and started shouting through the mail slot until someone agreed to speak with him.

 

No really.

September
23
7:17 PM

Huffington Post reporter Sam Stein tweets that the DISCLOSE Act fell one vote short of cloture.

September
23
3:06 PM

Over at Shopfloor.org, Carter Wood reports that the cloture vote on DISCLOSE will take place this afternoon at 2:15. According to a report last night by Meredith Shiner in Politico, DISCLOSE’s prospects for surviving the vote look grim:

 

Senate Majority Leader Harry Reid (D-Nev.) announced through a spokesman that he was bringing the DISCLOSE Act back to the floor on Thursday. But it’s all but assured that he’ll not have the 60 votes necessary to overcome a threatened Republican filibuster, with moderate Republicans showing no signs of flinching in their opposition.

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She adds that voting on DISCLOSE is something that the Senate leadership needed to do in order to kill time before the weekend:

 

When the defense authorization bill failed to clear cloture Tuesday, Democrats needed a measure to fill floor time before the weekend, and the DISCLOSE Act was one of the few measures in their legislative arsenal that was quickly available.

 

Having failed cloture once, the campaign bill only requires a less strict “motion to recommit” from Reid to call another cloture vote. New legislation likely would need 30 hours after being filed, 30 hours the Senate doesn’t have.

 

So even if Democrats know they’re likely short of votes Thursday, the alternative was practically nothing.

 

That alternative sounds pretty good to me. Indeed, I could have sworn there was part of the Bill of Rights that talks about how, when presented the opportunity to make laws that would abridge the freedom of speech, Congress should do nothing.

I can imagine few worse ways to spend a day than watching Senators give speeches on C-SPAN 2, but that’s exactly what Sean Parnell of the Center for Competitive Politics has been doing today. Why has he been subjecting himself to this ordeal? Senators are debating the DISCLOSE Act, which will be up for a vote tomorrow.

 

After listening to supporters of the legislation continue to make inaccurate statements both about the contents of the bill and the current state of campaign finance law, he concludes: “To the ever expanding list of reasons to vote against the DISCLOSE Act should now be added the seemingly irrefutable fact that the Senators advocating for it clearly do not understand what they are talking about.”

 

Don’t expect this fact to make supporters of campaign finance “reform” any less enthusiastic about giving these same Senators more control over the publics’ First Amendment rights.

 

Image source: HikingArtist.com

Yesterday, a district court in Minnesota ruled that corporations must become political committees or PACs in order to speak.  The case is called Minnesota Citizens Concerned for Life, Inc. v. Swanson.

 

The decisions directly conflicts with Citizens United, but it is particularly relevant to our petition for review in SpeechNow.org v. FEC.  In SpeechNow.org, the D.C. circuit ruled that an unincorporated association must become a PAC in order to speak, notwithstanding the Supreme Court’s ruling in Citizens United that corporations cannot be required to become PACs just to spend money on independent ads advocating the election or defeat of candidates.  We’ve asked the Supreme Court to accept that case for review because it conflicts with Citizens United.  Among other things, we pointed out that if the court’s can ignore Citizens United and require unincorporated associations to become PACs, there’s no reason they won’t do the same thing to corporations, thus nullifying an important part of Citizens United.  We hate to say we told you so, but it appears that that has now happened.

 

Just to back up a bit and put all this in context, in Citizens United, the Court held that the government cannot ban corporations from paying for independent expenditures—that is, ads advocating the election or defeat of candidates.  But it also held that they can’t be required to set up separate, heavily regulated PACs in order to speak out about political elections.  “PACs,” the Court pointed out, “are burdensome alternatives; they are expensive to administer and subject to extensive regulations.”  The Court then went on to catalog all of the regulations that apply to PACs.  In short, the Court essentially held that the government may not do indirectly what it is forbidden from doing directly.  If it cannot ban spending for speech outright, it also may not so heavily regulate that spending in order to accomplish the same thing.

 

In SpeechNow.org, which involves an unincorporated association that wants to do the same thing as the corporation in Citizens United, the D.C. Circuit struck down fundraising limits on the group because its independent spending, like the independent spending of the corporations at issue in Citizens United, posed no threat of corruption.  But the D.C. Circuit upheld the requirement that the group become a PAC in order to speak.

 

We are now seeking review in the Supreme Court.  We’ve argued that the SpeechNow.org decision conflicts with Citizens United, and that lower courts, following the D.C. Circuit, could even end up requiring corporations to become PACs in order to speak.  The district court in Swanson has now done just that. 

 

This is an object lesson on the impact of our incredibly byzantine campaign finance system, not only on speech but also on the courts.  Citizens United is not hard to understand, and yet the courts have already misunderstood it.  That isn’t surprising.  There are so many different rules, regulations and tests in this area, and so many conflicting cases, that it’s tough to know what the law is at any given moment.  Citizens United was a welcome dose of clarity, but to truly protect speech over the long haul, the Court will have to continue to instruct lower courts that free speech must be the rule, not the exception.

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.

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.

September
17
8:13 PM

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.

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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.”