Congress Shall Make No Law...

Slate’s U.S. Supreme Court commentator Dahlia Lithwick has written a paean to Stephen Colbert and his satirical Super PAC, Americans for a Better Tomorrow, Tomorrow.  As Lithwick sees it, the members of the Citizens United majority are getting their just deserts, as Colbert uses his Super PAC to attack a decision that contributed to the creation of Super PACs.


But there’s a problem with Lithwick’s narrative:  Virtually everything Stephen Colbert is doing was legal before Citizens United.


ColbertAlthough Colbert has often used the phrase “unlimited corporate money” in reference to his Super PAC, last Tuesday’s disclosures paint a very different picture.  Colbert’s PAC, which raised more than $825,000 through the end of the year, has raised almost no corporate money.  Indeed, the only two corporate donations he reported to the Federal Election Commission amount to $714, total.  In addition to barely raising any corporate money, Colbert’s Super PAC accepted only one contribution from an individual (of $9,600) in excess of the $5,000 limit that applies to regular PACs.


In other words, more than 99% of the money Colbert has raised to mock Citizens United and Super PACs is money that has been legal under the campaign finance laws for decades.


So what are the real lessons to be learned from Colbert’s surprisingly un-Super PAC?


Perhaps the most obvious is that campaign finance laws are rarely a hindrance for people with television shows espousing political messages that are already popular.  Those people already have the ability to get their message out to a national audience.  Political upstarts or outsiders—the real beneficiaries of the rulings in Citizens United and v. FEC—don’t have that option.


But another lesson—or perhaps more of a sad reminder—is that free speech will never want for critics.  There will always be those who use their free speech rights to advocate that others’ be restricted.  And it is surely their right to do so.  But such people aren’t—as Colbert and Lithwick seem to believe—cleverly using the tools of the Machine to attack the Machine.  They’re simply advocating censorship for speech they disagree with, and weakening the basis of their own rights in the process.


Image source: MHimmelrich

Last Tuesday, many so-called “Super PACs” for the first time disclosed their donors to the Federal Election Commission. But as proponents of campaign finance laws savor this newly released data—and whinge over how long it took for them to get it—here’s one thing you won’t hear them admit: We would have had this information weeks ago if our campaign finance laws were less strict.


Surprised? Don’t be. It’s just the latest example of the unintended consequences of the reform lobby’s zeal for ever-greater regulation of political speech. To understand how it happened, it helps to know a bit about the history of Super PACs.


Although the media commonly associates Super PACs with the U.S. Supreme Court's decision in Citizens United v. FEC, that decision is only indirectly related to the rise of Super PACs. Citizens United freed corporations and unions to spend on their own. But even after that decision, individuals and groups were still limited in their ability to pool money to spend on political speech.


freeing-speechnowIt wasn’t until the D.C. Circuit Court of Appeals decided a case called v. FEC that individuals and groups were permitted to pool money in unlimited amounts to spend on political speech. As the D.C. Circuit recognized in that case, if a wealthy individual or a corporation acting alone is permitted to spend an unlimited amount on political speech, it makes no sense to limit the amount that individuals and other groups can pool together to spend on political speech.


But the D.C. Circuit also did something else: It held that groups that pool money to spend on independent political speech may be required to speak through heavily regulated political committees (or PACs). Reformers cheered this portion of the ruling because PACs are the most heavily regulated groups under federal campaign finance law. The Campaign Legal Center—the pro-regulation group run by Stephen Colbert’s personal lawyer, Trevor Potter—called it “a victory for disclosure.”


It turns out to have been a Pyrrhic victory.


The reform lobby ignored the fact that PACs, while heavily regulated, disclose their donors on a preset schedule. The plaintiffs in the case had argued that they should be subject to the less stringent regulations that apply to groups other than PACs. Those groups, however, are required to disclose their donors within 48 hours of spending $10,000 or more on political ads (and within 24 hours if it’s less than 20 days before a primary or general election).


In other words, we could have known all along who was giving to Super PACs if the reform lobby and the Federal Election Commission, driven by a mantra that “more regulation is always better,” hadn’t turned their noses up at the offer.


None of this is to endorse the idea that contributions to Super PACs should necessarily be disclosed. The First Amendment protects the right to engage in anonymous speech, and people who get together to engage in independent political speech should, ideally, be allowed disclose as much or as little about their donors’ identities as they like. But it’s a great example of how the reform lobby’s tactics invariably focus, first, on making it difficult to put spend money on political speech, with all other considerations being secondary.


In light of this, there are good reasons to be skeptical of their efforts to revive last year’s failed DISCLOSE Act, which would impose extensive new disclosure requirements on Super PACs and nonprofit organizations. For the reform lobby, the fact that some groups might stop speaking rather than comply with these new burdens is a feature, not a bug.

Professor Jeffrey Rosen has written an attack on Citizens United v. FEC that attempts to transform the progressive complaints against the case into the main reason for the loss of “Americans’ confidence in their political system.” Rosen presents no evidence for this assertion, of course, perhaps because none exists. The Pew Charitable Trust’s recent poll of public priorities concluded—even after almost-hourly criticisms of Super PACs in the media and on the campaign trail and the focus on Citizens United allegedly resulting from the Occupy Wall Street protest—that campaign finance “remains on the back burner for most Americans” and is one of the lowest ranked issues across party lines. This has changed little from previous years. It is difficult to imagine how something that is “on the back burner for most Americans” has caused Americans to become so disillusioned.


Nonetheless, Professor Rosen sees signs of a “backlash” and faults the U.S. Supreme Court for failing to foresee this inevitable result. Rosen’s evidence of this “backlash” is weak: He cites the Move to Amend effort to “Occupy the Supreme Court,” an effort most notable for its utter failure to cause people to notice that it was occurring. He also cites a single decision of the Montana Supreme Court rejecting Citizens United as proof of a “judicial backlash.” But the Montana decision is unique. No other court has so blatantly rejected on-point Supreme Court precedent and a check of Lexis-Nexis reveals that Citizens United has been routinely followed, cited, and relied upon by dozens of federal and state courts across the country.


Professor Rosen attributes the Court’s failure to predict this “backlash” to the fact that none of the Justices were politicians before coming to the Court. Rosen implies that, had some of the Justices been in politics prior to becoming justices, they would have understood how Citizens United would be received and, presumably, voted to uphold the law at issue in the case. He celebrates Justices like Warren, Douglas and Black, among others, who had political experience before coming to the Court.


Justice_William_O_DouglasProfessor Rosen may have forgotten that Citizens United was not the first time Congress’s ban on political expenditures by corporations and unions had come before the Court. The Court had previously considered the ban twice and sidestepped the constitutional issue both times. In 1958, in U.S. v. International Union United Automobile, Aircraft and Agricultural Implement Workers of America, three justices dissented. These three justices would have reached the constitutional issue and struck the law down. These three justices were Warren, Douglas and Black. In the dissent, Justice Douglas called the law “a broadside assault on the freedom of political expression guaranteed by the First Amendment.” He wrote:


Some may think that one group or another should not express its views in an election because it is too powerful, because it advocates unpopular ideas, or because it has a record of lawless action. But these are not justifications for withholding First Amendment rights from any group—labor or corporate. First Amendment rights are part of the heritage of all persons and groups in this country. They are not to be dispensed or withheld merely because we or the Congress thinks the person or group is worthy or unworthy.


Justice_Wiley_RutledgeSimilarly, when the Court considered the law in 1948, four Justices dissented in the case. These Justices would have also reached the constitutional question and struck the law down. Although Justice Rutledge, a former academic and judge, wrote the dissent, he was joined by Justices Black, Douglas and Murphy. In case one is unfamiliar with the career of Justice Murphy, who died when he was just 59, he was a former U.S. Attorney General, Governor of Michigan, Mayor of Detroit, and Governor-General of the Philippines. Justice Rutledge’s dissent noted:


A statute which, in the claimed interest of free and honest elections, curtails the very freedoms that make possible exercise of the franchise by an informed and thinking electorate, and does this by indiscriminate blanketing of every expenditure made in connection with an election, serving as a prior restraint upon expression not in fact forbidden as well as upon what is, cannot be squared with the First Amendment.


Perhaps these politicians understood something that Professor Rosen does not: that a constitutional command that “Congress shall make no law . . . abridging the freedom of speech” means that Congress cannot constitutionally make a law abridging freedom of speech, regardless of “the serious political implications [the Court] could create” in coming to that conclusion. Ultimately, that is the role of the courts in constitutional cases—to uphold constitutional principles even in the face of public opposition, real or, in this case, mostly imagined. Indeed, this is exactly when judicial adherence to principle is most needed. Otherwise, the First Amendment, and the rest of our Constitution, becomes nothing but words on paper. Justices Warren, Douglas and Black understood this well, as did the justices in the majority in Citizens United.

Tomorrow is the second anniversary of the U.S. Supreme Court’s landmark ruling in Citizens United v. FEC.  To mark the occasion, the Institute for Justice has released public statements defending that ruling and defending the rise of so-called “Super PACs” as a means for people to pool their resources to speak out about political candidates:


Citizens United, Two Years Later: Institute for Justice Continues to Defend Landmark Free Speech Ruling


Institute for Justice Defends Super PACs


Speaking of Super PACs, John Samples of the Cato Institute was kind enough to write a blog post reminding people of the role the Institute for Justice played in their creation. Check out his post—SpeechNow, the Decision that Made a Difference—at the Cato@Liberty blog.

Rebecca Rosen of The Atlantic reports that Microsoft has joined with Nike and other for-profit corporations to advocate for gay marriage in Washington State:


In a week of tech industry protests about censorship, one company—Microsoft—is lending its voice to a different political cause: gay marriage.


It has joined with five other businesses (Vulcan, NIKE, RealNetworks, Group Health Cooperative, and Concur) to support bills that would legalize gay marriage in Washington state, where Microsoft is based. The letter to Governor Chris Gregoire was brief. In its entirety it reads, “We write you today to show the support of our respective companies for SB 6239 and HB 2516 recognizing marriage equality for same-sex couples.”


Good for Microsoft—they saw an issue they cared about and they spoke out. But, as critics of the U.S. Supreme Court’s ruling in Citizens United v. FEC keep reminding us, corporations aren’t people. Bearing that in mind, here are some questions for people who believe that corporations should not have First Amendment rights:


Do you think Microsoft should be prohibited from engaging in this sort of advocacy unless it first gets approval from its shareholders?


Do you think this sort of political advocacy is a “threat to democracy”?


Do you think the government should have the power to ban this sort of political advocacy simply because Microsoft is a corporation?


As it turns out, slogans like “corporations aren't people” aren’t very helpful when dealing with First Amendment issues, particularly if you’re sympathetic to the message being espoused.  The solution, we think, is to take the text of the First Amendment at face value and conclude—as the Supreme Court did in Citizens United—that the First Amendment prohibits the government from banning political speech based on the speaker’s identity.

Writing for The Atlantic, Wendy Kaminer has a must-read takedown of the efforts by Massachusetts Senator Scott Brown and his opponent, professor Elizabeth Warren, to keep third-party groups from speaking out against their candidacies.  Here’s a snippet:


Warren apparently wants the press to help silence outside groups. According to the Boston Globe, she has “suggested notifying broadcasters in the hopes of getting their help and ‘ensuring that the agreement not only cover express advocacy ads, but all paid advertisements that seek to promote or attack either candidate or campaign.’”


Shame on any media outlet that offers “help” for efforts to repress independent advocacy. Candidates naturally want to monopolize electoral speech; they want to “control the narrative.” They’re entitled to desire control, obviously, but they’re not entitled to exercise it, and they should surely know better than to ask media outlets to act as enforcers for their campaigns. The presumptuousness of the proposed Brown/Warren agreement is jaw-dropping.


Check out the whole thing.  While you’re at it, check out her article from earlier this week on the failure of campaign finance reform.

This Saturday, voters in South Carolina will cast their ballots to decide which candidate they want to represent their party in the 2012 presidential election. Saturday also marks the two-year anniversary of the U.S. Supreme Court’s ruling in Citizens United v. FEC. As anyone who has followed the presidential campaign knows, Citizens United and its effect on the election is a topic of hot debate. In particular, there has been a tremendous amount of news coverage regarding so-called “Super PACs,” which were made possible, in part, by that ruling.


Because the Institute for Justice supported the Court’s ruling in Citizens United and, indeed, played a direct role in the rise of Super PACs, we thought our readers might appreciate a little background on what exactly Super PACs are, how they came about, and how the law has continued to develop. What follows is not a complete history, but it should provide a solid overview.

At the stroke of midnight this morning, popular Internet sites went "dark" in order to protest two anti-piracy bills under consideration in Congress: the House's Stop Online Piracy Act (SOPA) and the Senate's Protect IP Act (PIPA).  Instead of finding informative entries on topics of interest, visitors to Wikipedia's English website will find an ominous shadow of the usual logo with the following message:


Imagine a World Without Free Knowledge
For over a decade, we have spent millions of hours building the largest encyclopedia in human history. Right now, the U.S. Congress is considering legislation that could fatally damage the free and open Internet. For 24 hours, to raise awareness, we are blacking out Wikipedia. Learn more.


On Google's home page, a black bar covers its iconic banner and links to an online petition opposing the bills. Under the search box, the site reads: "Tell Congress: Please don't censor the Web." Reddit, the popular social news website, replaced its usual content with a page describing its opposition to the bills, containing information on how to contact members of Congress, and a live update of latest news regarding the blackout. Mozilla is also participating in the "virtual strike" to protest the legislation, as are Craigslist and other websites.


The political message of the blackout is unmistakable:  the proposed legislation would give the government unprecedented power to censor the Internet.


Whether the anti-piracy bills would result in censorship of the Internet is an important question worthy of debate. But what is beyond question is that corporations – like Google, Craigslist, the Wikimedia Foundation, Mozilla, and others -- have a right to free speech protected by the First Amendment.


That is what makes it so surprising that Occupy Wall Street and its offshoots have joined today's protest against SOPA and PIPA.  For months, the Occupy Movement has been telling us that corporations, like the ones involved in today's "virtual strike" have no free-speech rights.  Now they oppose SOPA and PIPA on the grounds that these laws would censor content on the Internet.  But if corporations have no right to free speech, what prevents the government from shutting down websites of corporations right now, even without authority under SOPA or PIPA? Would members of the Occupy Movement really be in favor of a world in which the government could censor anything a corporation said?  Eugene Volokh asks a related question in his post.


Imagine a world without free-speech rights for corporations.  One thing is for sure:  it would look much worse than today’s blackout.