Congress Shall Make No Law...

New York City Comptroller John Liu and New York City Public Advocate Bill de Blasio, last seen here enjoying the finer things in life thanks to excess campaign funds provided by the City taxpayer, announced last week that their efforts to require Sprint Nextel to disclose political spending had taken a step forward. The Pension Funds holds over 8 million shares of Sprint Nextel with an asset value of over $41 million—in other words, Liu controls a big share of the ownership of Sprint.

 

 

Why does Liu care about Sprint’s political spending? As Comptroller, Liu has a fiduciary duty to maximize the benefits to the participants of the New York City Pension Funds—namely, current and former New York City teachers, firefighters, and police officers. As a fiduciary, Liu “must discharge his or her duties … solely in the interest of the plan’s participants and beneficiaries. In the discharge of those duties, the fiduciary must act for the exclusive purpose of providing benefits to participants and defraying the reasonable expenses of administering the plan.” 60 Am. Jur. 2d Pensions and Retirement Funds § 437.

 

 

It is unclear how forcing companies to disclose their political giving is “act[ing] for the exclusive purpose of providing benefits to participants.” So who does benefit from this effort? The trustees of the New York City Pension Funds are New York City elected officials and the heads of large public sector unions. These folks could certainly find the political spending of corporations to be very interesting, especially if the corporations are funding challengers to these politicians or supporting candidates who take positions with which the public sector unions disagree. Despite the talk about “transparency and accountability,” knowing a corporation’s political spending makes them susceptible to targeted government retribution or union activism and protest.

 

 

Liu and de Blasio should not be using the pensions funds of hundreds of thousands current and former employees of New York City to create an enemies list for incumbent politicians and powerful public sector unions.   Perhaps it is time for New York City retirees to remind Liu that, in administering the Funds, his job requires him to keep their financial interests—and not the political interests of New York’s elected officials and union bosses—foremost in mind.

There have been few politicians who have fallen so far and as fast as John Edwards. It is difficult to argue that he did not earn it, either. However, even someone as oleaginous as he does not deserve his latest problem.

 

 

The New York Times reports that the Justice Department will soon be indicting Edwards on criminal charges for misusing campaign funds. The indictment will allege that Edwards used money solicited from two wealthy donors to hide his affair and the child he had with his mistress, Rielle Hunter, as well as to pay off an aide to claim to have fathered that child in order to cover for Edwards. The Justice Department is proceeding under campaign finance laws because, as the Times reports, “[t]he money could be considered campaign contributions if prosecutors can show that Mr. Edwards helped orchestrate donations to hide Ms. Hunter or that he knew the money would be used to keep the affair hidden so it would not hurt his candidacy.”

 

 

To put it in technical terms, this is nuts. What Edwards did was a lot of things, none of them very nice, but it is a stretch to call them campaign finance violations. Only through a series of ridiculous assumptions can one call the money solicited to pay off his mistress and a fall-guy campaign contributions. Instead, the government’s desire to prosecute him appears to be a radical expansion of what the law considers campaign funds. If this definition sticks, it would give the government enormous power to investigate and prosecute any solicitation of money used to benefit someone who happens to be a candidate, no matter how tangentially connected to the candidate’s actual campaign. One hopes that Edwards will fight, and stop, this effort to expand campaign finance laws to cover monetary transactions that have nothing to do with campaigning.

The last time we wrote about FEC Commissioner Don McGahn, we were reporting the well-deserved rebuke he delivered to “reform” proponent Norman Ornstein in the pages of Roll Call.  As TPMMuckraker reports, McGahn is continuing to speak his mind in response to his critics:

 

“I feel bad for” the reform groups that call the agency dysfunctional, [McGahn] said. “Much of their life’s work has been rendered irrelevant by a series of stinging court cases.”

 

The campaign finance lobby is, naturally, offended by McGahn’s blunt statement.  But there is nothing inaccurate about it.  Much of the reformers’ handiwork has been undone over the last five years, and there is no reason to expect that this will change anytime soon.  And although the “reformers” may despair at these developments, we celebrate them as victories for free speech and we applaud McGahn for calling it like he sees it.

viagra prix - - questions connexes sexuelles peuvent commencer début dans un vie ou qu'ils peuvent immédiatement après prévoit agréable et satisfaisant sexe . Problèmes acquérir progressivement après un certain temps, ou peut-être peut se produire soudainement out of the blue en total pas capable et livrer à un certain nombre d' phases niveaux de la intime acte à caractère sexuel. Quelles sont les causes difficultés sexuelles pourrait être physique , santé mentale ou chaque . Émotionnel rapports sexuels sociable Publique mental problèmes de santé mentale au sein de l' à l'intérieur du personnel uniques. Interpersonnelles complications comprennent matrimonial ou peut-être difficultés ou 'absence de confiance en plus parmi concernant partenaires. Particulier particulières problèmes psychologiques inclure des choses comme la dépression, ébats honte ou précédente choc. Bien mai regarder maladroit de parler avec votre médecin en ce qui concerne dysfonction érectile l'impuissance, {vont dans des | с | chercher | choisir | get {} une évaluation | une évaluation}. Questions ou essayant de garder peut être assez Indicateur de santé dont remède , par exemple maladie de coeur ou terriblement contrôlé diabète . Traiter un sous-jacent problème est peut-être pouvoir problèmes érectiles .

viagra 100mg - buyfrviagra.com - questions connexes sexuelles peuvent commencer début dans un vie ou qu'ils peuvent immédiatement après prévoit agréable et satisfaisant sexe . Problèmes acquérir progressivement après un certain temps, ou peut-être peut se produire soudainement out of the blue en total pas capable et livrer à un certain nombre d' phases niveaux de la intime acte à caractère sexuel. Quelles sont les causes difficultés sexuelles pourrait être physique , santé mentale ou chaque . Émotionnel rapports sexuels sociable Publique mental problèmes de santé mentale au sein de l' à l'intérieur du personnel uniques. Interpersonnelles complications comprennent matrimonial ou peut-être difficultés ou 'absence de confiance en plus parmi concernant partenaires. Particulier particulières problèmes psychologiques inclure des choses comme la dépression, ébats honte ou précédente choc. Bien mai regarder maladroit de parler avec votre médecin en ce qui concerne dysfonction érectile l'impuissance, {vont dans des | с | chercher | choisir | get {} une évaluation | une évaluation}. Questions ou essayant de garder peut être assez Indicateur de santé dont remède , par exemple maladie de coeur ou terriblement contrôlé diabète . Traiter un sous-jacent problème est peut-être pouvoir problèmes érectiles .

viagra naturel - buyfrviagra.com - questions connexes sexuelles peuvent commencer début dans un vie ou qu'ils peuvent immédiatement après prévoit agréable et satisfaisant sexe . Problèmes acquérir progressivement après un certain temps, ou peut-être peut se produire soudainement out of the blue en total pas capable et livrer à un certain nombre d' phases niveaux de la intime acte à caractère sexuel. Quelles sont les causes difficultés sexuelles pourrait être physique , santé mentale ou chaque . Émotionnel rapports sexuels sociable Publique mental problèmes de santé mentale au sein de l' à l'intérieur du personnel uniques. Interpersonnelles complications comprennent matrimonial ou peut-être difficultés ou 'absence de confiance en plus parmi concernant partenaires. Particulier particulières problèmes psychologiques inclure des choses comme la dépression, ébats honte ou précédente choc. Bien mai regarder maladroit de parler avec votre médecin en ce qui concerne dysfonction érectile l'impuissance, {vont dans des | с | chercher | choisir | get {} une évaluation | une évaluation}. Questions ou essayant de garder peut être assez Indicateur de santé dont remède , par exemple maladie de coeur ou terriblement contrôlé diabète . Traiter un sous-jacent problème est peut-être pouvoir problèmes érectiles .

My colleague Steve Simpson and I have an op-ed in The Wall Street Journal today discussing TV funnyman Stephen Colbert’s latest riff on Citizens United v. FEC.  As some of our readers may know, Colbert has been trying to start a federal PAC to satirize the ease with which “unlimited corporate money” can be collected in the wake of Citizens United.  But Colbert is quickly discovering that campaign finance law remains incredibly difficult to navigate, particularly for political novices:

 

“Why does it get so complicated to do this? I mean, this is page after page of legalese,” Mr. Colbert lamented. “All I’m trying to do is affect the 2012 election. It’s not like I’m trying to install iTunes.”

 

Well, that’s pretty much what the nonprofit group Citizens United said to the Supreme Court in the case that Mr. Colbert is trying so hard to lampoon.

 

Be sure to read the whole thing.

 

Update:  Professor Rick Hasen, proprietor of the invaluable Election Law Blog, offers his thoughts on our op-ed:

 

Though I don’t agree with these gentlemen on the substance of campaign finance law, I have been thinking similar things about some of the unintended consequences of the Colbert gambit.  This is a lot more dangerous for campaign finance law than Colbert’s Hail to the Cheese candidacy from 2008.

minnesotaYesterday, the Eighth U.S. Circuit Court of Appeals issued a split decision upholding Minnesota’s post-Citizens United campaign finance law.  By a 2-1 vote, the court determined that even though the U.S. Supreme Court in Citizens United ruled corporations cannot be forced to form burdensome PACs in order to speak about elections, it is entirely ok for Minnesota to do the same thing.  We’ve discussed the case before when it was filed last year.

 

Basically, the Eighth Circuit said that the regulations Minnesota imposes on PACs are not as burdensome as those at issue in Citizens United.  The court latched onto Citizens United’s approval of some disclosure requirements in making this argument, stating that because Minnesota’s system serves the purpose of disclosure it is constitutional.

 

But there are two problems with this reasoning.  First, the differences between Minnesota’s PAC regulations and those at issue in Citizens United are minimal.  Each scheme requires speakers to appoint treasurers, complete and file detailed reports, and disclose all kinds of information.  Second, the disclosure laws upheld in Citizens United were entirely separate from the PAC regulations it struck down and far less burdensome.  So the Eight Circuit has essentially used one part of Citizens United as the grounds for ignoring another part of the decision.

 

Judge Riley, however, authored a terrific dissent that hopefully will inspire judges elsewhere to enforce the First Amendment and protect free speech.  Among other things, he said “Under Minnesota’s scheme, a corporation is compelled to decide whether exercising its constitutional right is worth the time and expense of entering a long-term or even perpetual morass of regulatory red tape.”  The Supreme Court held in Citizens United that the First Amendment does not allow government to impose that choice on speakers.  It’s unfortunate that the two judges on the Eight Circuit did not understand that, but in the long run, we think other courts will.

The Blog of Legal Times reports on yesterday’s argument in Bluman v. FEC, a First Amendment challenge to federal campaign finance laws that prohibit noncitizens from making contributions or expenditures related to federal elections.

 

bluman_groupThe challenge was brought on behalf of two noncitizens: Benjamin Bluman, a Canadian lawyer who supports Democrats, and Asenath Steiman, an Israeli-Canadian doctor who supports Republicans.  Both Bluman and Steiman lawfully live and work in the United States.  But because they are not classified as “permanent residents,” they are prohibited from making political contributions or expenditures.

 

The legal theory of the case is straightforward:  Courts have long held that noncitizens who are lawfully within the United States enjoy the full protection of the First Amendment.  The U.S. Supreme Court has held that citizens have a First Amendment right to make political contributions and expenditures.  Therefore, noncitizens who are lawfully within the United States should have the right to make political contributions and expenditures.

 

Although straightforward, the argument is also controversial.  Politico’s coverage of the case, titled “Lawsuit revives fears of foreign cash,” discusses some of the dire predictions from the Federal Election Commission, which is defending the law, and the conspiracy-theorizing from groups like ThinkProgress regarding the funding of the case.

 

As we’ve noted before, concerns about foreign money in elections are vastly overblown.  Money spent on campaigning is money spent persuading American voters, who ultimately control the levers of power in this country.  The First Amendment protects that right.  Perhaps more importantly, the First Amendment protects the right of voters to decide where they will get their information.  As Justice Kennedy aptly put it in Citizens United v. FEC,

 

When Government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves.

 

In short, there is no reason to be any more concerned about electoral speech from non-permanent residents—who live in America, are subject to our laws, and pay taxes—than we are about foreign newspapers, which routinely weigh in on American elections, or foreign authors, who routinely write books about American policies.  All are equally valid contributions to the marketplace of ideas.

 

We say, “Bring on the Bluman groups.”

 

Image Source: Robert Goodwin

Former Republican Senator Alan Simpson has penned an op-ed for The Washington Post in which he urges Republicans to support Senator Richard Durbin’s Fair Elections Now Act, which would provide government funds for politicians to run for office. At a time when the federal government’s debt is reaching unimaginable levels, Simpson wants both parties to support forcing Americans to subsidize the campaigns of the political class, including those that borrowed and spent that money in the first place.

 

Simpson, a co-chair of Americans for Campaign Reform, argues that a raft of benefits will result from forcing Americans to subsidize the campaigns of politicians that they don’t support or to which they are indifferent. These benefits are largely, if not entirely, illusory. More to the point, he argues that the First Amendment is served by using the force of law to compel Americans to subsidize political campaigns.

 

Although Republicans have traditionally been less enthusiastic about campaign finance reform than most Democrats, caprealsmallSimpson’s view of the First Amendment is indistinguishable from notable Democratic supporters of restrictions on speech, like Russ Feingold, Dick Durbin and Sherrod Brown. Simpson was one of the bipartisan collection of politicians who signed onto an amicus curiae brief in favor of Arizona’s matching funds scheme in the Arizona Freedom Club PAC v. Bennett/McComish v. Bennett case that argued that the government has almost unlimited powers in subsidizing preferred speakers in a campaign.   He was a witness for the government in support of the McCain-Feingold law, the worst assault on the First Amendment since the Alien and Sedition Acts. In his op-ed, he states that Citizens United v. FEC established “a remarkable right of corporate personhood that I have yet to find in the Constitution,” when the decision actually recognized that, under our Constitution, the government cannot put people in jail for making a movie urging a vote against a political candidate. In other words, he is of one mind with those reformers who think “Congress shall make no law…abridging freedom of speech” means Congress can make lots of laws abridging freedom of speech.

 

It is not surprising that campaign finance reform attracts supporters from both parties. Besides protecting incumbents, many political opponents of unfettered political activity have a more personal reason for getting rid of privately financed campaigns. In his testimony in favor of the Fair Elections Now Act, Simpson stated: “I felt ugly, embarrassed [raising funds] . . . . If you talk to someone who likes to beg for money, you’re talking to a delusional man . . . . We were elected to legislate. We cannot legislate if we have to fund-raise day and night.” In other words, we need to limit speech and force Americans to fund political campaigns so that politicians do not have to sully themselves asking for money, thereby further insulating the political class from the public they are supposed to represent and serve. Of all the reasons reformers have put forth to justify their attacks on the First Amendment, however, “keeping elected officials from feeling embarrassed” is probably the absolute worst.

Attorney David Marston and former Bush-administration official John Yoo had an op‑ed in yesterday’s Wall Street Journal making the case against the White House’s efforts to force federal contractors to disclose contributions, not just to candidates, but to any group that might run political advertisements.  As Make No Law readers are aware, this is a backdoor effort by the White House to achieve by fiat what it was unable to achieve in Congress, namely, passage of the so-called DISCLOSE Act.

 

keep-out-report-1Marston and Yoo’s op‑ed is notable, not just because it makes a strong case for the unconstitutionality of the Obama administration’s actions, but as mark of how much the debate over regulation of political speech has shifted in the last decade.  When the now half-dead McCain-Feingold law was enacted in 2002, a major talking point among conservative elites was “no limits, full disclosure.”  But increasingly—and quite correctly—opinion makers are beginning to recognize the significant costs that disclosure can impose on political participation.

 

So what has changed?  Unquestionably, part of this change in elite opinion has been driven by high-profile incidents of political retaliation made possible by campaign finance disclosure.  But on top of this, we simply know more about the chilling effect of disclosure now than we did in 2002 because social scientists have, for the first time, started measuring it.  Indeed, the Institute for Justice has led the way, publishing multiple studies that examine the burdens disclosure places on grassroots political activists, including:

 

Disclosure Costs: Unintended Consequences of Campaign Finance Reform

 

Campaign Finance Red Tape: Strangling Free Speech & Political Debate

 

Locking Up Political Speech: How Electioneering Communications Laws Stifle Free Speech and Civic Engagement

 

Mowing Down the Grassroots: How Grassroots Lobbying Disclosure Suppresses Political Participation


Keep Out! Campaign Finance Laws as Barriers to Entry

 

Other political scientists have now joined this debate.  Professor Raymond La Raja of the University of Massachusetts, Amherst, recently released a working paper titled Does Transparency of Political Activity Have a Chilling Effect on Participation?  His study measured “how individuals respond differently to making campaign contributions or signing petitions when provided with a subtle cue that the information will be made public.”  His findings?  Not only does disclosure have a chilling effect on participation, but the result is particularly pronounced for small donors and women.

 

La Raja concludes that his findings “should spur policymakers to reconsider the cost-benefit tradeoffs for disclosure policy, particularly for campaign finance.”  Based on the growing number of elite voices questioning the conventional wisdom that more disclosure is always better, it seems that they might be.  Here’s hoping that judges will follow suit.