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The Supreme Court has decided not to take up the Citizens United case I wrote about Friday.
The Court basically said it doesn’t have jurisdiction to hear the case, so this wasn’t a refusal to hear the case on its merits.
The SpeechNow.org case is still making its way through the system.
In my post column today, I look at two upcoming, important free-speech cases:
Let’s face it: The 2008 election season is well under way, yet political speech remains decidedly un-free in America - held hostage to the vanity of John McCain and the cynicism of his accomplices in Congress and the media, who seek to silence their political opponents in the name of clean government.
…
Citizens United, an activist conservative group, wants relief from burdensome disclosure and disclaimers rules in ads for its documentary, “Hillary: The Movie.” While the film isn’t necessarily the most high-minded of cinematic projects (sample from the script: “She is steeped in controversy, steeped in sleaze.”), it is - as political speech - every bit as deserving of First Amendment protection as the newspapers of the early republic or the communist Daily Worker.
The other case relates to SpeechNow.org, which wants to run ads against politicians who support campaign-speech regulation. They’re aiming for irony, and will likely see their efforts to speak out against speech regulation shut down by … speech regulation.
It’s nice to see it put so forthrightly:
As I’ve been arguing for years, there is no more serious threat to our democracy.
In the New York Post today, I write up the latest outrage campaign-finance reform has visited upon free speech:
It looks like John McCain has a little explaining to do to the NASCAR set.Kirk Shelmerdine — one of the greatest pit-crew chiefs ever, most famously for the late Dale Earnhardt, Sr. — is today engaged in a less-successful second career as a driver. But to the Federal Election Commission, he’s just a reckless campaign-finance law violator.
The day after Christmas, the FEC announced that it was sending Shelmerdine a “letter of admonishment” for his actions during the 2004 presidential campaign — namely, putting a “Bush/Cheney ‘04″ decal on a panel of his car for a total of four races.
It seems the FEC sees the decal as a “contribution.” The definition of possible “contributions” is expanding rapidly — bumper stickers on celebrity cars, ads for movies (see: Michael Moore and “Fahrenheit 9/11″ during the 2004 campaign), ads for newspapers that have incidental mentions of candidates names (see: Santorum vs. Casey Senate race in 2006), and, most egregiously, out in Seattle a while back, talk on a talk-radio program against a gas-tax increase.
Next up? Political t-shirts on rock stars? Bumper stickers on celebrities’ private cars? Who knows?
All we do know is that if there’s somebody willing to complain to the FEC, innocent civilians will have to answer to federal regulators for their unsanctioned political activities.
Thank John McCain.
Comedy Central has picked up a show — originally created for Amp’d Mobile cell phones — called “Lil’ Bush: Resident of the United States.” It re-imagines the president, vice president, secretary of state and secretary of defense as grade schoolers. And, as you might imagine, it’s not exactly pro-lil’-Bush.
It’s a good thing, then, that Bush isn’t running for reelection, and that Cheney isn’t running to succeed Bush. Comedy Central and the company producing the show are certainly corporations. And the show definitely mentions the name of a candidate.
It has potential violation of McCain-Feingold written all over it. (Think I’m nuts? Michael Moore’s “Fahrenheit 9/11″ had to curtail its advertising during the 2004 campaign season for just this reason.)
(via Darcy)
In a piece today at Renew America, Wes Vernon revisits Pewgate — the massive scam that gave us campaign-finance reform.
I’ve uploaded the videos that gave us Pewgate onto YouTube here. I’ll probably put up a page with all the relevant documents sometime soon. More than a year later people are still chasing after this stuff. And more than a year later, the media outlets that turned a blind eye have kept those eyes turned.
Over at the Cato blog, John Samples points out a rather interesting new bit of terminology over at the Times, as regards campaign-finance "reform."
It seems that when new campaign-finance regulations are supported by Republicans and aimed at hurting Democrats, they are no longer "reforms" but "changes."
Yes, yes, a subtle shift. But don’t think for a second it’s an accident.
Newt Gingrich on campaign-finance "reform."
He takes note of the Wisconsin and Maine cases where grassroots groups have run up against free-speech blackout periods.
Again, it’s very interesting that a potential 2008 GOP candidate would take such umbrage to the McCain-Feingold legislation. (OK, Newt, like all conservatives, really hates CFR. But it is convenient.)
A paper in Florida shut down by campaign-finance law?
The head of New York City’s campaign-finance board, Nicole Gordon, is leaving to take a job at a private foundation.
That’s all well and good, but just what criteria does the Times use to call NYC’s campaign-finance program "effective"? The campaign-finance system in New York City is an absolute joke and a fraud. The system spends millions of taxpayer dollars to make the city’s local elections more "competitive," and yet incumbents stand a better chance of being gunned down in broad daylight than being defeated in a bid for reelection.
The system is nothing but welfare for politicians and political consultants. And even if one doesn’t take my admittedly extreme view of the situation, there’s no justification for praise on this occasion.
Effective? What’s effective?
Brad Smith says the battle for online freedom of speech isn’t over yet.
He is, of course, correct. As he says, the enemy here is relentlessly hostile to free speech. No battle is ever won. Just delayed.
In my N.Y. Post column today, I look at a case out of Maine, where McCain-Feingold is shutting down grassroots lobbying.
Essentially, a Christian group that wants to lobby on the Marriage Protection Amendment can’t run its ads because they mention Sen. Olympia Snowe, who faces an uncontested primary in June.
According to a panel of federal judges, it’s illegal to criticize Snowe because:
"The advertisement might have the effect of
encouraging a new candidate to oppose Sen. Snowe, reducing the number
of votes cast for her in the primary, weakening her support in the
general election, or otherwise undermining her efforts to gather
support, including by raising funds for her re-election."
God forbid.
I’m not sure why Ramesh feels moved to defend John McCain’s statements on the First Amendment, but over at The Corner, he writes this:
McCAIN AND FREE SPEECH [Ramesh Ponnuru]
Some conservatives are criticizing the senator for saying, on the Imus show two weeks ago, "I would rather have a clean government than one where quote First Amendment rights are being respected that has become corrupt. If I had my choice, I’d rather have the clean government." I’m no fan of McCain’s campaign-finance regulations, or of his vote several years ago for a constitutional amendment to modify the First Amendment to facilitate such regulations, or his remark a few years ago that he would outlaw negative ads if he could find a constitutional way to do it. And that past colors our reception of this latest quote, as it should. But considered by itself, it doesn’t seem quite so outrageous as it is being described. Presumably the reference to "quote First Amendment rights" was meant to suggest that McCain doesn’t believe that his preferred political reforms implicate real First Amendment rights. He wasn’t expressing disdain for the First Amendment as he understands it, but disagreement about what the First Amendment means. Conservatives (especially in the past) have often advanced narrower readings of the First Amendment’s speech protection than liberals, and would have been annoyed by the charge that they were therefore against the First Amendment.
Ramesh is certainly right to flag McCain’s use of the phrase "quote First Amendment rights." But did many people mistake McCain’s meaning the first time around? The fact that McCain doesn’t consider political speech a core First Amendment right is the nut of the whole problem.
Of course McCain respects the First Amendment as he understands it (whatever the hell it is he thinks it protects). But the fact that the senator doesn’t understand one of the most basic principles of our constitutional order — and seemingly fails to do so because he’s blinded by the perceived rightness of his own views on money and politics — is central to why he should probably never be president.
Take a spin over to www.just6dollars.org for discussion of one of the worst perennial ideas in American politics: full public financing of campaigns.
It’s what we have in New York City. And by God are our elections clean! Squeaky!
Yep! No problems here!
Over at Skeptic’s Eye (where regular blogger Allison Hayward is out of the country), former FEC commissioner Brad Smith and anti-campaign-finance-regulation-progressive (there’s a mouthful) Bob Bauer are having a fascinating discussion of why the Federal Election Commission is broken. It’s not, as John McCain & Co. would tell you, because the agency is "captive" to the very parties it regulates.
Instead, both agree that the agency is captive to a far more dangerous crowd: the campaign-finance-regulation lobby.
To quote from Bauer’s most recent installment:
First: the reform community is an interest organized solely for the
purpose of monitoring, enforcing and seeking change in the law. The
resources they devote to this purpose vastly exceed the sums that
candidates and political organizations will spare from budgets reserved
for their core missions.Second, the reform organizations
active in law enforcement and law-making efforts control press
coverage. To the extent that the FEC is reached by public appeals or
pressure, it is largely through the press. On any given day, a member
of the Commission or the Office of General Counsel may or may not hear
from a candidate or party, in pleadings or testimony, but she will scan
the papers and read the editorial or op-ed output.
This is undoubtedly true. Every time an enforcement or regulatory issue comes before the FEC, like clockwork the Washington Post will chime in with an editorial ghost written by Democracy 21.
What’s even worse about this whole system is that the process is practically designed to be used as a political weapon, as opposed to a regulatory one. To quote Brad Smith’s most recent entry:
The complaint process is one that actually provides an incentive to
file frivolous complaints. The complainant typically benefits merely by
filing the complaint, and rarely gains any added benefit from the
resolution of the complaint. This latter point is true even if the case
goes against the respondent, since the resolution will usually come
after the election, a happenstance dictated in most cases by even the
most minimal regard for due process – such as allowing time for an
answer and an investigation. Complainants bear none of the cost of
investigation or litigation, all of which is thrown onto the
government. These factors provide a strong incentive to file weak or
frivolous complaints, aiming less at vindicating any public right than
at harassing political opponents. And this in turn creates an incentive
to sensationalize the charges.
These are two of the sharpest people in the country on the problems with campaign-finance regulation. Some of it’s a bit dense (which is precisely the intent of the people trying to shut you up). But anyone concerned with the survival of free speech in the place where it matters most — in the midst of political campaigns — should check out the discussion.
I’ve been remiss in not linking to this City Journal article by Brian C. Anderson sooner — not least of which because it quotes from my campaign-finance-lobby reporting extensively.
It also hits some other interesting topics, including the liberals who want to bring back the "fairness doctrine." This, of course, is the doctrine stating that broadcast outlets must balance every minute given to conservative opinions with a minute given to liberal ones. The idea is essentially to force more liberal opinions onto the air, regardless of the market for them — or, alternately, to get networks to just pull conservatives and forget about broadcasting opinion altogether.
The removal of the fairness doctrine in the 1980s brought us conservative talk radio. Now that Air America has proved unable to rival Rush & Co., some people would just rather shut all speech down.
As is typical.
A modest victory for free speech.
Citizens’ groups that want to run ads about congressional votes during a campaign season can now at least challenge court decisions that strip them of their First Amendment rights.
How generous of the Supreme Court.
UPDATE: The Lonely Centrist chimes in here.
More Pew money to influence money in politics.
Aside from the usual issue of these reformers arrogantly assuming that their money is the only clean money in politics, Robert Bauer asks just what all of Pew’s money has bought. Pew claims its cash has bought increased esteem for the political process.
Bauer disagrees:
What is the evidence that public trust in the political process has
increased as a result of these reforms? There is none, because it has
not. Confidence in the nation’s leadership is very low; Members of
Congress, separated from soft money, rank well below all types of
leaders. … Public "participation" has not risen appreciably by any known or
accepted measure. There is no reason to believe that turnout levels
rise or fall with the tides of campaign finance reform; and turnout,
save for Presidential turnout in certain of the hotly contested states
in 2004, remains weak in federal, state and local elections.
Right, as always.
The Skeptic hits one of my favorite topics: money in the movement to get the money out of politics.
This is apropos of nothing, but whenever I hear conservatives (especially our Dear Leader) talk about "activist judges," I just can’t help but flash back to March 27, 2002 (the day he signed McCain-Feingold into law):
However, the bill does have flaws. Certain provisions present serious constitutional concerns. In particular, H.R. 2356 goes farther than I originally proposed by preventing all
individuals, not just unions and corporations, from making donations to political parties in connection with Federal elections.I believe individual freedom to participate in elections should be expanded, not diminished; and when individual freedoms are restricted, questions arise under the First Amendment.
I also have reservations about the constitutionality of the broad ban on issue advertising, which restrains the speech of a wide variety of groups on issues of public import in the months closest to an
election. I expect that the courts will resolve these legitimate legal questions as appropriate under the law.
Leadership.
Here’s my column from yesterday’s New York Post. In NYC, we pay lots of money to make our elections “more competitive.” Specifically, we give that money away to politicians.
Well, incumbents never lose — despite our generosity — and the people who get the public funds just pocket them by giving the money away to family members and other associates. Another big win from the idiots who’ve brought us “clean” government.
Later this month, New York City’s political pooh-bahs will get together to discuss ways of improving our public campaign-funding system.
Here’s an idea: Get rid of it.
In the 2005 election cycle, city taxpayers doled out more than $24 million to pay for political ads, consultants, get-out-the-vote-operations and mailings to voters. What did we get for all this expense?
According to The Campaign Finance Board’s Web site, we write politicians checks out of the public treasury to make our elections more “competitive” and to make sure that our leaders aren’t beholden to so-called “special interests.”
Judging by those criteria, we got shafted.
Out of 50-plus races this year — for City Council, mayor, public advocate, comptroller and the five borough presidencies — just one incumbent went down to defeat.
And that incumbent was City Council member Allan Jennings — whom the council had censured for sexually harassing two female subordinates. And he lost to the guy who’d had the seat before him — Thomas White Jr., who had the backing of the Queens Democratic machine. Chalk one up for “turnover.”
Of course, the politicians themselves would have to get rid of this ridiculous, corrupt system. And they have, shall we say, the wrong incentives in this situation.
In my last TCS article, I said it wasn’t worth celebrating that the FEC had — in its infinite wisdom — deigned to grant the Web site Fired Up! the press exemption.
It seems that at least two FEC commissioners believe that everyone on the Internet should remain under the tightest level of suspicion. You never know when some unauthorized speech might slip through.
Allison Hayward has more.
My latest from TCS:
The last few weeks have seen some ostensible victories for the First Amendment against the evils of campaign-finance regulation. Celebrants should take a step back. As our country moves further and further toward government licensing of the press, the fact that the authorities are currently being generous with the licenses isn’t exactly reason to shout.
The Online Freedom of Speech Act, which The Post endorsed here, failed the House. It had a majority, but not the two-thirds needed under the rules.
Here’s an account from Allison Hayward. Bob Bauer lays out why this is a really big setback for freedom of speech on the Internet.
I firmly believe that the speech-regulation coalition is cracking (as the House vote shows) and that real progress will eventually be made in rolling back these laws. But far more work is needed.
Michael Kinsley wonders why The New York Times thinks journalists should get more First Amendment rights than other citizens.
Snip:
The Times believes that its First Amendment right to speak includes a right (for journalists only) not to speak when subpoenaed in a criminal investigation. Meanwhile, it cannot see how a right to speak includes the right to spend money on speech.
Hmmm… Liberals catching on to the faulty logic of campaign-finance reform.
I love it.
McCain ignores his own law. Again.
On Monday, I’ll be one of two speakers at a little dinner put on by my Post colleague, Robert George. I’ll be arguing in the negative on the question of whether mandatory spending limits on campaigns would be permissible or desirable.
This issue is, of course, before the Supreme Court this term, as it takes up whether Vermont’s campaign-finance system, which includes mandatory spending limits, is permissible under the Constitution.
At the heart of the matter, as with all campaign-finance arguments, is the question of whether money is speech. That question was addressed eloquently and forcefully by Justice Scalia in his dissent from McConnell v. FEC, and so the text of that dissent is reproduced after the jump.
For background on how the modern campaign-finance-reform lobby (and, yes, it’s a lobby, not a movement) came to exert so much influence, and how it passed McCain-Feingold back in 2002, see my piece here.
Here, free-speech champion and anti-reform legend Brad Smith lays out some of the faulty assumptions behind campaign-finance reform and the perverse consequences that follow from “reform.” (One of those consequences is millionaire and billionaire candidates like Michael Bloomberg in New York City, whose success has led reformers in Gotham to start looking at limits on expenditures.)
There’s a ton more to be found on blogs like Skeptic’s Eye, written by Allison Hayward, who worked under Brad Smith at the FEC.
Also, no one should neglect Bob Bauer’s Web site. Bauer’s a liberal/progressive who’s realized, well ahead of his fellow travelers, that campaign-finance regulation is a dead end.
Of all the budget cuts suggested by the pork-busters in the House, the elimination of the presidential public financing system ought to be among the least controversial. It’s a waste of money, it’s welfare for politicians and it has not moved America one inch, vote or dollar closer to the “clean” elections campaign-finance lobbyists claim they want.
The usual crew has sent the usual outraged letter to Congress. The always delightful Allison Hayward (formerly of the FEC, currently of somewhere hopefully far less dreadful) has some fun picking it apart here.
Here’s my most recent Post column, in which a longtime supporter of campaign-finance reform argues that the FEC should keep its hands off the Web:
The campaign-finance-reform lobby is launching a new attack on one of our most basic rights.
For more than 200 years, Americans have had the right to operate printing presses without having to get a license from the government. The First Amendment was written to protect against just such depredations of freedom of speech, hallmarks of monarchical tyranny.
…
Take the case of Fired Up. The network of progressive, Democratic-leaning Web sites is petitioning the Federal Election Commission for protection from the nation’s campaign-finance regulations.
The FEC has ruled that big-media companies like The New York Times, The Washington Post, Fox News, CNN, CBS, etc. enjoy what’s called a “press exemption” from McCain-Feingold — allowing them to support or attack candidates without being prosecuted for making illegal corporate campaign contributions. But it has yet to grant any such protection to blogs and other Web sites not considered part of the traditional media.
The “cleanies” want to make sure they never get it. Thus, the country’s leading campaign-finance-reform groups — Democracy 21, the Campaign Legal Center and the Center for Responsive Politics (all recipients of millions of dollars from left-wing foundations) — are lining up against Fired Up.
“There’s a supreme irony in their viewpoint,” Fired Up founder Roy Temple told me yesterday.
Temple worked alongside Gov. Mel Carnahan in Missouri to pass campaign-finance reform in that state, and he worked with Sen. Jean Carnahan (the governor’s widow) to pass McCain-Feingold. So, he’s no anti-campaign-finance-reform fanatic. But he believes the ‘Net has the power to be more important than any reform.
“Political money is like water, it will find the path of least resistance,” he said. “The more we have a vibrant civic space on the Internet, you will ultimately do more to rebalance the political calculus in this country than any effort to try to control political money.”
Fired Up! America can be found at the link, and that site has links to some state sites.
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