Free Speech Under Attack
If we are to remain a free people, we need the foundation of the First Amendment. Free Speech guarantees every individual the freedom to express private opinions and beliefs publicly. Without public discourse and the freedom of associations, we will lose the greatest gift from our founding fathers.
In the New York Times last week, Commissioner Ellen Weintraub of the Federal Election Commission penned an op/ed that proposed yet another regulatory scheme to undo the First Amendment ruling in Citizens United. In that case, the Supreme Court ruled that corporations and unions cannot be prohibited from spending money to speak out about candidates for public office. Corporations sometimes have a lot of money, so the campaign finance lobby believes the ruling was unfair because, as Weintraub repeats, corporations can “drown out” the “voices of citizens” by spending it on speech. In this latest volley, Weintraub argues for an expansive disclosure regime, followed by prohibitions, that would prevent corporations with foreign ownership from enjoying the fruits of Citizens United.
Unions don’t necessarily get a pass from the speech czars, but have a strange tendency to be absent from reformist rhetoric, despite exercising what one can easily call “outsize influence” in elections. Weintraub’s piece is, unfortunately, no exception to this omission, though unions pose the same danger of foreign influence that Weintraub aims to cure. Furthermore, the consequences of her latest proposal would likely hit unions as hard as corporations.
Buckley v. Valeo is a Supreme Court case that was decided on January 30, 1976. It is a case to which all campaign finance law must answer. The Court undertook a comprehensive review of the Federal Election Campaign Act and struck down or modified numerous parts of the law to conform to the First Amendment. Citizens United v. Federal Election Commission has drawn the most ire of the campaign finance “reform” lobby in recent years, but in the last year or so it has practically become a weekly hot-take to acknowledge that overturning Citizens United is but a small piece of the reformist agenda. That is, to get free speech out of the money-in-politics debate, one must also reverse Buckley.
The campaign finance reform lobby continues to favor expanding and vigorously enforcing campaign finance disclosure. Although it has found little success at the federal level in recent years—in large part thanks to a principled bloc of commissioners at the Federal Election Commission—many states have expanded disclosure to require groups of citizens to register and regularly reporting with the government to engage in many forms of political speech. Since the Supreme Court has shown no interest in considering recent broad or narrow challenges to disclosure regimes, we are in a bit of a nationwide free-for-all. Fortunately, as some states expand disclosure, in some courts a long-recognized protection against including de minimis spending within disclosure’s reach is alive and well.
After the unfortunate passing of Justice Antonin Scalia on February 13, the U.S. Supreme Court is left with eight justices who sometimes split along generalized “liberal” and “conservative” lines. In the campaign finance area, this is a fair characterization. McCutcheon v. Federal Election Commission (“FEC”) (2014), Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett (2011) and Citizens United v. FEC (2010)—among the most recent of the Court’s campaign finance decisions—were each decided 5-4 with Justice Scalia joining Chief Justice Roberts and Justices Kennedy, Alito and Thomas in the majority. Each decision held that the First Amendment overruled or curtailed the laws challenged in each case. With leadership in the United States Senate presently resisting confirmation hearings for whomever President Obama may appoint to replace Justice Scalia (with which I’m sympathetic), campaign finance cases may end in 4-4 splits, unable to achieve a majority ruling. This would allow rulings at federal courts of appeal to stand, even if they are contrary to previous rulings. One pending case at the Court, McDonnell v. United States, is not specifically a campaign finance case but may have serious implications on the use of criminal law in campaign finance.
On January 21 a three-judge panel on the United States Court of Appeals for the District of Columbia Circuit issued a unanimous opinion upholding a Federal Election Commission (FEC) rulemaking from 2007 and reversing a district court ruling that held the rulemaking violated administrative law. The Van Hollen v. FEC case is not necessarily over, but the strong opinion from Judges Brown, Sentelle and Randolph shows, refreshingly, that the broader case of campaign finance disclosure is certainly not over. To some, privacy and the difficulties of compliance with all-encompassing disclosure are still important constitutional limits to campaign finance regulation, a tension that the United States Supreme Court must inevitably address.
When Jeb Bush sat down for an interview on “Morning Joe” on Tuesday, he probably did not expect his words to be used to accuse him of a crime. But continuing its mission of protecting democracy by—with just a slight bit of contradiction—making every effort to punish the people participating it, the Campaign Legal Center is on the case. Per usual, Campaign Legal is all bark and no bite, achieving little beyond perhaps a miniscule influence on the election cycle thanks to news coverage of its woof. But their bloodlust, ineffective as it is, deserves rebuke, for if it became actual policy it would draw more from Orwell than any democratic platitude.
Last week the Wisconsin Supreme Court ruled against a motion for reconsideration of its July opinion in the case In the matter of the John Doe Proceeding. In its July ruling, the court upheld the quashing (rejection) of a subpoena that prosecutors used to seize thousands of documents from numerous politically engaged organizations and individuals under a broad allegation of illegal coordination with Governor Scott Walker and his campaign. The latest ruling is an effort to clarify the July decision, requiring prosecutors to return the seized property to its rightful owners and destroy copies except for those entrusted to the clerk of the Wisconsin Supreme Court. The clerk is meant to hold the copies in the event one of the prosecutors in the case (aside from lead prosecutor Francis Schmitz, who the court ruled was illegally appointed) pursues an appeal to the United States Supreme Court. Whether or not there is another appeal, the Wisconsin ordeal appears to be winding down, and with it campaign finance coordination regulation takes a very big—and much needed—step back.
Mid-November is always a special time for liberty-loving lawyers, as the Federalist Society hosts its annual National Lawyers Convention here in Washington, D.C. The convention offers many insightful panel discussions on a variety of legal and political topics. I was honored to join a panel on anonymous speech with Andrew Grossman from the law firm Baker Hostetler, Paul S. Ryan from the Campaign Legal Center, and Hans von Spakovsky from the Heritage Foundation. We debated anonymous speech in the context of political contributions and sources for news reporters. I argued in favor of strong protection for confidential news sources, and then joined the discussion for political contributions.
Last week, Kentucky gubernatorial candidate Matt Bevin learned that an ordinary campaign e-mail might have violated state campaign finance laws. When most Americans think about campaign finance, they think about cleaning up corruption and ending shady deals. But instead these laws weave regulatory mazes that can trip up even experienced candidates.