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Campaign Regulation Debate Renewed, Part 2

The charges against Michael Cohen have renewed public interest in campaign finance regulation. The essential questions: Do campaign regulations accomplish their stated goals? Do they violate the First Amendment? 

The expertise required to comply with reporting requirements and other campaign regulatory measures gives political professionals and party bosses an advantage over novices running for office. In some ways, the gauntlet of regulatory compliance and restrictions on fund raising makes American politics resemble that of ancient Rome, where leadership was restricted to a small field of “great men” with the personal resources to run.

As noted by the CATO study,

“Limitations on contributions and spending, by definition, require significant regulation of the campaign process, including significant reporting requirements as to amounts spent and sources of funds. Such regulation creates opportunities to gain an advantage over an opponent through use of the regulatory process, and litigation has now become a major campaign tactic. Typically, regulation favors insiders already familiar with the regulatory machinery and those with the money and sophistication to hire the lawyers, accountants, and lobbyists needed to comply with complex filing requirements. Indeed, there is some evidence that campaign enforcement actions are disproportionately directed at challengers, who are less likely to have staff familiar with the intricacies of campaign finance regulation.

Perhaps those most likely to run afoul of campaign finance laws are unaffiliated individuals engaged in true grassroots activities. For example, in 1991 the Los Angeles Times reviewed Federal Election Commission (FEC) files and found that 62 individuals had violated FECA contribution limits by making total contributions of more than $25,000 to candidates in the 1990 elections. As the Times noted, though many of these 62 were “successful business people” who ‘usually have the benefit of expert legal advice on the intricacies of federal election laws,’ the next largest group of violators consisted of ‘elderly persons . . . with little grasp of the federal campaign laws.’ Political involvement should not be limited to those with “the benefit of expert legal advice on the intricacies of federal election laws.”

Supporters of campaign restrictions allege that they are seeking to reduce the influence of money in politics.  In reality, their goals fall into two categories:

First, incumbent protection.  By establishing complicated and arcane rules concerning filing reports, with significant penalties for any less than perfect compliance, rather than simple requirements that the names of donors and the amounts provided (filed following the end of a campaign) be provided, they impose significant financial and legal burdens on challengers. Absent the access to professional assistance incumbents possess, citizens seeking to run must spend scarce resources and even more scarce time running a legally hazardous maze of requirements established by and for incumbents.

Second, partisan advantage. The Citizens United  decision held, as summarized by ScotusBlog,  that  “ Political spending is a form of protected speech under the First Amendment, and the government may not keep corporations or unions from spending money to support or denounce individual candidates in elections. While corporations or unions may not give money directly to campaigns, they may seek to persuade the voting public through other means, including ads, especially where these ads were not broadcast.” Many on the left of the political spectrum believe that this upset advantages they long held, and have sought to enact legislation and regulation to restore that advantage.

There have been measures, some of which have passed and others blocked, that have sought to reduce the effectiveness of the First Amendment in an attempt to regain that advantage.

The causes, which can lead to male impotence is quite heavy for many men to bear and thus opt to live with the condition rather than seek medical help. viagra 100mg for sale This fear often made consumers to keep a women viagra order distance from various sex pills. An outdoors or sample viagra for free activity web site could review the latest climbing books and then use their associates program to link to the same item. Many of these toxins can mimic hormones and cause specific signs pfizer viagra tablets http://valsonindia.com/wp-content/uploads/2016/07/valson-annual-report-15-16-notice.pdf and symptoms. 1. One extremist measure that failed was a piece of legislation introduced by Senator Charles Schumer (D-NY) to initiate the constitutional amendment process in order to limit the effectiveness of the First Amendment.  The proposed limitation on free speech rights would have excluded paid political speech from constitutional protection.

A radical legislative item has been approved by the New York State Legislature. The measure openly headlines its goal as “Enacting the nation’s strongest protections to combat Citizens United.” Among other mandates, it imposes a requirement of across the board disclosure of donors and staff, and provides a first-ever disclosure requirement for “political consultants.” At first glance, that appears comparatively innocuous. However, the devil is in the details. According to the legislation’s language, almost anyone who has ever had any relation or association with anyone even remotely connected to a campaign would have to be disclosed. In essence, it criminalizes anyone with an active interest in politics. Further, it substantially intimidates anyone seeking to provide summaries of their perspectives on the issues or advice on how to present those views from speaking with a candidate in any substantive manner. Independent advocacy groups promoting anything from environmental protection to benefits for veterans would be handicapped.

The details of the law provide a chilling attack on First Amendment rights of freedom of speech and association, in a manner that clearly helps incumbents and handcuffs challengers. Even nonpartisan organizations that openly disagree with particular policies of elected officials would be subjected to onerous reporting requirements merely for stating their beliefs, while incumbents could continue to speak their views unencumbered.

It gets even worse.  Assume you are a motorist who has become tired of replacing tires destroyed by potholes not repaired by the state, and you are angered that your elected official has done nothing to address the problem. You, acting entirely on your own, decide to air your grievance on social media, and perhaps write a few letters to newspapers.  Under the law’s definition, you should have registered as an independent committee, subject to all the red tape and legal requirements that implies. Clearly, that prevents private citizens not wishing to be subjected to penalties from criticizing their errant local official, or even seeking to organize friends and neighbors to protest.

The anti-First Amendment drive involves regulation as well as legislation. Previously, The Democrat members of the Federal Election Commission attempted to impose a penalty on one news station that had been uniformly critical of the Obama Administration, based on a complaint from an obscure candidate that he wasn’t invited to a televised debate. Of course, those same commissioners never considered imposing similar sanctions against the Democrat National Committee, which had inappropriately tilted towards Hillary Clinton in her primary effort against Bernie Sanders. The attempt was blocked by Republican Commissioners.

The U.S. Supreme Court has repeatedly held, even long before the Citizens United case, that campaign contributions and expenditures are protected by the First Amendment. Legalities aside, common sense in a free nation dictates that public statements made by citizens or organizations disagreeing (or agreeing) with their elected officials is a vital activity.

The numerous attempts to use campaign regulation, which should reasonably only consist of open disclosure of all contributions, as a vehicle to immunize incumbents and “establishment” favorites from criticism, and to tilt the balance of power in a partisan manner, is an affront to the entire concept of a free people.

Illustration: Pixabay

 

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Campaign vs. Free Speech Continues

Democrat members of the Federal Election Commission (FEC) have voted to punish Fox News,  which President Obama has frequently targeted due to the fact that the organization strays from the traditionally pro-left wing bias of the other major networks.  The matter involved the manner in which Fox handled debates. Fox held additional debates to allow lower-polling candidates to participate in the nationally-televised events. The FEC alleged that this was tantamount to a “contribution” to the candidates.

In an interview with the Washington Examiner, Republican FEC commissioner Lee E. Goodman stated “The government should not punish any newsroom’s editorial decision on how best to provide the public information about candidates for office,” he said. “All press organizations should be concerned when the government asserts regulatory authority to punish and censor news coverage.”

The hypocrisy of the Democrat commissioners is evident in the fact that they acted against a move to expand fair coverage of a broad range of candidates while ignoring acts by the DNC to tilt the primary process in favor of one candidate, Hillary Clinton, in a manner that substantially disadvantaged rival Bernie Sanders. An Observer review of the matter noted “The Democratic National Committee rigged the Democratic primaries to ensure Hillary Clinton would win the presidential nomination. Evidence suggesting this claim is overwhelming, and as the primaries progress, the DNC’s collusion with the Clinton campaign has become more apparent.” Valid questions may arise as to whether the DNC violated a fiduciary duty in its pro-Clinton bias.

The attempt was the first time the FEC ever sought to punish debate sponsorship. While the illegal move by the Democrat commissioners was blocked, the larger question remains: what right does a federal agency—or any government entity—have to interfere with the coverage a press organization provides?

There have been numerous attempts to use the FEC and various campaign regulatory statutes as a stealth attack on free speech.  Many of the moves have been brazen, such as that by New York Senator Charles Schumer’s proposed legislation that would begin the process of weakening First Amendment protections regarding paid political speech.  Democrat members of the FEC have also sought to bring certain web sites under its jurisdiction.

Democrats, who formerly held a broad advantage in campaign finance by their close association to union leadership, have furiously sought to regain that advantage after the playing field was levelled in the wake of the Citizens United decision, which ruled that political spending is protected speech under the First Amendment.

Throughout President Obama’s tenure in office, significant attempts have been made to attack free speech:

  • His commissioners on the Federal Communications Commission have sought to place federal monitors in newsrooms;
  • His attorney general has openly considered criminal prosecution of anyone disagreeing with his views on climate change;
  • He has moved to place the internet under international control (which would permit censorship,);
  • The Internal Revenue Service has been used a bludgeon against groups opposing White House policies; and
  • The Justice Department seized telephone records of Fox news reporters.

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In 2014, the Society of Professional Journalists  protested in a letter to the White House about “politically driven suppression of news and information about federal agencies. Recent research has indicated the problem is getting worse throughout the nation, particularly at the federal level. Journalists are reporting that most federal agencies prohibit their employees from communicating with the press unless the bosses have public relations staffers sitting in on the conversations. Contact is often blocked completely. When public affairs officers speak, even about routine public matters, they often do so confidentially in spite of having the title “spokesperson.” Reporters seeking interviews are expected to seek permission, often providing questions in advance. Delays can stretch for days, longer than most deadlines allow. Public affairs officers might send their own written responses of slick non-answers. Agencies hold on-background press conferences with unnamed officials, on a not-for-attribution basis. In many cases, this is clearly being done to control what information journalists – and the audience they serve – have access to. A survey found 40 percent of public affairs officers admitted they blocked certain reporters because they did not like what they wrote.”

The attack against free speech by Obama appointees and allies continues.

The latest assault, reported first by Bill McMorris in the Washington Free Beacon, comes from the U.S. Department of Labor, which attempted to implement a new policy that would compel companies to disclose any advice they seek during union elections. Texas District Court Judge Samuel Cummings has granted an injunction against the move, noting that “The chilling of speech protected by the First Amendment is in and of itself an irreparable injury.”

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Incumbents Retain Unfair Advantages in Elections

Elected officials at all levels have been receiving dismal approval ratings from the public.  Despite that, incumbents, from the President down to local city officials, continue to be re-elected at extraordinarily high rates.

A prime example can be seen in the New York State Legislature, which, despite numerous scandals, has a 96% re-election rate.

How does this occur?  Many believe it is due to the unfair advantages provided to incumbents.  According to a Rasmussen poll,  68%  of those queried think election rules are rigged for Incumbents.

Gerrymandering is among the most well known.  The ability of incumbents to directly shape the districts they run in certainly provides an exceptional advantage.  But that is only part of the problem.  There are numerous other practices that tip the scales in favor of incumbents. Some are unavoidable, but many can be eliminated.
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Incumbents, of course, can more easily garner publicity through their regular activities. They tend to receive more invitations to speaking events, providing them with greater opportunities to directly interact with groups of voters. This can be counteracted by including challengers in public forums in the months immediately preceding an election.

The practice of allowing incumbents to use government funds to print and distribute newsletters which feature their successes or activities essentially provides a voter-paid vehicle for what in reality is campaign literature. There should be a blanket prohibition on this practice for at least three months before election day. Indeed, in the era of the 24 hour news cycle and the internet, it can legitimately be asked whether snail-mail newsletters are necessary at all.

Arcane and complicated campaign filing requirements (which may have been personally approved by the incumbent) tend to drain the resources and time of challengers in a much larger degree than they do for elected officials, who have the staff and financial resources to deal with the problem. It is highly doubtful that the founding fathers envisioned an electoral system in which candidates had to answer to a collection of bureaucrats to practice their right to run for office.

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2 Senators Move to Limit First Amendment

Campaign finance regulations are a tool frequently used by incumbents to prevent challengers from raising the financing they need to counter the free publicity an incumbent receives. It is also a nifty means to discourage ordinary citizens from thinking about running in the first place, due to the complications and potential fines that could be levied if complex reporting rules are not followed.

The U.S. Supreme Court has become wary of the infringements these procedures impose on First Amendment rights, and in recent decisions, such as the McCutheon case, have ruled against them.

Now, two Democrat senators, Tom Udall of New Mexico and Charles Schumer of New York, are attempting to circumvent the Supreme Court by proposing an amendment that would enshrine this gimmick in the U.S. Constitution.

The Democrats have led the charge for the anti-free speech measures since the U.S. Supreme Court held, in the Citizens United case, that these restrictions violated the First Amendment.

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Over the past several years, the First Amendment has come under attack from several different angles.  The Obama Administration’s decision to surrender control of the internet to an international grouping containing pro-censorship nations is among the most profound. Legislation penalizing religious institutions for following their conscience on insurance matters has been enacted. The FCC’s attempt to intervene in the editorial decisions of news editors is another example.

Together, the ongoing assault on the most basic of American freedoms is exceptionally troubling and wholly unacceptable.

Many totalitarian nations have wonderful sounding broad statement about freedom of speech and conscience in their general constitutions, but limit that right through a host of bureaucratic laws.  This is precisely what is beginning to happen in the United States.

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Have Campaign Regulations Helped or Harmed American Elections?

To many, the regulation of political campaigns is a matter of deepest principle, an essential tool in preventing corruption. To others, it is an intense and unacceptable violation of the First Amendment, an attempt by bureaucrats to hinder candidacies that don’t have the support of party bosses and other powerful elites.  Critics of the concept point to the success of ultra-rich candidates who gain an edge since they can finance their own elections without dealing with campaign restrictions on donations.

A Congressional Research Service Report to Congress described the dynamic tension:

“Campaign finance regulation invokes two conflicting values implicit in the application of the First Amendment’s guarantee of free political speech and association. On the one hand, political expression constitutes “core” First Amendment activity, which the Supreme Court grants the greatest deference and protection in order to “assure [the] unfettered interchange of ideas for the bringing

about of political and social changes desired by the people.”

On the other hand, according to the Court in its landmark 1976 decision, Buckley v. Valeo, an absolutely free “political marketplace” is neither mandated by the First Amendment, nor is it desirable, because when left uninhibited by reasonable regulation, corruptive pressures undermine the integrity of political institutions and undercut public confidence in republican governance. In other words, although the Court reveres the freedoms of speech and association, it has upheld infringements on these freedoms in order to further the governmental interests of protecting the electoral process from corruption or the appearance of corruption.”

 MAJOR CHANGES HAVE OCCURRED RCENTLY

 Legal and legislative wrangling over campaign regulation has been particularly active since 2002, when Congress considerably altered campaign finance law in the Bipartisan Campaign Reform Act. The recent study, “The Constitutionality of Campaign Finance Regulation: Buckley v. Valeo and its Supreme Court Progeny” notes:

“The Supreme Court’s 2010 ruling in Citizens United v. FEC and a related lower-court decision, SpeechNow.org v. FEC, arguably represents the most fundamental changes to campaign finance law in decades. Citizens United lifted a previous ban on corporate (and union) independent expenditures advocating election or defeat of candidates. Speech Now permitted unlimited contributions to such expenditures and facilitated the advent of super PACs. Although campaign finance policy remains the subject of intense debate and public interest, there have been few legislative or regulatory changes to respond to the 2010 court rulings. This report considers these and other developments in campaign finance policy and comments on areas of potential conflict and consensus. Legislative activity to respond to the rulings has focused on the DISCLOSE Act, which passed the House during the 111th Congress, and was reintroduced during the 112th and 113th Congresses (H.R. 148). Recent alternatives, which include some elements of DISCLOSE, include 113th

Congressional bills such as Senators Wyden and Murkowski’s S. 791, or proposals that would require additional disclosure from certain 501(c) groups.”

The recently released 5 to 4 Supreme Court decision in the matter of McCutheon et al v. Federal Elections Commission complies with the view that attempts to interfere in the electoral process in ways not specified by the Constitution must be carefully screened to insure that they do not violate the First Amendment.

The decision is consistent with the 1976 decision in Buckley v. Valeo: “The concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.”

Chief Justice Roberts delivered the decision, noting that corruption would be held in check by limiting how large a single donation could be.

In its 5-4 decision, the Court held that “The right to participate in democracy through political contributions is protected by the First Amendment, but that right is not absolute.  Congress may regulate campaign contributions to protect against corruption or the appearance of corruption…It may not, however, regulate contributions simply to reduce the amount of money in politics, or to restrict the political participation of some in order to enhance the relative influence of others.”

That part of the decision—stressing that campaign regulations cannot be used to enhance the influence of some at the expense of others– is of extraordinary importance. Although the McCutheon case involves the question of aggregate limits on individual political contributions, that part of the decision may be seen as a cautionary note that the growing environment at the federal, state and local levels of campaign regulation may be violative of free speech rights.

HAS CAMPAIGN REGULATION HELPED OR HURT?

Research indicates that campaign regulation efforts have not achieved the goal of reducing the influence of money in politics.
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A study by the CATO institute found that “…there is no serious evidence that campaign finance regulation has achieved or will achieve its goals of reducing the influence of money, opening up the political system, and lowering the cost of campaigns.  Indeed, since the 1974 amendments to the Federal Election Campaign Act, spending has risen sharply, the number of political action committees and the amount of PAC spending are up, and incumbents have increased both their election rate and the rate at which they outspend their challengers.”

Campaign regulation, particularly in the distribution of public funds to aid campaigns, has been abused in a number of ways. In some localities, New York City being a significant example, local Campaign Finance Boards have used their authority to heavily and unlawfully influence the outcome of elections and enhance the power of political bosses.  In one extraordinary example, a candidate for New York City Council was a former State Assemblyman who had challenged the powerful Assembly Speaker frequently criticized for his iron rule and conflict of interest activities. The candidate was clearly not a favorite of the city’s political establishment. A highly irregular application of an ex post facto regulation  was devised to deprive the candidate of funds, and to extract a penalty as well.

The expertise required to comply with reporting requirements and other campaign regulatory measures gives political professionals and party bosses an advantage over novices running for office. In some ways, the gauntlet of regulatory compliance and restrictions on fund raising makes American politics resemble that of ancient Rome, where leadership was restricted to a small field of “great men” with the personal resources to run.

As noted by the CATO study,

“ Limitations on contributions and spending, by definition, require significant regulation of the campaign process, including significant reporting requirements as to amounts spent and sources of funds. Such regulation creates opportunities to gain an advantage over an opponent through use of the regulatory process, and litigation has now become a major campaign tactic. Typically, regulation favors insiders already familiar with the regulatory machinery and those with the money and sophistication to hire the lawyers, accountants, and lobbyists needed to comply with complex filing requirements. Indeed, there is some evidence that campaign enforcement actions are disproportionately directed at challengers, who are less likely to have staff familiar with the intricacies of campaign finance regulation.

Perhaps those most likely to run afoul of campaign finance laws are unaffiliated individuals engaged in true grassroots activities. For example, in 1991 the Los Angeles Times reviewed Federal Election Commission (FEC) files and found that 62 individuals had violated FECA contribution limits by making total contributions of more than $25,000 to candidates in the 1990 elections. As the Times noted, though many of these 62 were “successful business people” who ‘usually have the benefit of expert legal advice on the intricacies of federal election laws,’ the next largest group of violators consisted of ‘elderly persons . . . with little grasp of the federal campaign laws.’ Political involvement should not be limited to those with “the benefit of expert legal advice on the intricacies of federal election laws.”

FOREIGN CONTRIBUTIONS

Recent decisions of the Supreme Court—including both the McCutcheon case and Citizens United—have taken positions protective of the First Amendment.

The ban on any contributions from foreign sources, not part of the McCutheon case, continues.  Scandals involving contributions from foreign sources have affected both the Clinton and Obama campaigns.

According to a Washington Times report the web site Obama.com, owned by a China-based American business man, which attracted an overwhelming majority of foreigners to it, routed visitors to a donation site. Other published reports  have revealed that an Obama web site accepted donations from abroad, while a similar Romney site rejected similar foreign donations.

Bill Clinton’s presidential campaign was also linked to a serious foreign contribution scandal. Approximately $100,000 from China’s military was funneled to the Democrat campaign in the summer of 1996 by the daughter of a top general in the People’s Liberation Army, General Liu Huaqing.  The funds were not returned until after an investigation revealed the illegal activity.

Both the limits themselves, and the complicated system of reporting under federal, state and local campaign finance regulations, can be seen as favoring “party-boss” backed candidates who have both access to the specialized skills necessary to timely provide mandated filings as well as access to the type of fund-raising abilities that comply with the regulations.

CONCLUSION

Campaign regulations were enacted with good intentions, and when sharply limited to attack outright corruption, have some utility.  In practice, however, they frequently afoul of the First Amendment, and have, by empowering political bosses and “professionals,” as well as opening the door for unlawful interference in the electoral process, caused more harm than good.