Tag: Citizens United

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Campaign Regulation used for Partisan and Anti-Free Speech Goals

The trend towards restricting free speech through campaign finance regulations is gaining speed, on both the national and state levels.

The supporters of these anti-First Amendment moves 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.

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.

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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. The Democrat members of the Federal Election Commission attempted to impose a penalty on one news station that has 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 have never considered imposing similar sanctions against the Democrat National Committee, which has 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 in a free nation.

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

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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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The Silence of the Left

The defining moments of a nation come not just from when something is done. They also come from when something is not done.

Think of how Germany’s history would have been different if more had opposed the horrific plans of Adolph Hitler. Imagine how much better America would be if the rise of segregation and discrimination after the Civil War had been prevented. Today, the failure by those who should know better, to condemn the attacks on free speech should be viewed with equal disdain.

The latest revelations about the widespread nature of the Internal Revenue Service’s intimidation against political opponents of the White House are cause for the deepest concern. Despite those revelations and the growing obviousness that major political appointees and perhaps top elected officials were involved in this unlawful program, there is no adequate legal action underway by a politically compromised and openly biased Justice Department. Nor are the vast majority of media outlets performing the functions they should be doing, by emphasizing the extraordinary nature of these unprecedented assaults on honest elections and free speech.

Indeed, there are attempts by the bureaucracy to continue this affront by simply changing tactics.

The original story is, by now, well known, although too late to actually serve the interests of justice. In anticipation of the 2012 presidential bid, the IRS intimidated and harassed groups considered not supportive of President Obama’s re-election bid.

However, this is not just a problem—dire as it is—about a past election.  Unblushingly, the same tactic is being tried again, under a different guise, to insure that the 2016 presidential election also goes the way the hard left desires.

As noted by Spectator magazine In November of 2013, the IRS proposed regulations that would essentially “institutionalize” its politically biased attacks. It is part of the hard Left’s fury at the U.S. Supreme Court’s 2010 decision in the Citizens United v. Federal Election Commission, which, as noted in Spectator, “held that both labor unions and corporations had a free speech right to use their general funds for independent expenditures of a political nature. It said, among other things, that the First Amendment ‘has its fullest and most urgent applications to speech uttered during a campaign for political office.’ And that, in liberal thinking, opened a floodgate of corporate action where only union action had been permitted before. …[The politically-motivated IRS determined that] The best way to block spending by such nonprofits is to block them from becoming nonprofits, which has the effect of blocking most contributions to them. If you block their funding, they can’t spend anything on independent campaign ads for conservative candidates or against liberal ones. That’s what the IRS did in 2012, is doing today, and will continue to do when the new rules take effect.”

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Having been exposed for its 2012 offenses and voted down in the U.S. Senate hasn’t stopped the hard left from continuing their attack. According to the Wall Street Journal (WSJ), there is a “behind the scenes effort to lobby the Federal Election Commission and Justice Department to stifle free speech…don’t be surprised if the subpoenas hit Republican candidates at crucial political moments.”

According to WSJ, the new theory to slap down non-leftist candidates and ignore both the First Amendment and the recent U.S. Supreme Court ruling is called “coordination,” which alleges that activities by independent SuperPACs  should be treated as campaign expenditures—although so far, the only target has been a Republican candidate, with nothing being said about a similar situation in Hillary Clinton’s campaign.

Direct attacks on media independence haven’t been overlooked in the drive to silence free speech. Efforts to place Federal monitors in newsrooms, and ending the independence of the Internet also have been used.

Historically, Americans have seen freedom as an end unto itself. But in the 21st century, many hard-left Progressives view a strict interpretation of Constitutional freedom guarantees and procedures as an obstacle to achieving their goals.

Most Americans remain unaware of the increasingly serious implications of this disdain for the Bill of Rights, largely because of the more subtle tactics of its assailants and the silence of a mass media that shares the political beliefs of the current executive branch. There are no mass burnings of books, no acts of physical intimidation on political opponents. Instead, there are IRS investigations of those opposing the White House. There are threats of sanctions against students who disagree with their hard-left professors. There are no mass outcries from many in the media when the new marketplace of ideas, the internet, is allowed to fall out of the hands of those who cherish freedom of speech.

How this is addressed may be the defining moment of the 21st Century American experience.

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Senate Moves to Limit First Amendment

One of the most fierce and important conflicts has been ongoing this week in the U.S. Senate, as Majority Leader Harry Reid (D-Nevada)  emphasizes a move to alter the First Amendment.

As previously reported in the New York Analysis of Policy & Government, two Democrat senators, Tom Udall (D-New Mexico) and Charles Schumer (D-New York), proposed a measure that would limit free speech protections as they pertain to campaign donations. The proposed legislation has gained 43 Senate supporters—all Democrats.

At a Senate Rules Committee hearing earlier this year, Schumer stated that “”The First Amendment is sacred, but the First Amendment is not absolute. By making it absolute, you make it less sacred to most Americans.”

The push comes in the wake of recent U.S. Supreme Court decisions in the McCutheon http://www.scotusblog.com/case-files/cases/mccutcheon-v-federal-election-commission/  and Citizens United http://www.scotusblog.com/case-files/cases/citizens-united-v-federal-election-commission/  cases which struck down restrictions on First Amendment rights in campaign donations. Democrats point to monies from the Koch brothers; Republicans counter with the extraordinary amounts provided by George Soros, and a host of Hollywood and Wall Street sources.
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Democrats, closely linked to the increasingly troubled White House, are deeply concerned that Republicans will attract substantially more contributions in the upcoming election.

Reid’s move should be seen in light of other questionable attempts to reinterpret the First Amendment. Previously, the White House sought to have federal “monitors” review the work of talk radio and internet news sites, both seen as tilted towards the GOP. The President’s move to allow international control of the internet has also been seen as a threat to free speech in that medium.

A recent report in the Washington Free Beacon http://freebeacon.com/politics/obama-thought-he-could-amend-constitution-in-second-term/ author Ken Vogel noted that President Obama, in an address to wealthy donors in 2012, asserted that he would be “in a very strong position” to amend the Constitution regarding campaign laws during his second term.

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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.

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Supreme Court Ruling Protects 1st Amendment

The U.S. Supreme Court’s 5 to 4 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.

Chief Justice Roberts delivered the decision, noting that corruption would be held in check by limiting how large a single donation could be.  The ruling indicates that the ceilings on the total amounts contributed each election cycle would not undermine that goal.

In its 5-4 decision yesterday, 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.

Research indicates that campaign regulation efforts have not achieved the goal of reducing the influence of money in politics.  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 finance regulations have been abused in a number of ways. In some localities, local Campaign Finance Boards have used their authority to heavily influence the outcome of elections and enhance the power of political bosses.  The ability to do this is especially prevalent in jurisdictions where taxpayer funds are provided to help finance campaigns.
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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 article 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.