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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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Divided Government

The United States has a divided government, split not only along party lines but across ideological ones as well. With so many crucial challenges facing the nation, is there any basis for the two sides to reasonably discuss means of reaching solutions?

Perhaps—but it will take a substantial level of will power, and a willingness to put honest representation and  the basic principles upon which America was founded above the petty politics and pandering all too prevalent currently. Here’s what must be done:

Elected officials should remember to put America first.  Yes, so much of the world’s economy, climate, and security are interconnected. But far too often, U.S. office holders act as though whatever is bad for the U.S. is good for the rest of the globe. Nonsense. The health of the planetary economy is largely dependent on the financial success and stability of the United States. That means that tax rates and regulations that hurt American businesses have negative international repercussions. Allowing Washington to act as though it was the welfare agency for the entire Earth will bankrupt the nation and detrimentally affect the entire world. Permitting unchecked, unlimited immigration will sink federal, state and local government budgets and limit job prospects for American workers.

It’s time to deal with reality. It may be comforting to pretend that threats don’t exist, but they do.  Local governments that skimp on law enforcement, and Washington’s pretense that it can cut the defense budget at a time when Russia, China, Iran, North Korea and Islamic extremists have become increasingly aggressive and well-armed is suicidal.  Using funds culled from defense and law enforcement to increase entitlements as a thinly disguised bribe to win votes at the expense of local safety and national security is a growing but disgraceful practice throughout the nation.

Facts and reality, not emotion, should be used to make important decisions. In areas such as the environment, emotions and propaganda take the place of real scientific discourse. Far too often, elected officials and candidates seem incapable of looking past these clichés, catch phrases, and emotional appeals.
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Our elected officials—and the voters—must put country before party or race.  Far too often, inadequate candidates win elections based on their party or ethnic identification, not their abilities.  This is particularly true in areas where one party dominates substantially.  Far too often, candidates lacking the intelligence, character, or ability to adequately fulfill the duties of their office win campaigns simply because they belong to the party or race in the majority in a particular area.

America’s basic governing document—the Constitution— must be given the respect and authority it previously had.  Serious attempts to abridge or ignore key provisions, especially the First, Second, Fourth, Ninth, and Tenth Amendments, as well as the separation of powers have taken center stage over the past several years.  That’s a dangerous precedent, threatening the very foundation of the nation.

It is time it was remembered that sovereignty rests with the American people, not the government, and especially not the bureaucracy. There has been a rapid increase in power provided to agencies such as the Internal Revenue Service, the Environmental Protection Agency, and The Federal Election Commission. There have also been attempts to increase the power of others such as the Federal Communications Commission. These moves are antithetical to the principals America was founded on. They are unlawful and should be rapidly reversed.

Washington’s dramatic increase in power, based largely upon deficit spending, has not produced increased prosperity, safety, or freedom. Dealing with that reality should be a bipartisan effort.

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The Attack on Free Speech

Over the past several months, numerous and unprecedented attacks on the First Amendment have endangered the most cherished American right, freedom of speech. From United Nations conferences to the White House, to the  floor of the U.S. Senate, from court rooms to City Halls, and of course the bureaucracies on the federal, state and local levels that (with questionable constitutionality) seek to regulate political campaigns, the right to open and unfettered expression has become jeopardized as never before in the American experience.

There have been various dimensions to this unprecedented assault.

Internationalization of control of the internet, brought about by President Obama’s inexplicable decision to relinquish U.S. control, has allowed totalitarian governments to come within striking distance of regulating free speech on the web. The U.N.’s International Telecommunications Union  met in Turkey in September, and continued to receive unrelenting pressure from oppressive regimes to enact censorship rules. The organization will meet again in Brazil in November of 2015.

The Centre for International Governance Innovation (CIGI) analyzed aspects of the internet governance debate. Their report noted that starting in 2003, Russia, China, and the Arab states advanced “an explicit rule-making agenda” for a more “state-controlled and monetary version of the internet.” According to Freedom House, “Broad surveillance, new laws controlling web content, and growing arrests of social-media users drove a worldwide decline in internet freedom in the past year.” The study also found that “While blocking and filtering remain the preferred methods of censorship in many countries, governments are increasingly looking at who is saying what online, and finding ways to punish them…In some countries, a user can get arrested for simply posting on Facebook or for “liking” a friend’s comment that is critical of the authorities…”

Within the U.S., attempts to bring any comments which could affect political campaigns (which, on a practical basis, involves almost all discussion of current issues) under the control of federal, state and local election commissions has been the Trojan Horse which advocates of limitations on free speech have used to abridge First Amendment rights. A  Washington Free Beacon article by Ken Vogel reported 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. Tying in free speech laws to campaign regulations has been a key avenue of attack for anti-First Amendment advocates.

The President’s comment was particularly ominous in light of the revelation that the Internal Revenue service targeted groups that opposed him.  It is not coincidental that Lois Lerner, the chief figure in that scandal, previously worked for the Federal Election Commission and engaged in similar outrages there.

In some jurisdictions, such as New York, regulations have been enacted placing publications of any sort which could affect a campaign under the jurisdiction by the State Board of Elections. In Wisconsin, the Government Accountability Board harasses non-leftist groups that seek to disseminate their views.

Within the U.S. Senate, 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 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 Republican minority was able to block the measure

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The FCC is increasingly seen as a potential tool by leftist advocacy groups to silence less radical opponents.  Recently, the Wall Street Journal reported that law professor John Banzhaf III requested the FCC to deny a broadcast license to a radio station that didn’t comply with his attempt to eliminate the public use of the team name Washington Redskins.

Under White House direction, federal agencies have engaged in unprecedented actions to limit free speech. The three Democrat members of The Federal Elections Commission  recently sought to bring many internet posts under the control of that bureaucracy.  The move was blocked by the three Republican members.

Clearly, President Obama has a particularly disdainful attitude towards the First Amendment. The Washington Post recently published a “compendium” of press opinions on President Obama’s treatment of the media. Many of the worries expressed were all the more notable because they came from sources that were, in the past, generally supportive of the current White House. Among the more remarkable comments in the compendium: Former NY Times executive editor Jill Abramson: “It is the most secretive White House that I have ever been involved in covering.” NY Times reporter James Risen: “I think Obama hates the press.” USA Today Washington Bureau Chief Susan Page called the Obama Administration “more secretive and more dangerous to the press than any other in history.”

Beyond Washington, localities and political pressure groups have grown increasingly intolerant of dissent. The recent attempt by Houston’s openly lesbian mayor Annise Parker to subpoena the sermons of any clergy preaching against her controversial measures (which would mandate, among other moves, allowing males who feel they are actually females to use women’s bathrooms) is a notorious example, violative of both the free speech and religious mandates of the First Amendment.

National Review describes efforts by environmental extremists to “literally imprison people for holding unpopular views about global warming.”

All of these attempts clearly defy the very specific mandate of the First Amendment, which specifically states that Congress shall make no law… abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

For generations, Americans safely assumed that their freedom of speech were sacrosanct.  That confidence can no longer be justified.