Friday, September 18, 2009

More Free Speech Restrictions Dumped

The incumbency protection racket known as campaign finance reform took another major hit today when a three-judge Washington DC Court of Appeals panel ruled that nonprofit organizations cannot be barred from spending any amount of money they want for candidate specific advocacy. (See AP article)

Since the passage of McCain-Feingold and subsequent regulations by the Federal Election Commission, courts have been steadily whittling away at these policies’ blatant infringements on First Amendment assurances of free (political) speech.

Although GW Bush appointee Janice Rogers Brown criticized the other two justices (another GWB appointee and a Reagan appointee) for their “sweeping interpretation of First Amendment issues,” she ultimately agreed with their conclusion.

Many observers expect the Supreme Court to strike down even more of McCain-Feingold’s provisions when it rules on a case heard last week. (See WSJ article)

Two Cases
The two cases mentioned here enjoy both similarities and dissimilarities. The DC case involved a nonprofit pro-abortion group, while the SCOTUS case addressed the question of free speech rights exercised by corporations and unions.

Both courts seem to show a preference for treating nonprofits as if they enjoy free speech rights similar to those of individuals. After all, what is a nonprofit besides a group of individuals banding together in a common cause? How can we say that individuals acting as a group allows the government to infringe on their rights?

The amendment says nothing about individuals anyway. It simply says, “Congress shall make no law … abridging the freedom of speech….” That’s it. No law abridging free speech. Period. It doesn’t say “individual free speech.” It just says “free speech.”

While many suppose that SCOTUS will weaken restrictions on corporations and unions, there is a serious question about whether it is appropriate to treat such organizations as analogous to individuals with respect to free speech rights. (See CS Monitor article) They too are organizations of individuals bound together, but many see basic motivational differences between them and nonprofits.

Regardless of how SCOTUS rules on this case, it will not take long before corporations and unions figure out how to work through nonprofits to skirt current campaign finance laws. Of course, the DC case could also be appealed to the appeals court’s full panel and to the Supreme Court. So that story isn’t over yet.

While some whine about the decline of campaign finance laws, it must be understood that one of the main reasons such laws exist is to protect incumbents. The laws do nothing to limit spending by candidates. They mainly limit spending by those opposed to incumbents. These laws create a false sense of security among the public, which is led to believe in the bizarre distortion that the laws keep the bad guys out of politics.

There is no shortage of people that tell us that the solution to all of this is public funding of campaigns. In a country where free speech is guaranteed, this simply won’t work. The courts have repeatedly recognized that the ability to spend money to get a message out is equivalent to free speech. Restrictions on campaign spending violate the First Amendment. In short, public funding would require a constitutional amendment, and that’s simply not going to happen.

Some tell us that the best answer in a political system like ours is transparency. Let anyone give any amount of money they want to any candidate or political cause, but require immediate and complete disclosure of each donation.

This sounds good, but what about privacy rights? A number of people that gave money in support of California’s Proposition 8 last year found themselves the targets of terroristic threats and activities after the proposition passed, thanks to California’s campaign transparency laws. (See NY Times article) Of course, this kind of thing can backfire. Public support tends to wane once it becomes known that some have threatened the safety and livelihood of those with differing political opinions.

What we ultimately want is a healthy republic with healthy underlying democratic institutions. This requires a balancing act between rights and responsibilities. And that requires constant adjustment.


Charles D said...

The free speech rights of citizens should be protected and, if anything, enhanced. Corporations however, have no free speech rights except those given to them by corrupt courts. No one has a problem with individual citizens banding together in non-profit groups to pool money for campaign ads.

The problem comes when corporations and their PR firms are setting up these groups, funding these groups, and pressuring employees to participate or donate to such groups. There should be a Constitutional Amendment that specifies in no uncertain terms that the rights enumerated in the Constitution and its amendments apply to individual citizens, not to legal entities chartered by the several states.

Nothing in the Constitution equates money with speech. While every citizen has a right to say what they want in the public forum, that right should not extend to blanketing the public airwaves with deceptive advertising on behalf of a politician or a political idea. Enforcing rational limits on campaign finance and remove corporate money from the political system is necessary to maintain the republic.

Scott Hinrichs said...

"Enforcing rational limits on campaign finance and remove corporate money from the political system is necessary to maintain the republic."

That reminds me of GW Bush saying, "I've abandoned free-market principles to save the free-market system."

Bradley Ross said...

I suppose that it is fair to note that McCain-Feingold has done a lot to protect incumbents. I believe, however, that McCain (I don't know anything about Feingold) offered the reform with sincere intent. He was stung by the Keating Five fiasco and I think he has striven to be beyond reproach since then.

That doesn't make it a good law, but then well intentions laws frequently backfire. This is yet another example. One more reason I'm nervous about the health care reforms we're likely to see.

Scott Hinrichs said...

McCain was warned about the pernicious side effects of what he was proposing. And while I do not pretend to know what was in the good senator's heart at the time he wrote the legislation, a perusal of the Congressional Record demonstrates that no one voting on the matter could have been unclear about the legislation's intent to protect incumbents. In fact, the legislation could not have passed without this central focus.

Of course, the bill was sold to the public as a 'solution.' That's nothing new. This kind of thing was going on in politics long before John McCain was born.