My colleague Steve Simpson and I have an op-ed in The Wall Street Journal today discussing TV funnyman Stephen Colbert’s latest riff on Citizens United v. FEC.  As some of our readers may know, Colbert has been trying to start a federal PAC to satirize the ease with which “unlimited corporate money” can be collected in the wake of Citizens United.  But Colbert is quickly discovering that campaign finance law remains incredibly difficult to navigate, particularly for political novices:

 

“Why does it get so complicated to do this? I mean, this is page after page of legalese,” Mr. Colbert lamented. “All I’m trying to do is affect the 2012 election. It’s not like I’m trying to install iTunes.”

 

Well, that’s pretty much what the nonprofit group Citizens United said to the Supreme Court in the case that Mr. Colbert is trying so hard to lampoon.

 

Be sure to read the whole thing.

 

Update:  Professor Rick Hasen, proprietor of the invaluable Election Law Blog, offers his thoughts on our op-ed:

 

Though I don’t agree with these gentlemen on the substance of campaign finance law, I have been thinking similar things about some of the unintended consequences of the Colbert gambit.  This is a lot more dangerous for campaign finance law than Colbert’s Hail to the Cheese candidacy from 2008.

Yesterday, the Eighth U.S. Circuit Court of Appeals issued a split decision upholding Minnesota’s post-Citizens United campaign finance law.  By a 2-1 vote, the court determined that even though the U.S. Supreme Court in Citizens United ruled corporations cannot be forced to form burdensome PACs in order to speak about elections, it is entirely ok for Minnesota to do the same thing.  We’ve discussed the case before when it was filed last year.

 

Basically, the Eighth Circuit said that the regulations Minnesota imposes on PACs are not as burdensome as those at issue in Citizens United.  The court latched onto Citizens United’s approval of some disclosure requirements in making this argument, stating that because Minnesota’s system serves the purpose of disclosure it is constitutional.

 

But there are two problems with this reasoning.  First, the differences between Minnesota’s PAC regulations and those at issue in Citizens United are minimal.  Each scheme requires speakers to appoint treasurers, complete and file detailed reports, and disclose all kinds of information.  Second, the disclosure laws upheld in Citizens United were entirely separate from the PAC regulations it struck down and far less burdensome.  So the Eight Circuit has essentially used one part of Citizens United as the grounds for ignoring another part of the decision.

 

Judge Riley, however, authored a terrific dissent that hopefully will inspire judges elsewhere to enforce the First Amendment and protect free speech.  Among other things, he said “Under Minnesota’s scheme, a corporation is compelled to decide whether exercising its constitutional right is worth the time and expense of entering a long-term or even perpetual morass of regulatory red tape.”  The Supreme Court held in Citizens United that the First Amendment does not allow government to impose that choice on speakers.  It’s unfortunate that the two judges on the Eight Circuit did not understand that, but in the long run, we think other courts will.

The Blog of Legal Times reports on yesterday’s argument in Bluman v. FEC, a First Amendment challenge to federal campaign finance laws that prohibit noncitizens from making contributions or expenditures related to federal elections.

 

The challenge was brought on behalf of two noncitizens: Benjamin Bluman, a Canadian lawyer who supports Democrats, and Asenath Steiman, an Israeli-Canadian doctor who supports Republicans.  Both Bluman and Steiman lawfully live and work in the United States.  But because they are not classified as “permanent residents,” they are prohibited from making political contributions or expenditures.

 

The legal theory of the case is straightforward:  Courts have long held that noncitizens who are lawfully within the United States enjoy the full protection of the First Amendment.  The U.S. Supreme Court has held that citizens have a First Amendment right to make political contributions and expenditures.  Therefore, noncitizens who are lawfully within the United States should have the right to make political contributions and expenditures.

 

Although straightforward, the argument is also controversial.  Politico’s coverage of the case, titled “Lawsuit revives fears of foreign cash,” discusses some of the dire predictions from the Federal Election Commission, which is defending the law, and the conspiracy-theorizing from groups like ThinkProgress regarding the funding of the case.

 

As we’ve noted before, concerns about foreign money in elections are vastly overblown.  Money spent on campaigning is money spent persuading American voters, who ultimately control the levers of power in this country.  The First Amendment protects that right.  Perhaps more importantly, the First Amendment protects the right of voters to decide where they will get their information.  As Justice Kennedy aptly put it in Citizens United v. FEC,

 

When Government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves.

 

In short, there is no reason to be any more concerned about electoral speech from non-permanent residents—who live in America, are subject to our laws, and pay taxes—than we are about foreign newspapers, which routinely weigh in on American elections, or foreign authors, who routinely write books about American policies.  All are equally valid contributions to the marketplace of ideas.

 

We say, “Bring on the Bluman groups.”

 

Image Source: Robert Goodwin

Former Republican Senator Alan Simpson has penned an op-ed for The Washington Post in which he urges Republicans to support Senator Richard Durbin’s Fair Elections Now Act, which would provide government funds for politicians to run for office. At a time when the federal government’s debt is reaching unimaginable levels, Simpson wants both parties to support forcing Americans to subsidize the campaigns of the political class, including those that borrowed and spent that money in the first place.

 

Simpson, a co-chair of Americans for Campaign Reform, argues that a raft of benefits will result from forcing Americans to subsidize the campaigns of politicians that they don’t support or to which they are indifferent. These benefits are largely, if not entirely, illusory. More to the point, he argues that the First Amendment is served by using the force of law to compel Americans to subsidize political campaigns.

 

Although Republicans have traditionally been less enthusiastic about campaign finance reform than most Democrats, Simpson’s view of the First Amendment is indistinguishable from notable Democratic supporters of restrictions on speech, like Russ Feingold, Dick Durbin and Sherrod Brown. Simpson was one of the bipartisan collection of politicians who signed onto an amicus curiae brief in favor of Arizona’s matching funds scheme in the Arizona Freedom Club PAC v. Bennett/McComish v. Bennett case that argued that the government has almost unlimited powers in subsidizing preferred speakers in a campaign.   He was a witness for the government in support of the McCain-Feingold law, the worst assault on the First Amendment since the Alien and Sedition Acts. In his op-ed, he states that Citizens United v. FEC established “a remarkable right of corporate personhood that I have yet to find in the Constitution,” when the decision actually recognized that, under our Constitution, the government cannot put people in jail for making a movie urging a vote against a political candidate. In other words, he is of one mind with those reformers who think “Congress shall make no law…abridging freedom of speech” means Congress can make lots of laws abridging freedom of speech.

 

It is not surprising that campaign finance reform attracts supporters from both parties. Besides protecting incumbents, many political opponents of unfettered political activity have a more personal reason for getting rid of privately financed campaigns. In his testimony in favor of the Fair Elections Now Act, Simpson stated: “I felt ugly, embarrassed [raising funds] . . . . If you talk to someone who likes to beg for money, you’re talking to a delusional man . . . . We were elected to legislate. We cannot legislate if we have to fund-raise day and night.” In other words, we need to limit speech and force Americans to fund political campaigns so that politicians do not have to sully themselves asking for money, thereby further insulating the political class from the public they are supposed to represent and serve. Of all the reasons reformers have put forth to justify their attacks on the First Amendment, however, “keeping elected officials from feeling embarrassed” is probably the absolute worst.

Attorney David Marston and former Bush-administration official John Yoo had an op‑ed in yesterday’s Wall Street Journal making the case against the White House’s efforts to force federal contractors to disclose contributions, not just to candidates, but to any group that might run political advertisements.  As Make No Law readers are aware, this is a backdoor effort by the White House to achieve by fiat what it was unable to achieve in Congress, namely, passage of the so-called DISCLOSE Act.

 

Marston and Yoo’s op‑ed is notable, not just because it makes a strong case for the unconstitutionality of the Obama administration’s actions, but as mark of how much the debate over regulation of political speech has shifted in the last decade.  When the now half-dead McCain-Feingold law was enacted in 2002, a major talking point among conservative elites was “no limits, full disclosure.”  But increasingly—and quite correctly—opinion makers are beginning to recognize the significant costs that disclosure can impose on political participation.

 

So what has changed?  Unquestionably, part of this change in elite opinion has been driven by high-profile incidents of political retaliation made possible by campaign finance disclosure.  But on top of this, we simply know more about the chilling effect of disclosure now than we did in 2002 because social scientists have, for the first time, started measuring it.  Indeed, the Institute for Justice has led the way, publishing multiple studies that examine the burdens disclosure places on grassroots political activists, including:

 

Disclosure Costs: Unintended Consequences of Campaign Finance Reform

 

Campaign Finance Red Tape: Strangling Free Speech & Political Debate

 

Locking Up Political Speech: How Electioneering Communications Laws Stifle Free Speech and Civic Engagement

 

Mowing Down the Grassroots: How Grassroots Lobbying Disclosure Suppresses Political Participation

Keep Out! Campaign Finance Laws as Barriers to Entry

 

Other political scientists have now joined this debate.  Professor Raymond La Raja of the University of Massachusetts, Amherst, recently released a working paper titled Does Transparency of Political Activity Have a Chilling Effect on Participation?  His study measured “how individuals respond differently to making campaign contributions or signing petitions when provided with a subtle cue that the information will be made public.”  His findings?  Not only does disclosure have a chilling effect on participation, but the result is particularly pronounced for small donors and women.

 

La Raja concludes that his findings “should spur policymakers to reconsider the cost-benefit tradeoffs for disclosure policy, particularly for campaign finance.”  Based on the growing number of elite voices questioning the conventional wisdom that more disclosure is always better, it seems that they might be.  Here’s hoping that judges will follow suit.

Freedom of speech is on the rise. America’s campaign finance censors are losing in the courts. They are losing in the legislatures. And, perhaps most importantly, they are losing on the battlefield of ideas. But despite all of that, the forces of censorship are as dogged and relentless as a cyborg killing machine from the future. Backed into a corner, the speech police continue to try to squelch speech by any means necessary.

 

It wasn’t always like this. In years past, the campaign finance “reformers” had been quite successful at getting courts to approve one restriction on political speech after another. Their high-water mark (if one can call it that) came in 2003, when the U.S. Supreme Court in McConnell v. FEC said that Congress could ban corporations and unions from running ads that merely mentioned a candidate close to an election.

 

But thankfully, that streak of victories came to an end in 2006 with the Supreme Court’s opinion in Randall v. Sorrell. Over the next couple of years, the Court took small steps to reversing the damage its earlier rulings had done. In 2010, though, the Court struck a decisive blow for free speech in Citizens United v. FEC, where it wisely ruled that the government may not ban certain disfavored speakers from independently advocating for or against candidates.

Proponents of taxpayer funding for political campaigns, such as Arizona’s “Clean Elections” system, have long argued that it would make races more competitive, reducing the advantages enjoyed by incumbents and easing the path to office for challengers. A new paper finds just the opposite: Public funding increases the incumbency advantage. The paper, by Timothy Werner and Kenneth Mayer, is the first one listed at this link.

 

The finding is especially interesting because it is about full public funding programs, which is to say, those with the “matching funds” provisions at issue in Arizona Free Enterprise Club v. Bennett, the case now before the U.S. Supreme Court. Moreover, one of the authors of the new paper has long argued—including in expert testimony defending Arizona’s program in Arizona Free Enterprise Club—for the theory of increased competition from public funding. But the evidence belies such claims.

           

An analysis of legislative races in 44 states over 30 years shows that the incumbency advantage is nearly 38 percent greater in election cycles with public funding than in those without. That makes taxpayer funding look more like the “incumbency protection racket” that critics charge than any good government reform.

 

Indeed, the authors conclude, “Proponents of full public funding programs, as well as other, smaller-scale reforms, need to temper claims regarding the impacts of such schemes and restrictions on electoral contests and outcomes.”

 

This is yet more evidence that taxpayer funding schemes fail to deliver on their backers’ promises.

We previously blogged about FEC Commissioner Don McGahn’s recent op-ed in Roll Call, which took self-styled “reformers” to task for accusing him of failing to follow his oath of office.  Citizens for Responsibility & Ethics in Washington (CREW) has responded to McGahn’s charges of baseless name-calling with . . . more name-calling.

 

Here’s a representative quote:

 

Whenever he’s finally shown the door, Mr. McGahn should consider a career as a fiction author. His op-ed in Roll Call this morning shows he has a real talent for it.

 

That’s pretty brazen, considering that CREW does not attempt to rebut even a single statement in McGahn’s op-ed.  Luckily for CREW, the First Amendment protects their right to make ad hominem arguments, and even the right to use financial resources to promote those baseless arguments.  Indeed, that was the point of McGahn’s op-ed:  The First Amendment protects the right of all Americans to make their voices heard on issues and candidates they care about, without regard to complaints from “reformers” who would silence those voices.