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Negative Ads Inform Voters
Last week the New York Times roiled the upcoming U.S. Senate election in New Jersey by reporting that Repubican Thomas Kean Jr. planned to produce a film claiming that his opponent, Sen. Robert Menendez (D-NJ), was implicated in a corruption investigation twenty years ago.
Critics sometimes deplore such “negative advertising” and call for restrictions on such speech or the money that funds it. Under such a scenario, the government would gain the power to approve the content and tone of electoral advertising.
The Supreme Court, however, has never recognized “improving speech” as a legitimate reason for regulating money in politics. That’s a good thing.
The Kean film, if produced, will give New Jersey voters important information. If Kean’s claims about Menendez’s past are true, surely voters would want to know that. On the other hand, if Kean is making wild charges, the voters could also draw their own conclusions about his fitness for office.
The best solution to abuses of free speech is more speech, not government control over politics.
Breyer’s Gambit
In the Supreme Court’s ruling in Randall v. Sorrell, six justices agreed that Vermont’s campaign spending and contribution limits violated the First Amendment. That majority split, however, on what made the Vermont law invalid, resulting in what was in essence a plurality ruling. Justices Breyer, Roberts and Alito affirmed Buckley v. Valeo’s finding that spending limits violated the First Amendment. In striking down Vermont’s contribution limits, the plurality sought to break new ground.
In the past, the Supreme Court has said contribution limits should not be so low as to prevent “effective advocacy.” In fact, the “effective advocacy” standard did not constrain legislatures; the Court approved contribution limits deferring to the legislature’s “expertise” in this matter.
Vermont’s contribution limits, however, went too far, according to Justice Breyer, because they harmed “the electoral process by preventing challengers from mounting effective campaigns against incumbent officeholders, thereby reducing democratic accountability.”
For Breyer, the First Amendment is not a constraint on state power expressed as “Congress shall make no law.” Rather, it is a means to realize the value of democratic accountability. That value requires that challengers be able to mount effective campaigns against incumbents. The government can prevent such effective campaigning through contribution limits. Hence, Vermont’s limits must be struck down.
Of course, the Constitution does not demand that Congress advance democratic accountability. But the language of the Constitution has not constrained the Court for some time. Five members of a future Court majority might well explicitly import “democratic accountability” into the First Amendment as a way of enlarging, rather than constraining, state power.
Citing Breyer’s opinion, a future Court might require taxpayers to fund campaigns as way to enable effective challenges against incumbents, thereby increasing democratic accountability. It might also cite democratic accountability as grounds for imposing draconian restrictions on groups that have “undue influence.”
People concerned about free speech welcomed the Randall v. Sorrell decision, but the plurality sought to affirm “democratic accountability” and not the idea of limited government spelled out in the First Amendment. This is not surprising. Justice Breyer is no friend of free speech in campaign finance. That Justices Roberts and Alito signed on to his opinion cannot be a good sign for the future of free speech.
Some Good News from the Court for a Change
The U.S. Supreme Court this morning struck down a set of restrictions on campaign finance enacted by Vermont. Six members of the court believed Vermont’s spending limits and extremely low contribution limits violated the First Amendment.
The six justices agreed that the Vermont law was invalid. But they disagreed about quite a bit, too. Justices Breyer, Roberts and Alito focused on the shortcomings of the Vermont law. Breyer and Roberts also rejected Vermont’s demand that Buckley v. Valeo be overturned. Justices Thomas and Scalia concurred in the opinion but rightly called for overturning Buckley in order to offer better protections for political speech. Justice Kennedy rightly expressed dismay with the Court’s recent campaign finance jurisprudence. In the larger picture, he seems closer to Thomas and Scalia than the other three in the majority.
This ruling was expected, but nonetheless good news. The majority opinion shows that we now have a majority of the court who recognize some limits on the power of the state over political speech. After McConnell v. FEC, it was far from clear than the judiciary would draw any lines limiting state restrictions on speech.
Still, this is hardly a robust affirmation of the First Amendment, and it is somewhat discouraging that the new justices, Roberts and Alito, were unwilling to overturn past errors by earlier majorities on the Court.
I Voted for What?
Rep. John McHugh (R-NY) is an important man in Congress. He serves on the House Armed Services Committee and chairs its Military Personnel Subcommittee which spends $85 billion annually.
Whether he knows how that money is spent is an open question. The Hill reported today that McHugh voted for a defense authorization bill that included a provision “he said he philosophically opposed.” (The provision overrode a federal court’s decision in a dispute between National Guard members and the government about who should pay for correspondence courses).
McHugh apparently had not read the defense authorization bill. Never mind, everyone does it, as The Hill reports, “It is no secret that some — if not most — lawmakers vote on bills that they do not read in their entirety.” McHugh notes that “hundreds and hundreds” of provisions come through, and he relies on his staff “for judgment on more routine matters.”
Members of Congress are elected to work on behalf of their constituents. How can they do that if they don’t read the bills they pass? It is true that the government is so large that supervising how well past laws are being implemented, much less reading bills, takes a lot of time and effort. Maybe more time and effort than even a hard-working member has.
Here’s a thought for members of Congress: maybe the fact that you don’t read the bills you vote for means the government has grown well beyond anyone’s control. Maybe — and this will be shocking to you — the government is too big.
Free Speech Safe For Now
Congressional Quarterly reports that the attack on 527 groups has ground to a halt. As you recall, 527s are organizations created by the tax code. They are used to raise and spend money on elections campaigns. 527s have to disclose their contributions, but they are not bound by other aspects of federal campaign finance law, most notably, contribution limits. 527s helped John Kerry a lot in 2004. House Republicans, though having opposed restrictions on campaign finance for years, have been trying to eliminate 527s since the 2004 campaign. Earlier this year, it looked like they might do so.
Now things look better for those of us concerned with free speech. The House remains eager to get rid of 527s (as part of a “lobbying reform” bill), but the Senate will not go along. Why not? Senate Democrats know what’s up, and with the exception of Russ Feingold, might vote against a lobbying bill that eliminates 527s. So that’s 44 votes against the bill. Seven Senate Republicans also told their leader, Sen. Frist:
As Republicans, we strongly believe in freedom, including freedom of expression and association. We campaigned for office on the principles of a limited and constitutional government. As elected officials we took an oath of office to “support this Constitution.” The First Amendment’s dictates are a model of clarity: “Congress shall make no law. . . abridging the freedom of speech.” Yet the House of Representatives approved a bill (H.R. 513) that proposes new restrictions on speech about politicians and policies to be enforced under the threat of criminal penalties.
The seven Republicans then threatened to support a Democratic filibuster against the lobbying bill. Who knows? Those 7 plus the Democrats might even make up a majority in the Senate?
So partisanship and principle have worked together well to protect freedom of speech. For now.
Spending Limits Are Not the Answer
David Primo and Jeff Milyo have just published an op-ed in Roll Call. Advocates have long argued that restrictions on campaign spending, which can be direct spending or contributions, enhance electoral competition. In Vermont they convinced the state legislature to pass spending limits, the constitutionality of which are now before the U.S. Supreme Court. Primo and Milyo correctly note “the most current and best scientific evidence flies in the face of the promises” made by these advocates. Indeed, “the court jurisprudence upholding campaign finance laws is built on a shaky empirical foundation.” They continue: “In fact, we are aware of no scholarly studies that yield consistent evidence of large and statistically significant effects of campaign finance regulations on electoral competitiveness.”
I go into the shaky philosophical and empirical foundations of campaign finance law in my upcoming book, The Fallacy of Campaign Finance Reform.
Politics Is Not Religion
Will Wilkinson offers some telling criticisms of Charles Morris’ recent New York Times op-ed.
Morris writes that the economy has a “spiritual dimension” that is lacking in contemporary America. He implies that an active and expansive government should supply a “conviction of fairness, a feeling of not being totally on one’s own, a sense of reasonable stability and predictability.”
The state, then, should be in the business of providing spiritual goods.
Morris’ essay reminded me of what one of the founders of neo-conservatism, Irving Kristol, once wrote: “A nation whose politics turn on the cost of false teeth is a nation whose politics are squalid.”
So politics is apparently about more than mere material matters; it has a higher dimension. In our time, that higher dimension has become the politics of national greatness that in turn became a crusade to bring democracy to others.
Both Kristol and Morris are confusing politics for religion. They expect more from politics than it can or should give. Or at least, they expect more than a politics consistent with liberty can give.
The End of “Reform” at the New York Times?
The reporters and editorial writers at the New York Times are powerful advocates of imposing new restrictions on campaign spending. They typically refer to the leaders of interest groups like Common Cause as “advocates of campaign finance reform.” That helps the cause of restricting campaign finance. After all, who could be against “reform”?
So it is noticeable when the New York Times calls the partisans of restrictions something other than “reformers.” In today’s edition, a Times reporter twice called them “advocates of changing campaign financing.”
It is both a revealing and misleading choice. It is misleading because these people seek more restrictions on campaign finance. To be sure, they expect new restrictions will lead to changes in campaign finance, but what they actually hope to do is impose new rules that restrict campaign spending.
Here’s the revealing part: The Times has never before called the Shays-Meehan-Common Cause crowd “advocates of changing campaign finance.” They are usually called “reformers.” (I checked on Lexis-Nexis). Why the new name?
The “advocates of changing campaign financing” along with congressional Republicans are trying to eliminate 527 groups; today’s article concerns one skirmish in that war. That effort against 527s is expected to harm the Democrats who used the groups extensively in 2004.
So if a person pushes restrictions on speech like McCain-Feingold that were expected to help the Democrats, the New York Times called them “advocates of campaign finance reform.” If the same person demands restrictions expected to hurt the Democrats, the Times dubs them “advocates of changing campaign finance.”
I know the New York Times would never have a partisan purpose in advocating restrictions on political speech. Still, this new term for their former friends does create a disturbing appearance of partisanship.
Conservatives Say: Politics Above All
The Washington Times brings news this morning that conservatives are “expressing concern and outrage” about House Speaker Denny Hastert’s strong objections to the FBI’s raid on Rep. William Jefferson’s House office.
Perhaps such “conservatives” ought to recall what the real conservative libertarian who designed the U.S. Constitution once wrote:
But the great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means, and personal motives, to resist encroachments of the others. The provision for defence must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to controul the abuses of government. But what is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controuls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to controul the governed; and in the next place, oblige it to controul itself. A dependence on the people is no doubt the primary controul on the government; but experience has taught mankind the necessity of auxiliary precautions.
Hastert is acting in the spirit of Federalist 51. To be sure, there are other considerations in this case, but Hastert is doing what Madison expected congressional leaders to do: stand up for his branch of the government against an encroachment from an ambitious executive. Those who are criticizing Hastert are trying to make corruption a bipartisan stain or to raise public approval of Congress by a point or two. They are ignoring the constitutional dimension of all this.
I’ll take the timeless logic of Federalist 51, thanks.
Libertarians and Liberals
Last week I looked at a Pew Research Center analysis of libertarians and other ideological groups in the United States. Using the Pew results, let’s compare libertarians to liberals as way of speculating about the upcoming election.
The two groups have a lot in common demographically. Both libertarians and liberals are more likely than other groups to be found in the highest income groups and to have a college education (though liberals are by far the most educated group). Strikingly, both groups are the least likely among the Pew respondents to be supported by African-Americans.
Libertarians and liberals are the least religiously observant among the Pew groups. Both are much more likely than others to say they are “secular” and to state that they “seldom or never” attend church. This secular tendency showed up when Pew looked at responses by groups to some questions about issues. Libertarians and liberals were about as likely to believe homosexuality should be accepted, to favor stem cell research, and to oppose more restrictions on abortion. (Liberals more so on each issue). In each case, the two groups oppose positions endorsed by Roman Catholicism or evangelical Protestant groups. Judged only by these issues, libertarians and liberals should be quite similar politically.
But they are not, and you can guess why. The two differ over the scope of government power over economic life. The Pew data defines liberals in part by their faith that government regulation is needed to protect the public interest. Liberals also oppose tax cuts much more than any other group and to think businesses make too much profit. Liberals are about as likely as any American to believe free trade is good for the nation, their only significant departure from what you might expect on the economic front.
This difference on economic policies translates into partisan differences. Exactly half of libertarians in the Pew survey identified themselves as Republicans or leaning that way. 57 percent voted for President Bush in 2004. When forced to choose, these voters seem to assign more weight to the economic aspects of liberty than the social side.
On the other hand, 41 percent of the Pew libertarians identify with, or lean toward, the Democratic party. Could that number rise?
Here’s one guess, popular with libertarians angry with the GOP. Libertarians are close to liberals demographically and on social issues, and liberals are overwhelmingly Democratic. If Republicans support economic policies similar to liberal positions, libertarians have little reason to vote Republican. The only difference between the parties would concern social questions, and on those issues, the Democrats are more often if not always more libertarian than Republicans.
Here’s the problem with this guess about the future. Libertarians have to consider what Republicans and Democrats will do in the future, and rationally, they need not simply extrapolate from the recent past to do that.
It is true that Republicans have expanded government rapidly to maintain control of Congress (among other reasons). But that does not mean Democrats in power would not expand government even more rapidly for reasons of ideology and interest. Democrats complained that the Medicare prescription drug benefit was not generous enough, not that it expanded government too much. More generally, the American National Election Survey found in 2004 that two-thirds of self-identified liberals and 56 percent of Democrats believed “it is important for the government to provide many more services even if it means an increase in spending.” This support for expanding government, by the way, is the highest ever reported for both liberals and Democrats. It is almost 40 percent higher for liberals and 47 percent more for Democrats than it was in 1996 when Bill Clinton declared the end of big government. If Democrats in power listen to their base in 2007 (or 2009 with the presidency in hand), they will not be responding to the moderates at the Democratic Leadership Council.
Given all that, I don’t think many libertarians who have been voting Republican are likely to start voting Democratic. As bad as the Republicans have been on limiting government, libertarians primarily concerned with economic liberty have reason to think the Democrats would be worse. So they will continue doing what they have been doing unless the Democrats start looking better or the Republicans become even worse.
Do Libertarians Have a Prayer?
Many people think political philosophy comes in two varieties, liberal or conservative. The former values social freedoms while seeking government control over capitalist acts between consenting adults (in Robert Nozick’s wonderful phrase). Conservatives defend economic freedom but not other acts between consenting adults. As a philosophy that seeks both social and economic liberty, libertarianism has sometimes seemed at the margins of American politics. A recent poll throws doubt on that assumption.
The Pew Research Center measured political ideology based on six questions from one of their 2004 surveys. Three of the questions concerned economic liberty, the others social freedoms. Liberals scored high on social freedoms, conservatives on economic liberty, and populists had little regard for either. Libertarians, as you might expect, consistently supported liberty in both dimensions.
Pew estimates that 9 percent of Americans are libertarians. That might seem low until you realize that 18 percent are liberal, 16 percent populist, and 15 percent conservative. Pew calls the rest of the nation “ambivalents” who have no firm ideological outlook. As Scott Keeter, the author of the Pew study, concludes “libertarians, though the smallest of the ideological groups, represent a substantial percentage of the population.”
A lot of what Pew discovered about libertarians may not surprise you. They are more likely than the rest of the population to have a college degree, to be in the highest income category, and to come from the West. On the issues, libertarians are more likely to think homosexuality should be accepted, to favor stem-cell research, to believe businesses make a fair profit, and to find free trade good for the nation.
But some of Pew’s other findings about libertarians are more unexpected, at least to me. Libertarians are 50 percent more likely to declare themselves “secular” than the general population. Still, only about 12 percent of the libertarians surveyed identified themselves this way. Libertarians are also more likely than the general population to identify as a “white Catholic.” Finally, almost two-thirds of the libertarians said they go to church at least once a month. That’s a little less than the general population, but a lot more than I would have guessed.
Half of the libertarians identified with or leaned toward the Republican party. At the same time, 41 percent affiliated themselves with the Democrats. Sen. Kerry got 40 percent of the libertarian vote in 2004. President Bush did better among libertarians than you might expect given the party identification numbers. Bush got 57 percent of libertarian vote last time. But as they say, “if the election were held today….”
I have saved the best for last. One-third of Pew’s libertarians are between 18 and 29 years of age. Libertarians are thus fifty percent more likely to be found among the young than in the population as a whole. They are also much more likely to be found among the youngest cohort than are conservatives or populists.
So the present may seem bleak for libertarians. But just wait. Help is on the way.
Nancy Johnson Does Well by Doing “Good”
Sometimes what does not happen is the most important thing in politics.
Nancy Johnson is a twelve-term Republican member of the House of Representatives. But she has a problem. Al Gore in 2000 and John Kerry in 2004 ran better in her district than they did in the nation as a whole. Nancy Johnson, a Republican, represents a district that all things being equal would elect a Democrat.
Nancy Johnson should be facing the fight of her life this fall given the problems of the Bush administration and the general unpopularity of the congressional Republicans. As the New York Times reports (subscription required), she is facing a tough fight. Her opponent has raised some money and is trying to tie Rep. Johnson to President Bush.
But Johnson’s fight for survival will not be as tough as it might have been. Prior to McCain-Feingold passing in 2002, labor unions, corporations and other groups could buy ads that discussed issues in ways critical of incumbent members of Congress. For example, a group could support an ad that said: “Nancy Johnson helped George Bush pass a bad prescription drug plan that helped the Big Drug Companies and hurt our seniors. Call Nancy Johnson and tell her to stop helping the Big Drug Companies and hurting our seniors.”
Not surprisingly, vulnerable Republicans in Congress like Nancy Johnson did not like such ads. Such Republicans provided the crucial support in the House to pass McCain-Feingold, which prohibited labor unions and corporations and other groups from running these ads. So much for free speech, but Nancy Johnson will have an easier race this fall. Read the rest of this post »
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