The New Republic has an interesting article explaining “How Campaign Finance Laws Made the British Press so Powerful.” Basically, only British newspapers are free of regulations that suppress political speech. The author suggests adding more controls (including content restrictions) on the British newspapers to enforce “impartial” coverage. In other words, the media should be just as repressed as everyone else, and political leaders should be free of criticism.

Like many others, I have long thought that U.S. newspapers editorialize in favor of campaign finance restrictions to control competing speech and thereby become more powerful. After Citizens United, other organizations now enjoy the same First Amendment protections as media corporations like The New York Times and The Washington Post. No doubt that does mean such corporations are less powerful than they would be if campaign finance laws suppressed political speech that competes with their editorials and news reports. However, such competition is good for voters.

An Intended Consequence is a post from Cato @ Liberty - Cato Institute Blog

The Washington Post offers today a critical look at independent fundraising and spending in the 2012 campaign.

The article states independent groups are raising money “in response to court decisions that have tossed out many of the old rules governing federal elections, including a century-old ban on political spending by corporations.”

But the century-old ban is on campaign contributions by corporations, and it is intact. Spending on elections was not prohibited to some corporations until much later.

Other spending by corporations, like the money spent by The Washington Post Company to produce the linked story, has never been regulated or prohibited by the federal government.

The article mentions a “shadow campaign” and refers to Watergate. It states “independent groups are poised to spend more money than ever to sway federal elections.” Surely something is amiss here! Or at least the causal reader of the Post might conclude that.

But what is going on? A spokesman for one of the independent groups says they are trying to influence the debt ceiling debate and that as far 2012 goes: “We’re definitely working to shape how the president is perceived, because how he is perceived will have a huge impact on how this issue is resolved.”

It sounds like the group is engaging in political speech on an issue, speech that could have some effect on next year’s election. What is amiss about that? Isn’t the right to engage in such speech a core political right under our Constitution?

The article also argues that independent groups, being independent, may fund speech that may harm a candidate they are trying to help. Candidates, in a sense, have lost some control over their campaigns and their messages.

Of course, absent limits on contributions to candidates and parties, the money going to independent groups might go to…candidates and parties. Liberalizing speech, not suppressing independent groups, might be a good way to prevent groups from airing ads that harm or misrepresent candidates for office. Finally, candidates do have the power to repudiate independent ads.

Expect more news stories like this one over the next 18 months. The cause of campaign finance reform is in desperate straits. Reformers in the media are going to construct a narrative that says: money is destroying democracy in 2012, all because of Citizens United. They hope thereby to set the stage to restore restrictions on campaign finance.

The First in a Long Series is a post from Cato @ Liberty - Cato Institute Blog

Campaign finance regulation met celebrity culture for one morning this week. I was not completely bemused.

Stephen Colbert and the FEC is a post from Cato @ Liberty - Cato Institute Blog

For some time now, the U.S. Supreme Court has placed little weight on the value of anonymous speech, especially in the campaign finance context. True, in McIntyre v. Ohio Elections Commission (1995), the Court struck down a state law prohibiting distributing anonymous campaign literature. But from Buckley v. Valeo (1976) onward, the Court has looked favorably on disclosure of campaign spending. Even Citizens United saw only one justice, Clarence Thomas, speak out in favor of anonymous speech.

Long-time First Amendment advocate Nat Hentoff raises some questions about limiting anonymous speech in this video. He praises Justice Thomas and recalls the importance of anonymous speech during the founding era.

Defending Anonymous Speech is a post from Cato @ Liberty - Cato Institute Blog

In an earlier post, I wrote about the problems with the Obama administration’s executive order to force government contractors to reveal their political activity.

The administration defends the mandate by arguing “taxpayers deserve to know how contractors are spending money they’ve earned from the government.”

For the first (and perhaps last) time, I rise to the defense of government contractors. The President apparently believes that anyone who sells a good or service to the government must account for the uses of the money received in the transaction in perpetuity? Obama’s press secretary said the President’s “goal is transparency and accountability. That’s the responsible thing to do when you’re handling taxpayer dollars.”

I do not understand this. The government extracts taxes and spends the money. Indeed, government officials should be accountable for that spending. But once the exchange is made, the money belongs to a private firm. It is no longer the property of the taxpayers.  Perhaps the use of a firm’s money should be disclosed, but you need a different argument to justify that mandate. The President seems to be proposing that anyone who does business with the government may have to account for the money they earn in those transactions. That assertion strikes me as a real expansion of government power.

The most troubling part of all this remains the President’s view that he can enact this mandate through an executive order. Americans should be wondering why a rule rejected by Congress can simply be enacted by fiat by the President. The President does not enjoy the power of a king, does he?

The President’s gambit may be in trouble. Sen. Susan Collins, a Republican from Maine, is questioning the content of the decree. I am glad she is concerned about the First Amendment. I would be happier if she questioned the Obama-Bush conception of executive power that informs this effort.

A Weak Defense of Disclosure is a post from Cato @ Liberty - Cato Institute Blog

• “One of the first rules of negotiating is never to threaten to do something unless you are prepared to do it.”
• Policymakers and pundits assume the U.S. is so dominant that we’re prepared to fight multiple fronts at once, and that it won’t affect our security.
• Candidates for office should prepare to raise money, not rely on taxpayer subsidies.
• More market liberalization could help prepare Japan for any other natural disaster.
• Are Tea Party-backed Republicans prepared to go the distance on spending cuts?

Monday Links is a post from Cato @ Liberty - Cato Institute Blog

Yesterday the Supreme Court heard oral arguments in the Arizona matching-public-campaign-funding case, McComish v. Bennett, spearheaded by our friends at the Goldwater Institute and the Institute for Justice.

Here’s the background:  In 1998, after years of scandals ranging from governors being indicted to legislators taking bribes, Arizona passed the Citizens Clean Elections Act. This law was intended to “clean up” state politics by creating a system for publicly funding campaigns.  Participation in the public funding is not mandatory, however, and those who do not participate are subject to rules that match their “excess” private funds with disbursals to their opponent from the public fund. In short, if a privately funded candidate spends more than his publicly funded opponent, then the publicly funded candidate receives public “matching funds.”

Whatever the motivations behind the law, the effects have been to significantly chill political speech. Indeed, ample evidence introduced at trial showed that privately funded candidates changed their spending — and thus their speaking — as a result of the matching funds provisions. Notably, in a case where a privately funded candidate is running against more than one publicly assisted opponent, the matching funds act as a multiplier: if privately funded candidate A is running against publicly funded candidates B, C, and D, every dollar A spends will effectively fund his opposition three-fold. In elections where there is no effective speech without spending money, the matching funds provision unquestionably chills speech and thus is clearly unconstitutional.  For more, see Roger Pilon’s policy forum featuring Goldwater lawyer Nick Dranias, which Cato hosted last week and you can view here.

The oral arguments were entertaining, if predictable. A nice debate opened up between Justices Scalia and Kagan about the burden that publicly financed speech imposes on candidats who trigger that sort of financing mechanism under Arizona law. Justice Kennedy then entered the fray, starting out in his usual place — open to both sides — but soon was laying into the Arizona’s counsel alongside Justice Alito and the Chief Justice.

The United States was granted argument time to support Arizona’s law, but Justice Alito walked the relatively young lawyer from the Solicitor General’s office right into what I consider to be his (Alito’s) best majority opinion to date, the federal “millionaire’s amendment” case (paraphrasing; here’s the transcript):

Alito:  Do you agree that “leveling the playing field” is not a valid rationale for restricting speech?

US:  Sort of.

Alito:  Have you read FEC v. Davis?

Note to aspiring SCOTUS litigators: try not to finesse away direct precedent written by a sitting justice.

My prediction is that the Court will decide this as they did Davis, 5-4, with Alito writing the opinion striking down the law and upholding free speech.  Cato’s amicus briefs in this case, which you can read here and here, focused on the similarities to Davis, so I’m keeping my fingers crossed that we’ll get cited.

NB: I got to the Court too late to get into the courtroom today but live-tweeted (@ishapiro) the oral arguments from the (overflow) bar members’ lounge, which has a live audio feed. I was later informed that such a practice violates the Court rules, however — ironic given how pro-free-speech this Court is – so I will not be repeating the short-lived experiment.  (That said, you should still follow me on Twitter — and also be sure to follow our friends @IJ and @GoldwaterInst!)

If the Government Gives Your Election Opponent More Money the More Money You Spend, It Burdens Your Speech is a post from Cato @ Liberty - Cato Institute Blog

As Caleb noted earlier, today marks the one-year anniversary of Citizens United, a case I first thought ”just” concerned some weird regulation of pay-per-view movies, but turned out to be about asserted government power to ban political speech — including books and TV commercials — simply because the speaker was not one individual but a group (in corporate or or other associational form).  See also this op-ed by ACLU lawyer Joel Gora.

Roger similarly noted the continuing discussion in Congress and elsewhere about the public financing of elections.  As it turns out, the Supreme Court has agreed to hear a challenge to such a system, specifically Arizona’s Clean Elections Act.  Brought by our friends at the Institute for Justice and the Goldwater Institute and supported by our brief at the cert petition stage, this lawsuit challenges a law that aimed to “clean up” state politics by creating a system for publicly funding campaigns.

Participation in the public funding is not mandatory, however, and those who do not participate are subject to rules that match their “excess” private funds with disbursals to their opponent from the public fund. That is, if a privately funded candidate spends more than her publicly funded opponent, then the publicly funded candidate receives public “matching funds.”

Whatever the motivations behind the Clean Elections Act, the effects have been to significantly chill political speech: privately funded candidates changed their spending — and thus their speaking — as a result of the matching funds provisions. In elections, where there is no effective speech without spending money, matching funds provisions such as those at issue here diminish the quality and quantity of political speech.

In 2008, however, the Supreme Court struck down a similar part of the federal McCain-Feingold law in which individually wealthy candidates were penalized for spending their own money by triggering increased contribution limits for their opponents (Davis v. FEC, in which Cato also filed a brief). Even this modest opportunity for opponents to raise more money was found to be an unconstitutional burden on political speech.

Cato’s latest brief thus asks the following question: Whether Arizona may give a publicly funded candidate extra money because a privately funded opponent or his supporters have, in the state’s judgment, spoken too much. We highlight Davis and numerous other cases that point to a clear answer: if the mere possibility of your opponent getting more money is unconstitutional, then the guarantee that your opponent will get more money is even more so. Allowing the government to abridge political speech in this fashion not only diminishes the quality of political debate, but ignores the fundamental principle upon which the First Amendment is premised: that the government cannot be trusted to regulate political speech for the public benefit. Moreover, the state cannot condition the exercise of the right to speak on the promotion of a viewpoint contrary to the speaker’s.

The case is McComish v. Bennett, consolidated with Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett.  The Court will hear it March 28, with a decision expected by the end of June.

A Year After Citizens United, Campaign Finance Back at the Court is a post from Cato @ Liberty - Cato Institute Blog

Today POLITICO Arena asks:

Would the House plan to vote next week on a proposal to end the system of financing presidential candidates and national conventions with federal funds wisely put to rest a public financing scheme that never worked well, or would it eliminate a bulwark against political corruption by forcing candidates to rely entirely on private money?

My response:

The decades long effort by the Left to finance presidential candidates and national conventions with federal funds — part of the Left’s more ambitious effort to finance all political campaigns with public funds — never worked as proponents hoped it would, with taxpayer participation through check-offs declining from 28.7 percent in 1980 to 7.3 percent in 2009 — and for good reason.

The corruption-prevention rationale was always bogus. And the idea that public financing would itself be corruption free didn’t pass the straight-face test. The American people may be dumb (quiet), but they’re not stupid! They’ll make their political contributions directly — thank you — not through the government — if the law allows them that right, which at present is highly regulated. Let’s hope that this move by the new House is only the first step toward removing government completely from the campaign financing business.

Private Vice, Public Virtue is a post from Cato @ Liberty - Cato Institute Blog

In a barely coherent editorial this morning, The New York Times continues its decades-long crusade against free speech — except its own, of course — with yet another blast at the Supreme Court over its campaign finance decision last January in the Citizens United case. And again, the Times misstates the decision: it did not overturn “a century of precedent.” Perhaps its editorialists can be forgiven for that, even after nearly a year to get it right: after all, the president himself continues to misstate the decision, and that’s good enough for them.

Entitled “Our Constitutional Court,” the editorial’s main point seems to be that the Court is “redefining itself as a constitutional court.” That’s a curious charge. Many countries have “constitutional courts” that give, among other things, advisory opinions about the constitutionality of pending legislation. Our courts, by contrast, decide only “cases or controversies” that are ripe for decision, based on facts that bring the controversy into fairly sharp relief; but they’re still often “constitutional” decisions. The charge here, apparently, is that the Court acted where it needn’t have or, perhaps, had no authority to act. Yet the facts belie that.

Citizens United is a complex decision, but the facts giving rise to it are fairly simple. It arose over the question whether Citizens United, a non-profit corporation, could advertise a film critical of Hillary Clinton in broadcast ads during the 2008 primary season, in apparent violation of the 2002 McCain-Feingold Act. Thus, there was a real controversy here. But in upholding the right of corporations and unions to make independent campaign expenditures supporting or opposing candidates, the Court sustained a “facial challenge” to the statute that the parties had agreed to dismiss, and in so doing reached out to overturn an anomalous and mistaken 1990 decision that was directly on point, even though that case was not before the Court in the initial ’go-round of Citizens United. And that, apparently, is the “judicial activism” that so exercises the Times’ editorialists.

In truth, however, the Court was following a fairly well established practice. In First Amendment speech cases, as here, the Court entertains “facial” rather than “as-applied” challenges for a very simple reason. Were the Court to have found simply that Citizens United’s rights were violated in this instance, based on these particular facts, the statutory provisions restricting those rights would be left standing, unlike with a facial challenge, and the future speech not only of Citizens United but of all others would be chilled. The First Amendment will not stand that, and the Court so ruled.

Of all people, the Times editorialists surely understand that. But in their minds, campaign finance is not speech, and so they use this decision, in light of the “tumultuous change in the recent elections,” with which the editorial begins, to make a much broader point: that the Court decided “a sweeping issue of constitutional law” by “moving past the limited controversy that was actually in the case.” Thus the Court “inserted itself where [it] has said it should be most restrained, deferring to other branches with more competence to decide questions about the workings of politics, including about the role of money.”

That’s rich — the Times championing judicial restraint. One wonders what the response would have been had the Court held that the Great Gray Lady’s corporate wealth could not be put behind campaign editorials, almost all supporting the candidates of a single party. Fortunately, the Court seems to be moving in the opposite direction. The Times editorialists are perfectly free to put their corporate wealth behind candidates, and so, now, are the rest of us — thanks to the Court’s grasping the nettle.

The Campaign Finance Crusade of The New York Times is a post from Cato @ Liberty - Cato Institute Blog

This morning the United States Supreme Court refused to consider the appeal in the case of SpeechNow.org v. Federal Election Commission. That’s a shame.

I have written before about the SpeechNow case. Here’s a brief summary of the issues. The judiciary has long held that individuals could spend as much as they wished on elections. The traditional rationale for restricting spending — preventing corruption of the political process — did not apply to spending by individuals. If that is true, the SpeechNow plaintiffs wondered why individuals joined in a group (and independent of the candidates and parties) should not have the same freedom from restrictions.

It turned out, thanks to Citizens United, that individuals did have that right to be free of limits on campaign spending as recognized by a federal court. That same court maintained, however, that the associated individuals still had to register with the Federal Election Commission as a “political committee.” The paperwork and related rules complicate and discourage participating in politics. By refusing to hear SpeechNow’s appeal, the Supreme Court has decided that these associations must register with the government before engaging in politics.

Nonetheless, the SpeechNow plaintiff deserve our thanks. They have gotten a lot more than “half a loaf” out of their effort. True, the government is still too involved in electoral speech, but the limits on political speech and association have been invalidated. That is a real achievement and more evidence that the long era of restrictions on campaign finance is drawing to a close.

The Success of SpeechNow is a post from Cato @ Liberty - Cato Institute Blog

Today POLITICO Arena asks:

Is it worrisome that Americans spend on political advocacy – determining who should make and administer the laws – much less than they spend on potato chips, $7.1 billion a year?

My response:

For decades among modern liberals it has been an article of faith — devoid of evidence — that money corrupts politics and that there is too much money in politics — “unconscionable” amounts, we’ve been told, repeatedly. Thus the crusade to restrict and regulate in exquisite detail every aspect of campaign finance, beginning in earnest with the Federal Election Campaign Act of 1971 and culminating with the Bipartisan Campaign Reform Act of 2002 (McCain-Feingold). Yet after every new restriction along that tortuous course, ever more money has flowed into our political campaigns. But for all that, they’re no more corrupt than they’ve ever been. In fact, the best evidence of the fool’s errand that campaign finance “reform” has been all along is found in comparisons between states with little and states with extensive campaign finance regulations: When it comes to corruption, there’s not a dime’s worth of difference between the regulated and the unregulated states.

But all those regulations have accomplished two things that should give liberals pause. First, by virtue of their sheer complexity and cost, they pose a serious impediment to those who would challenge incumbents, who already have a major leg up on reelection. And second, because we cannot limit private campaign contributions and expenditures altogether, thanks to the First Amendment, the regulations have led to money being diverted away from candidates and parties and into other, often unknown, hands, over which the candidates and parties have no control — by design. As a result, we see candidates today having to disavow messages underwritten by people who would otherwise, but for the regulations, have given directly to the candidate or the party. But that outcome was absolutely predictable – and was predicted. Two good reasons to end this campaign finance regulation folly and let individuals and organizations contribute and spend as they wish. What are we afraid of, freedom?

Campaign Finance: Don’t Confuse Me with the Evidence is a post from Cato @ Liberty - Cato Institute Blog

The New York Times devotes major space today to a story disclosing campaign spending by the U.S. Chamber of Commerce. They have uncovered some pretty shocking stuff. Apparently the Chamber of Commerce is raising money from businesses to fund campaign ads. The Times has the goods:

[A] review of the nearly 70 chamber-produced ads found that 93 percent of those that have run nationwide that focus on the midterm elections either support Republican candidates or criticize their opponents.

What is the world coming to? An organization can raise money and use it to support or criticize candidates for office? It’s almost like we have freedom of political speech in the United States. Shocking stuff.

The New York Times may not like freedom of speech much for those who disagree with its editorial line, but I am happy we have freedom of the press as well as of speech. The freedom of the press means I can get additional information about the funding of the current election.

The Wall Street Journal reports that the American Federation of State, County and Municipal Employees (AFSCME), a leading union of government employees, has raised and will spend the most money on the mid-term election. More shocking stuff!

AFSCME is spending money to support Democrats who in turn will be expected to tax and spend to add or to save … jobs for public employees! I thought businesses were the only organizations that engaged in self-interested politics. Apparently not.

But AFSCME has the right to raise and spend the $90 million, and so did George Soros, and so does every misguided and hapless person and organization that for some reason disagrees with me about everything. Freedom of speech does not mean the “freedom” to agree with me or the New York Times.

In sum, the silly season is upon us as election day looms. Be prepared for more “news reporting” about the demons that are “undermining our democracy.” And give thanks that we don’t have to depend on just one source of news or speech in coming to judgment on those who hold political power.

This Just In: People Engaged in Politics! is a post from Cato @ Liberty - Cato Institute Blog

You might have gotten the impression that spending by outside groups in the current election cycle will fund a “giant bullhorn” for Republican candidates in the current election cycle while Democrats and liberals will have to whisper.

Yet the Rothenberg Political Report finds:

Throughout the election cycle, the National Republican Congressional Committee trailed the Democratic Congressional Campaign Committee in available money by at least a 2-to-1 ratio.

A detailed story in the Wall Street Journal summarizes “the Democratic Party and candidates had raised a total of $1.25 billion so far for the election. The comparable GOP figure is $1.1 billion.”

The Democrats enjoy, in other words, a $150 million dollar advantage, if we look only at party fundraising.

Now consider the outside groups:

In total, outside conservative groups—such as the U.S. Chamber of Commerce, American Action Network and American Crossroads—could spend more than $300 million on TV advertisements, campaign mailings and other efforts to elect Republicans to Congress this year. Outside Democratic groups, by contrast, plan to spend about $100 million on those activities.

But don’t forget the labor unions:

The largest labor unions say they will spend $200 million combined, but most of their focus will be on rallying union voters.

I conclude that the outside GOP groups will raise almost exactly as much as outside Democratic groups and the labor unions combined. The Democratic Party, however, will still enjoy a significant fundraising advantage over the Republican Party.

The Republican outside groups thus tend to level what would have been, absent their activities, a very unequal playing field in 2010.

I am not certain whether this closing of what would have been a huge Democratic fundraising advantage has anything to do with all of the complaints about “secret groups undermining democracy.” What do you think?

Free Speech Means More Equal Speech is a post from Cato @ Liberty - Cato Institute Blog

Kenneth Vogel offers an unexpected insight into the nature of campaign finance regulation:

“[Wisconsin Senator Russell] Feingold faces an uphill battle against a novice opponent, who, perhaps ironically, has been the beneficiary of hundreds of thousands of dollars in ads attacking Feingold that would have been prohibited had McCain-Feingold remained intact.”

In other words, if Feingold’s campaign finance law had not proven to be contrary to the U.S. Constitution, he might well not be facing “an uphill battle” to serve a fourth term in Washington. The political speech that is causing Feingold problems would have been prohibited in that situation. But the First Amendment favors speech and not the re-election needs of senators.

Oddly, Vogel writes as if the freed political speech (“ads attacking Feingold”) is a bug rather than a feature of current law.

The Primary Purpose of McCain-Feingold Revealed is a post from Cato @ Liberty - Cato Institute Blog

Today POLITICO Arena asks:

Looking at the repeated failures of campaign finance reforms, is it time to end the restrictions?

My response:

Funny, we didn’t hear the primal scream about campaign finance from liberal Democrats during the 2008 campaigns, when money was pouring into their coffers from everywhere. Do we need any better evidence of the hypocrisy surrounding their screams this year? If so, turn to the lead editorial in this morning’s Wall Street Journal. It’ll tell you all you need to know about the campaign finance “reform” ruse that has been going on for years.

Time to End the Campaign Finance ‘Reform’ Ruse is a post from Cato @ Liberty - Cato Institute Blog

The New York Times has an odd story today on campaign finance on its front page. The story argues that organizations which do not have to identify their donors are sponsoring ads that criticize candidates for office. Complaints about secrecy notwithstanding, the third paragraph of the story discloses one of the major contributors to a group and reveals his putative interests in becoming involved. It also goes into great detail about the donor, his political associates, and even meetings his associates attended and what decisions were made therein. Later parts of the story recount the already disclosed names of supporters of Karl Rove’s efforts in this cycle. True, the story does not reveal everything the reporters believe should be disclosed about donors. But the groups and their donors are hardly secret given what is revealed in the story itself.

The story also cannot get its story straight. The Times‘ reporters evidently wanted to fit what they have found into a standard, “special interest” template: the organization in question – the American Future Fund – as a front for energy interests. The story also says the group has sponsored ads on general themes like too much spending,  Obamacare, and another stimulus. But the reporters are determined to see “suggestions of an energy-related agenda,” their own reporting notwithstanding. This forcing of facts into a template comes along with a recognition that the politics of energy and ethanol have become more complicated making it difficult to say what interests are actually being advanced in the American Future Fund effort.

So the story discloses, while decrying secrecy, and both asserts and denies the domination of special interests. In the end, the story holds fast to a simple, conventional theme which is then undermined by its reporting. We should admire, I guess, that the Times‘ reporters were willing to undermine their own narrative. But why not just embrace complexity? They are writing the first, not the final, draft of history.

The story also reports that donors desire anonymity because they wish to avoid taking sides in political disputes in public. The story does not say why they desire to avoid taking sides. Perhaps a quick call to the Koch family or George Soros might have provided an answer to that question.

The New York Times Undermines its Narrative is a post from Cato @ Liberty - Cato Institute Blog

Today POLITICO Arena asks:

Will President Obama’s campaign finance attacks on the U.S. Chamber of Commerce and others resonate with voters over the next three weeks?

My response:

With so many senior advisors leaving the White House so early in the term, you have to wonder who’s left to advise the president except, well — the president. And judging from his attacks on corporate campaign spending generally and the U.S. Chamber of Commerce in particular, you’re inclined to believe that that’s the case. After all, the attacks are perfectly consistent with the president’s larger agenda.

As others here at the Arena have noted, not since the New Deal have we seen so sustained an anti-business political agenda as has come from this president. Under such an assault, is it any wonder that businesses have created so few jobs, or that they’re fighting back? Yet for that, the president is criticizing them — with campaign finance claims that not even the New York Times finds credible.

This campaign finance angle has an especially unseemly air about it, however – see the Wall Street Journal’s editorial this morning about Democrats unleashing the IRS and Justice on donors to their political opponents. The effort to restrict the speech that campaign finance represents — promoted by the political establishment, especially Democrats — has always been at bottom about incumbency protection, not “good government.” We didn’t hear complaints when Obama abandoned the public financing system in 2008, for example, as “unconscionable” amounts of private money poured into his campaign. Obama may be barking now that the shoe’s on the other foot, but his bark rings as hollow as his agenda, which is why it’s not resonating with the voters, and is not likely to in the three weeks ahead.

Obama’s Attack on the Chamber of Commerce: Perfectly Consistent is a post from Cato @ Liberty - Cato Institute Blog

In 1998, after years of scandals ranging from governors being indicted to legislators taking bribes, Arizona passed the Citizens Clean Elections Act. This law was intended to “clean up” state politics by creating a system for publicly funding campaigns.

Participation in the public funding is not mandatory, however, and those who do not participate are subject to rules that match their “excess” private funds with disbursals to their opponent from the public fund. In short, if a privately funded candidate spends more than his publicly funded opponent, then the publicly funded candidate receives public “matching funds.”

Whatever the motivations behind the law, the effects have been to significantly chill political speech. Indeed, ample evidence introduced at trial in a lawsuit challenging the law showed that privately funded candidates changed their spending — and thus their speaking — as a result of the matching funds provisions. In elections, where there is no effective speech without spending money, the matching funds provision of the Clean Elections Act diminishes the quality and quantity of political speech.

In 2008, the U.S. Supreme Court in Davis v. FEC struck down a similar provision in the federal McCain-Feingold law in which individually wealthy candidates were penalized for spending their own money by triggering increased contribution limits for their opponents. Even this modest opportunity for opponents to raise more money was found to be an unconstitutional burden on political speech.

Cato has thus filed a brief supporting a request that the Supreme Court review the lower court’s decision upholding Arizona’s Clean Elections Act.  We highlight Davis (in which Cato also filed a brief) and numerous other cases that point to a clear conclusion: if the mere possibility of your opponent getting more money is unconstitutional, then the guarantee that your opponent will get more money (Arizona’s act automatically disburses matching funds) is even more so. Allowing the government to abridge political speech in this fashion not only diminishes the quality of our political debate, but it ignores the fundamental principle upon which the First Amendment is premised: that the government cannot be trusted to regulate political speech for the public benefit. 

The Supreme Court will decide later this fall whether to review this case, McComish v. Bennett.

Clean Elections Act Dirties the First Amendment is a post from Cato @ Liberty - Cato Institute Blog

The DISCLOSE Act, slightly modified, is headed for a cloture vote on Tuesday afternoon. The alterations to the bill have changed few minds outside of Congress. It remains to be seen whether the modification in the bill — the sponsor removed a passage allowing labor unions to transfer funds among its affiliates — will be enough to attract enough support to achieve cloture.

My policy analysis of DISCLOSE applies to the altered bill.

The Center for Competitive Politics provides an analysis of the altered bill here.

The American Civil Liberties Union is sending around a letter of opposition that states “we believe this legislation would fail to improve the integrity of our campaigns in any substantial way while significantly harming the speech and associational rights of Americans.”

The ACLU has four objections to the altered bill:

• The DISCLOSE Act fails to preserve the anonymity of small donors, thereby especially chilling the expression rights of those who support controversial causes.
• The DISCLOSE Act would chill not only express advocacy on political candidates, but also issue advocacy.
• The DISCLOSE Act imposes impractical requirements on those who wish to communicate using broadcast messages.
• The DISCLOSE Act imposes unjust restrictions on contractors, TARP participants and corporations with minimal foreign participation.

DISCLOSE Again and Maybe for the Last Time is a post from Cato @ Liberty - Cato Institute Blog