‘We Don’t Put Our First Amendment Rights In the Hands of FEC Bureaucrats’
I (and several colleagues) have blogged before about Citizens United v. Federal Election Commission, the latest campaign finance case, which was argued this morning at the Supreme Court. The case is about much more than whether a corporation can release a movie about a political candidate during an election campaign. Indeed, it goes to the very heart of the First Amendment, which was specifically created to protect political speech—the kind most in danger of being censored by politicians looking to limit the appeal of threatening candidates and ideas.
After all, hard-hitting political speech is something the First Amendment’s authors experienced firsthand. They knew very well what they were doing in choosing free and vigorous debate over government-filtered pablum. Moreover, persons of modest means often pool their resources to speak through ideological associations like Citizens United. That speech too should not be silenced because of nebulous concerns about “level playing fields” and speculation over the “appearance of corruption.” The First Amendment simply does not permit the government to handicap speakers based on their wealth, or ration speech in a quixotic attempt to equalize public debate: Thankfully, we do not live in the world of Kurt Vonnegut’s Harrison Bergeron!
A few surprises came out of today’s hearing, but not regarding the ultimate outcome of this case. It is now starkly clear that the Court will rule 5-4 to strike down the FEC’s attempt to regulate the Hillary Clinton movie (and advertisements for it). Indeed, Solicitor General Elena Kagan — in her inaugural argument in any court — all but conceded that independent movies are not electioneering communications subject to campaign finance laws. And she reversed the government’s earlier position that even books could be banned if they expressly supported or opposed a candidate! (She went on to also reverse the government’s position on two other key points: whether nonprofit corporations (and perhaps small enterprises) could be treated differently than large for-profit business, and what the government’s compelling interest was in prohibiting corporations from using general treasury funds on independent political speech.)
Ted Olson, arguing for Citizens United, quickly recognized that he had his five votes, and so pushed for a broader opinion. That is, the larger — and more interesting — question is whether the Court will throw out altogether its 16-year-old proscription on corporations and unions spending their general treasury funds on political speech. Given the vehement opposition to campaign finance laws often expressed by Justices Scalia, Kennedy, and Thomas, all eyes were on Chief Justice Roberts and Justice Alito, in whose jurisprudence some have seen signs of judicial “minimalism.” The Chief Justice’s hostility to the government’s argument — “we don’t put our First Amendment rights in the hands of FEC bureaucrats” — and Justice Alito’s skepticism about the weight of the two precedents at issue leads me to believe that there’s a strong likelihood we’ll have a decision that sweeps aside yet another cornerstone of the speech-restricting campaign finance regime.
Citizens United and Supreme Court Precedent
My old friend E. J. Dionne of the Washington Post writes that the Citizens United v. FEC rehearing on Wednesday is “A Test Case for Roberts.” Because, you see, Chief Justice John Roberts said in his confirmation hearings that “it is a jolt to the legal system when you overrule a precedent. Precedent plays an important role in promoting stability and evenhandedness. It is not enough — and the court has emphasized this on several occasions — it is not enough that you may think the prior decision was wrongly decided.”
Dionne says that if Roberts and the Court overturn the precedents that seem to point to banning a movie with a political agenda because it was produced by a nonprofit corporation, “he will unleash havoc in our political system and greatly undermine the legitimacy of the court he leads.”
I disagree with Dionne on the scope of the First Amendment’s protection of free speech. But I sort of admire him for staking out such a strong stand in favor of precedent and “settled expectations.” After all, a firm commitment to precedent can lead to some uncomfortable positions. Given the firmness of Dionne’s reliance on the importance of precedent and “settled expectations” to “the legitimacy of the court,” I assume he has opposed previous cases where the Court overturned settled law and its own precedent. Such as Brown v. Board of Education, which overturned a 58-year-old case, Plessy v. Ferguson. And Lawrence v. Texas, which overturned a 17-year-old precedent that had upheld state sodomy laws.
Or surely he does not mean that only precedents he approves of are deserving of respect and vital to the legitimacy of the court?
Hillary: The Movie
The Supreme Court is soon to hear a case that may drastically roll back campaign finance regulation in the United States:
The case involves “Hillary: The Movie,” a mix of advocacy journalism and political commentary that is a relentlessly negative look at Mrs. Clinton’s character and career. The documentary was made by a conservative advocacy group called Citizens United, which lost a lawsuit against the Federal Election Commission seeking permission to distribute it on a video-on-demand service. The film is available on the Internet and on DVD. The issue was that the McCain-Feingold law bans corporate money being used for electioneering.
The right position for the Court is that McCain-Feingold, and all other campaign finance regulation, constitutes unconstitutional limitation on free speech. This means reversing the Court’s 1974 Buckley v. Valeo decision, which held that government limits on campaign spending were unconstitutional but limits on contributions were not.
This distinction is meaningless. If it is OK for a millionaire to spend his own money promoting his own campaign, why can he not give that money to someone else, who might be a more effective advocate for that millionaire’s views, so that this other person can run for office?
More broadly, campaign finance regulation is thought control: it takes a position on whether money should influence political outcomes. Whether or not one agrees, this is only one possible view, and freedom of speech is meant to prevent government from promoting or discouraging particular points of view.
It would be a brave step for Court to reverse Buckley, but it is the right thing to do.
For more background on the case, watch this:
600 Billion Data Points Per Day? It’s Time to Restore the Fourth Amendment
Jeff Jonas has published an important post: “Your Movements Speak for Themselves: Space-Time Travel Data is Analytic Super-Food!”
More than you probably realize, your mobile device is a digital sensor, creating records of your whereabouts and movements:
Mobile devices in America are generating something like 600 billion geo-spatially tagged transactions per day. Every call, text message, email and data transfer handled by your mobile device creates a transaction with your space-time coordinate (to roughly 60 meters accuracy if there are three cell towers in range), whether you have GPS or not. Got a Blackberry? Every few minutes, it sends a heartbeat, creating a transaction whether you are using the phone or not. If the device is GPS-enabled and you’re using a location-based service your location is accurate to somewhere between 10 and 30 meters. Using Wi-Fi? It is accurate below 10 meters.
The process of deploying this data to markedly improve our lives is underway. A friend of Jonas’ says that space-time travel data used to reveal traffic tie-ups shaves two to four hours off his commute each week. When it is put to full use, “the world we live in will fundamentally change. Organizations and citizens alike will operate with substantially more efficiency. There will be less carbon emissions, increased longevity, and fewer deaths.”
This progress is not without cost:
Read the rest of this post »
A Chance to Rethink How We Regulate Political Speech
At the March 24 argument in Citizens United v. Federal Election Commission, the U.S. government argued that Section 203 of the Bipartisan Campaign Reform Act of 2002 (otherwise known as McCain-Feingold) permits the FEC to ban corporations, including ideological nonprofits like Citizens United, from making independent expenditures on films, books, or even “a sign held up in Lafayette Park.” The jurisprudential justification for this extraordinary and shockingly expansive view of the government’s power to suppress political speech traces to the Supreme Court’s 1990 decision in Austin v. Michigan Chamber of Commerce. In Austin, the Court held that Michigan had a compelling state interest in banning political speech funded with wealth accumulated using the corporate form. Though the Court contended that such speech, because it bears little correlation to public support for the political ideas expressed, constituted a “different type of corruption,” in reality it upheld Michigan’s statute as a “counterbalance” to the “distorting” and “unfair” influence corporate funds could have on the outcome of elections.
This relative-equality rationale—suppressing disfavored speakers to enhance the voice of other government-favored speakers—is antithetical to core First Amendment protections and elsewhere has been expressly rejected by the Court (in Buckley v. Valeo and, more recently, in Davis v. FEC). Accordingly, to decide Citizens United’s appeal, the Court ordered rebriefing and reargument on Austin’s continuing validity.
On Friday, Cato filed its brief, the second we’ve filed in the case. We argue that Austin, and the part of McConnell v. FEC that upheld Section 203’s facial validity, are not entitled to stare decisis deference and should thus be overturned. These relatively recent decisions are poorly reasoned, have engendered no reliance interests (no one relies on less freedom of speech), and have spawned an unworkable and irrational campaign finance system in which the government rations different levels of permissible political speech to otherwise equally situated speakers.
The case will be reargued September 9, in a special session about a month before the official start of the Court’s new term.
Here’s a Cato Institute video detailing some elements of the original Citizens United oral argument:
The Roberts Revolution to Come
As I mentioned yesterday, the U.S. Supreme Court surprised many people by ordering a reargument in the case of Citizens United v. Federal Election Commission. Specifically, the Court called for the parties to the case to address the question of overruling Austin v. Michigan Chamber of Commerce.
The Court decided Austin v. Michigan Chamber of Commerce in 1989. The state of Michigan had prohibited corporations from spending money on electoral speech. In the case in question, the Chamber of Commerce wished to pay for an advertisement backing a candidate for the House of Representatives. The Chamber took this action on its own and not in tandem with the candidate or his party. Paying for the ad was a felony under Michigan law.
A majority of the Court in 1989 said the Michigan law did not violate the First Amendment. However, the majority had a problem. Previous cases permitted limits on funding electoral speech only in pursuit of a compelling state interest: the prevention of quid pro quo corruption or its appearance. The Court had also ruled that independent spending by groups could not corrupt candidates.
So the majority needed a novel rationale for approving Michigan’s suppression of speech. The majority concluded that speech funded by corporations would distort the democratic process and that the state could prohibits such outlays to prevent harms done by “immense wealth.” In other words, the Austin majority tried to redefine “corruption” as “inequality of influence.” That revision had its own set of problems. Buckely v. Valeo, the Ur-decision in campaign finance, had excluded equality as a compelling state interest justifying regulation of campaign finance.
It is easy to see why the Buckley Court had rejected equality of influence as a reason for restricting political speech. Imagine Congress could prohibit speech that had “too much influence.” But how could that be determined? A majority in Congress would be tempted to suppress speech that threatened the power of that majority. Paradoxically, the equality rationale would strengthen those who already held power while vitiating representative government. The First Amendment tries to prevent that outcome.
In last year’s decision in Davis v. FEC, the Court again rejected the equality rationale for campaign finance laws. More and more the Austin decision is looking like bad law.
Justices Kennedy and Scalia, both current members of the Court, wrote dissents in Austin. Justice Thomas has called for Austin to be overruled in other contexts. Neither Justices Roberts nor Alito is likely to vote to uphold Austin (or the relevant parts of McConnell v. FEC for that matter). But it would seem that either or both of them were unwilling to strike down a precedent without a formal hearing. That hearing will come on September 9 with a decision expected by Thanksgiving.
Almost six years after the Court utterly refused to defend free speech in McConnell v. FEC, the Roberts Court may be ready to vindicate the First Amendment against its accusers in Congress and elsewhere.
Free Speech v. The Federal Election Commission
The so-called Citizens United case offers the Supreme Court a chance to severely curtail the free speech abuses of the Federal Election Commission. John Samples, Director of the Cato Institute’s Center for Representative Government, Institute for Justice Senior Attorney Steve Simpson and George Mason University law professor Allison Hayward weigh in. You can subscribe to Cato’s YouTube videos here and our Weekly Video podcast here.
Freedom of Speech Under Attack in Ecuador
Freedom of speech is coming under attack again in President Rafael Correa’s Ecuador. Last year Correa sent armed soldiers before dawn to some 200 private businesses, including three television stations, on the pretext that the owner (an unpopular businessman and critic of the government) had not paid money owed to the government.
It was never clear why the government had to place its own people in charge of running those businesses rather than go through the usual auditing or bankruptcy procedures. The result was to reduce criticism of the government at those TV stations and send a message to the rest of the media. At the time, Gabriela Calderón, Cato’s Ecuador-based editor of our Spanish language web site, www.elcato.org, hosted a weekly talk show program on CN3 TV station with two other market-liberal commentators. The station was one of the ones taken over, after which, Gabriela and her colleagues were told that from then on, their show had to “balanced” and include pro-government spokespersons. Gabriela and her colleagues quit in protest and the show went off the air.
Now Correa is enforcing a law that explicitly violates freedom of speech. Ecuador has been an officially dollarized country since 2000, before Correa came to power. Years of high oil prices have financed an explosion in government spending. With oil prices down, Correa’s populist project is quickly running out of money and people are speculating that he will de-dollarize Ecuador, allowing him to run the printing presses. However, it is illegal in Ecuador to suggest that the country will de-dollarize, as that would violate the law against spreading rumors of devaluation. The first victim has been Rómulo López Sabando, an attorney and long-time columnist for the Diario Expreso. On March 24 he wrote a column indicating that the government is planning to dedollarize. For committing that crime, the government ordered his arrest. He has been in hiding since.
It’s a very good bet that the government will de-dollarize this year, yet the Ecuadorian press has been silent on the matter. As the law victimizes the press and, more generally, Ecuadorian democracy, López remains in hiding and the arrest warrant still holds. Will Obama and other hemispheric leaders meeting at the summit of the Americas later this week denounce these abuses?
Why We Fight
Neal McCluskey’s classic Cato Policy Analysis, “Why We Fight: How Public Schools Cause Social Conflict,” is vindicated once again by the tiff over whether a porn film will be screened on the University of Maryland campus.
At this writing, students intend to go ahead with a showing of “Pirates II: Stagnetti’s Revenge” despite threats from a state senator to withhold funding for the university if the film is screened.
Many people object to porn for legitimate reasons. The question is whether the state should weigh in on the subject, pitting the moral views of some against the speech rights of others.
Says McCluskey:
Throughout American history, public schooling has produced political disputes, animosity, and sometimes even bloodshed between diverse people. Such clashes are inevitable in government-run schooling because all Americans are required to support the public schools, but only those with the most political power control them.
Hopefully, the students are learning the relevant free-speech lesson from this episode: Government funds always come with strings, including strings that threaten free speech.
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