Agency Will Stop Treating Political Speech as Fair-Housing Violation
The California Department of Fair Employment and Housing has agreed to stop investigating citizens on the theory that their political expression in and of itself constitutes a potential violation of laws against housing discrimination. The concession came in a settlement with Julie Waltz, whom it had dragged through an investigation for publicly opposing the placement of subsidized group homes in and near her Norco, Calif. residence. A news release from the Center for Individual Rights:
During the year-long investigation, state investigators told Waltz that her speech violated state fair housing laws, requested that she refrain from her speech activities, and threatened her with prosecution. An investigator also told her that the investigation would end if she removed signs from her yard objecting to the next-door group home as well as signs posted by other people in her neighborhood. Waltz declined to remove the signs. …
Waltz was represented by the Los Angeles, CA firm of Munger, Tolles & Olson LLP, which donated its time pro bono and the Center for Individual Rights.
When it comes to trampling the First Amendment, California fair housing officials are serial offenders: in 2000 and again in 2006, CIR says, the Ninth Circuit handed down rulings restraining them from similar practices.
Lawrence Lessig’s Constitutional Amendment
Lawrence Lessig has proposed a constitutional amendment in response to the U.S. Supreme Court’s decision in Citizens United. It reads:
“Nothing in this Constitution shall be construed to restrict the power to limit, though not to ban, campaign expenditures of non-citizens of the United States during the last 60 days before an election.”
In Citizens United, the Court said that the First Amendment concerns speech rather than speakers. Congress has no power to discriminate against speakers; hence, a source of speech – people organized as a corporation – could not be prohibited from speaking (or funding speech).
Professor Lessig hopes to introduce a discrimination among speakers into the First Amendment. His proposed discrimination will not lose a popularity contest. He wishes to allow Congress to control the speech of non-citizens. He follows two lines of argument in support of his amendment, one less rational than the other.
The less rational line of appeal to the reader is both implicit and predictable. The Chinese are invoked along with the Chamber of Commerce. A denial of xenophobic intent follows immediately, and “We the People” appear near the end. Carl Schmitt would recognize the rhetorical construction of “friend and enemy.” Rather cleverly, Lessig manages to equate the foreign devils with the internal demons of the liberal mind. Corporations (including the Sierra Club?) and the Chinese (or other foreigner) are on one side of political struggles while “We the People” are on the other.
Discouraging Speech through Disclosure
David Price, a Democratic member of the House of Representatives from North Carolina, has introduced a bill, the Stand by Every Ad Act, to mandate disclosure of support for political speech by business and union officials.
Rep. Price cites three harms from such speech: “the opportunity for corporations, unions and associations to dominate the playing field, intimidating public officials and drowning out the candidates’ own messages.”
Notice that these alleged harms are caused by the speech itself and not by the fact that the speech might be anonymous. Notice also that Rep. Price provides no evidence at all that such harms will take place. Where would such evidence be found? Prior to McCain-Feingold, corporations and unions could fund speech. Several states also have permitted independent corporate expenditures. What happened in those years or those states to support Rep. Price’s extreme claims?
It is striking that two of the three harms cited by Rep. Price concern only members of Congress. He claims members will be intimidated or have their “own messages” drowned out. What Rep. Price does not say is how these problems for members of Congress would translate into problems for voters. Of course, such arguments about the welfare of voters exist, but they are not obvious to most people. Rep. Price, however, saw no need to make the connection between an alleged harm done to a member and the interests of voters. His argument is centered on the interests and concerns of incumbent members of Congress. Apparently members consider first their own interests in thinking about campaign finance regulations.
Rep. Price also ignores the fact that voters are likely to receive more information about candidates for office after Citizens United since the hand of the censor has been lifted.
Rep. Price clearly believes mandated disclosure by business and union leaders will effectively discourage them from speaking out during elections. Given that motivation behind the new disclosures laws, at what point does mandated disclosure translate into chilled speech?
One other disturbing part of Rep. Price’s case for his bill: he hopes to extend disclosure to the Internet. Of course, disclosure of Internet speech may well lead to other restrictions on speech online.
Populism: Good and Bad
Today, Politico Arena asks:
What is it about the word “populist”? (these days)
My response:
“Populist” (or “populism”), in its American usage, invokes the “common man,” yet the idea’s origins — in ”the people” or “the polis” — can be traced to ancient Greek democracy and, in particular, to political demagoguery. Both Plato and Aristotle had reservations about democracy as a system of government precisely because it was susceptible to corruption by populist appeals to superstition and error. In America, populism has had a long and varied history, but it is most often associated with the Populist Party that was formed in 1891 and, in particular, with the fiery speeches of the Democratic Party candidate for president in 1896 and 1900, William Jennings Bryan, and his famous ”cross of gold” speech at the 1896 Democratic National Convention.
Thus, in a fundamental way, populism stands opposed to elitism, yet it’s more complicated than that. On one hand, the populism of the late 19th and early 20th centuries contrasted with the Progressivism of the era, which held that society should be organized and run by “professionals” trained at the best schools. (Thus, the emergence of political “science,” as distinct from the older tradition of political philosophy.) But on the other hand, Progressives themselves purported to speak for “the people,” even if in practice they were often contemptuous of the people’s capacity to govern themselves, susceptible as the people were to the appeals of demagogues.
At the end of the day, therefore, populism is a double-edged sword. Used pejoratively, it stands for the idea that politicians, to obtain or preserve political power, will appeal to base popular sentiments or mistaken (often economic or legal) ideas. A good example is Obama’s reaction last week to the Supreme Court’s Citizens United decision, rooted in the First Amendment’s guarantee of political speech: He called it “a major victory for big oil, Wall Street banks, health insurance companies and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans.” There is an element of truth to that sentiment, of course, because the system of government that has evolved in America under the influence of Progressive “professionals” has endowed those professionals (read: the governing class, in all its reaches) with unprecedented power over “the people,” who often feel powerless as a result. But demagogic appeals like that or like others we’ve heard lately from Obama will only exacerbate that problem. By contrast, a “populist” appeal that seeks to return power to people (N.B.: I did not say, as in the ’60s, “power to the people”) – power to run their own lives, free from unwarranted government regulation or dependency — is a side of the idea we hear too seldom. Yet it’s what our founding documents are about. They established not simply popular government but limited popular government – ensuring the right of the people to govern themselves, not mainly through government but individually or in voluntary association with others. It is that liberty that Progressive elitists who “knew better” — the folks in Cambridge who voted 84 to 15 against Scott Brown — have gradually extinguished.
Think Tanks Should Be Able to Opine on Public Policy Without Running Afoul of Campaign Finance Regulations
In 2005, political opponents filed a complaint against the Independence Institute for not complying with the Colorado constitution and other campaign finance regulations when it spoke against a state ballot initiative. These regulations require, among other things, disclosure of the identity of anyone who has donated more than $20 to a cause and imposes registration and contribution limits on groups who have major interests in ballot issues.
The Independence Institute challenged the constitutionality of Colorado’s state ballot issue requirements and the issue is petitioning the Supreme Court for certiorari in Independence Institute v. Buescher. Cato has filed an amicus brief, in cooperation with Wyoming Liberty Group, the Center for Competitive Politics, the Sam Adams Alliance, the Montana Policy Institute, and the Goldwater Institute in support of the Independence Institute. We argue that Colorado’s ballot campaign regulations run roughshod over constitutional protections for political speech and association, which lie at the very heart of the First Amendment—particularly for think tanks and other organizations that regularly comment on public policy matters. Loss of these First Amendment protections will chill think tanks’ future attempts to educate the public about issues that are the subject of ballot campaigns. The Court should thus review this case and ensure that citizens maintain their associational rights—including the right to remain anonymous when donating to non-profits—and associations their freedom of expression.
You can download the entire brief here. A special thanks to Cato Legal Associate Travis Cushman for his assistance on this brief.
Wednesday Links
- More policymakers coming around to the idea that it is wrong to jail drug users as criminals.
- How Obama’s protectionist policies are hurting the poor.
- “Checks and balances” be damned: “In a democratic country, you’d think that before the executive branch could regulate CO2–a ubiquitous substance essential to life–the legislature would have to vote on the issue. But you’d be wrong.” Somewhere, Thomas Friedman is smiling.
- Podcast: Next week marks eight years since the U.S. invaded Afghanistan. It’s time to get out. Read the exit strategy.

