Congress Shall Make No Law

Tune in Tonight to Philosophy in Action

ssimpson@ij.org (Steve Simpson) — Wed, 09 Jan 2013 18:56:05 +0000

Fans of the Institute for Justice and MakeNoLaw.org should tune in tonight at 9:00 p.m. ET to Dr. Diana Hsieh's live Internet radio show, Philosophy in Action. My colleague Paul Sherman will be the guest, discussing campaign finance, the First Amendment, and the 2012 election. Here's more information on the show:

Many people support restrictions on spending in elections, particularly by corporations, in the name of "transparency" and "accountability." Institute for Justice attorney Paul Sherman takes a very different view. He claims that any restrictions on campaign spending are violations of freedom of speech, and he has successfully argued that view in courts across the country.

To join the live broadcast and its chat, just point your browser to Philosophy in Action's Live Studio a few minutes before the show is scheduled to start. By listening live, you can share your thoughts with other listeners and ask follow-up questions in the text chat.

If you miss the live broadcast, you'll find the audio podcast from the episode posted in the archive: Radio Archive: 9 January 2013.

For more about Philosophy in Action Radio, visit the Episodes on Tap and Show Archives.

Let's Talk About Really Big Money

psherman@ij.org (Paul Sherman) — Tue, 06 Nov 2012 00:54:55 +0000

With Election Day mere hours away, the Campaign Legal Center is taking a final swipe at the amount of money Americans are spending communicating with voters. Aghast that total election spending may pass $6 billion, the Center crunches the numbers on what that money could buy if it weren’t spent on political speech:

With $6 billion we could create 103,500 jobs in the United States.

With $6 billion you could buy 171,428,571,429 gallons of gas for your car - that's enough gas for 155,844,156 American households.

With $6 billion you could buy 1,734,104,046 gallons of milk - enough for 8,627,383 people for an entire year.

With $6 billion NASA could build 2 new Mars Rovers.

With $6 billion, 1.5 million students could receive Pell Grants to make college more affordable.

We won’t quibble with CLC’s numbers (except to note that milk is not 100 times more expensive than gasoline). But we will note that CLC’s list omits something else that could be done with $6 billion.

With $6 billion, we could fund the entire federal government . . . for 14 hours.

In the coming year, the federal government will spend $3.8 trillion. That’s really big money. And as long as the federal government controls that kind of money, there will be no shortage of individuals and groups willing to spend money to express their opinion on who should be holding the purse strings. Indeed, that’s why much of the growth in political spending has been driven by the growth of the federal budget.

At IJ, we don’t think $6 billion dollars is too much money for Americans to spend on political speech. In fact, we don’t think the amount of money Americans choose to devote to political advocacy is any of our business. In a free country, speakers can decide for themselves how much of their money and time they wish to spend making their views heard. But for those who do think that $6 billion could be put to better use, the solution is clear: Unless you reduce the amount of politics in money, you’ll never reduce the amount of money in politics.

Money (Still) Can't Buy Elections

pavelar@ij.org (Paul Avelar) — Mon, 10 Sep 2012 21:39:48 +0000

Another round of elections, another chance to relearn an old lesson: Money does not buy elections. This time, Politico learns that “In six of the most hotly contested GOP primary contests this cycle, the best funded candidate lost.”

That money does not buy elections is a fact that has been borne out time and again. But so many are so invested in the contrary myth that they just won’t let it go. Take Mike McCabe of the Wisconsin Democracy Campaign, who is quoted in the Politico piece as saying “It’s the exception to the rule. Ninety-five percent of the time, the candidate who spends the most wins.” But Mr. McCabe is getting cause and effect mixed up.

As Professor Jeffrey Milyo noted in a recent Freakonomics Quorum,

It is true that winning candidates typically spend more on their campaigns than do their opponents, but it is also true that successful candidates possess attributes that are useful for both raising money and winning votes (e.g., charisma, popular policy positions, etc.). This “reverse causality” means that campaign spending is potentially as much a symptom of electoral success as its cause.

Or, as Stephen Dubner put it, “winning an election and raising money do go together, just as rain and umbrellas go together. But umbrellas don’t cause the rain.”

So, we have yet more evidence that money does not buy elections. Instead, money facilitates speech. It buys exposure—the opportunity to make your speech heard by voters. It does not and cannot buy elections because the voters are ultimately the ones deciding who to vote for. And—contrary to the belief of “reformers”—voters do not just blindly embrace those campaigns with the most money for advertising.

Americans did not race out and embrace New Coke or the Ford Edsel just because big advertising campaigns said they should. Neither do they embrace Edsel-like candidates just because big advertising campaigns say they should.

An Overlooked First Amendment Dissent

psherman@ij.org (Paul Sherman) — Wed, 22 Aug 2012 14:50:59 +0000

The First Amendment Center has published an interesting post discussing important solitary dissents in the history of First Amendment law. Among their selections are Justice Harlan Stone’s dissent in Minersville School District v. Gobitis, arguing that public school students could not be required to salute the flag or recite the pledge of allegiance. Although Stone lost that battle, he ultimately won the war—his view became the law of the land just three years later in West Virginia Board of Education v. Barnette, which reversed Gobitis.

Absent from the list, though no less noteworthy, is Justice Clarence Thomas’ solo dissent in Citizens United v. FEC. Although that case produced a well-known 5-4 split on whether corporations and unions should be permitted to fund political advocacy, it also produced an 8-1 split on whether the group Citizens United could be forced to disclose the identities of those who funded its political speech. Justice Thomas alone dissented, arguing forcefully that “Congress may not abridge the ‘right to anonymous speech’ based on the ‘simple interest in providing voters with additional relevant information.’” It remains to be seen whether Thomas’ view of anonymous speech will ultimately prevail, but IJ is not alone in hoping that it will and fighting to make that happen.

For more on Justice Thomas’ arguments in support of anonymous speech, check out this short video featuring Cato Institute scholar Nat Hentoff:

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Free Speech v. FEC

psherman@ij.org (Paul Sherman) — Fri, 15 Jun 2012 13:48:32 +0000

The Federal Election Commission has been in many fights about free speech. But now it’s in a fight with free speech, or rather with “Free Speech,” the name taken by a group of three Wyoming residents who, represented by the Wyoming Liberty Group, yesterday filed a federal lawsuit against the FEC. And, for once, a case’s name—Free Speech v. FEC—reveals precisely what’s at stake.

The lawsuit focuses on an important, unresolved issue in campaign-finance law. Free Speech wants to engage in independent political speech, but cannot be sure whether or not its speech will trigger legal obligations that it register with the FEC and report information about its political activities. The group sought guidance from the FEC, but the law is so ambiguous that the FEC’s commissioners deadlocked, leaving Free Speech with no more information on how to comply with the law than it started with.

The legal issues in the case—which are detailed in Free Speech’s Complaint—are complicated. But the implications of this case could be profound. As economist Jeff Milyo of the University of Missouri detailed in Campaign Finance Red Tape, having to register as a political committee and deal with all of the associated legal requirements is a significant burden, particularly for small groups. A victory for Free Speech would remove many of these burdens and bring much-needed clarity to the law.

More information on the case, including case-filing documents, is available here.

States in which Citizens United made no difference demand it be reversed

psherman@ij.org (Paul Sherman) — Tue, 22 May 2012 13:50:24 +0000

In the hysteria that continues to surround the U.S. Supreme Court’s 2010 ruling in Citizens United v. FEC, one often-overlooked fact is that, at the time Citizens United was decided, 26 states already allowed for-profit corporations to spend unlimited amounts on political advertising (the 24 that prohibited spending are listed here). Many of these states also allowed corporations to make contributions directly to political candidates, and some, including Utah and Virginia, allowed unlimited corporate contributions directly to candidates.

That’s right—despite predictions that the corporate spending unleashed by Citizens United posed a dire threat to the Republic, such spending was already the norm in a majority of states, and there is not the slightest evidence that those states were any worse for it.

This fact is worth keeping in mind now that 22 states and the District of Columbia have submitted an amicus brief urging the Supreme Court to affirm the Montana Supreme Court’s ruling in the American Tradition Partnership case, which upheld Montana’s ban on corporate expenditures in clear defiance of the Supreme Court’s ruling in Citizens United.

The 22 states that signed the brief are:

Arkansas, California, Connecticut, Delaware, Hawaii, Idaho, Illinois, Iowa, Kentucky, Maryland, Massachusetts, Minnesota, Mississippi, Nevada, New Mexico, New York, North Carolina, Rhode Island, Utah, Vermont, Washington, West Virginia and the District of Columbia.

Of those states, however, only nine—Connecticut, Iowa, Kentucky, Massachusetts, Minnesota, New York, North Carolina, Rhode Island and West Virginia—prohibited corporate expenditures before Citizens United. The remaining 13 states and the District of Columbia not only permitted unlimited corporate expenditures, but also permitted corporations to make contributions directly to candidates (and recall that Utah actually permitted unlimited corporate contributions).

If one needed more evidence that much of the vitriol aimed at Citizens United is about scoring political points, and not about any principled opposition to that decision, this is it: 13 states signing onto a brief urging the reversal of a decision that had no effect on their laws.

Who Wants to Overturn Citizens United? Self-Serving Elected Officials.

wmaurer@ij.org (Bill Maurer) — Fri, 20 Apr 2012 19:15:01 +0000

Earlier this week the Huffington Post reported on a recent press conference in Washington, D.C., about efforts to amend the First Amendment to overturn Citizens United v. FEC. The headline read “Citizens United Amendment Urged By Grassroots, Federal Lawmakers.” In the story, U.S. Senator Tom Udall says, “We have developing here a grassroots movement.”

Who, exactly, are the “grassroots” to which they refer? According to the story, 14 people spoke at the press conference. Of the 14, 13 were elected officials; one was a private citizen.

In other words, approximately 93 percent of the people calling to overturn the decision were people currently in power—the very people who stand to benefit most from shutting down the independent political voices that Citizens United helped free. This was not the grassroots; at best, it was a grassroot (note the singular noun).

The make-up of the press conference tells us everything we know about the push to reverse Citizens United. Many elected officials—like those at this press conference—do not like other people’s free speech and they especially do not like it when critical speech is directed at them. If they succeed in amending the Constitution to overturn Citizens United, these same officials could pass laws that would make it impossible for people to amass enough resources to challenge their actions, thus effectively immunizing themselves from criticism.

This “grassroot” press conference demonstrates that the debate over Citizens United is not about “corporate personhood,” “fighting oligarchy” or “defending democracy.” It is about the desire of those in power to ensure that they remain free from criticism and political challenge. That is a particularly poor justification to start editing freedoms out of the First Amendment.

New Jersey Is the Least Corrupt State??? Really???

rfrommer@ij.org (Robert Frommer) — Wed, 04 Apr 2012 13:50:03 +0000

Some readers of Make No Law may have seen a recent study released by the Center for Public Integrity concluding that New Jersey is the state with the lowest risk of corruption in the country. Writing in The Wall Street Journal today, IJ Attorney Paul Sherman and University of Rochester Professor David Primo take a skeptical look at that study and uncover many problems:

For starters, the study never actually defines what it means by corruption. Instead, the risk of corruption is defined by the presence or absence of certain laws—such as strict campaign-finance limits and lobbying disclosure—that good-government groups promote. But without a working definition of corruption, it is impossible to determine whether these sorts of reforms are the appropriate remedy.

Is regulation of state insurance commissions, for example, as important as lobbying disclosure as a means to combat corruption? Who knows? The study gives equal weight to both. Yet that's like assuming aspirin is as good as a herbal supplement because some people think both can cure headaches.

Wall Street Journal subscribers can read the whole thing here.

Super PACs Turn Two!

psherman@ij.org (Paul Sherman) — Mon, 26 Mar 2012 13:29:06 +0000

Today is the two-year anniversary of the D.C. Circuit Court of Appeals’ unanimous ruling in SpeechNow.org v. FEC, holding that limits on the right of Americans to pool money to pay for independent political advertisements are unconstitutional. That ruling made possible the creation of so-called “super PACs,” which have played a major role in the 2012 Republican presidential primaries. The Institute for Justice is proud to have worked with the Center for Competitive Politics to represent the plaintiffs in SpeechNow.org, and is committed to defending that ruling in the courts of law and the court of public opinion.

More information:

IJ’s press release about anniversary

CCP’s press release

A brief history of super PACs

The End of the Beginning in Wisconsin

asanders@ij.org (Anthony Sanders) — Tue, 20 Mar 2012 21:05:04 +0000

Yesterday the Wisconsin Supreme Court issued a very anticlimactic decision in a challenge to one of the most speech-squelching laws in the country. The court split 3-3 over whether Government Accountability Rule 1.28 violates the First Amendment and the Wisconsin Constitution by requiring everyone to register with the government who, in the 60 days before a general election, spends more than $25 and so much as mentions a candidate for office in a negative or positive light. Three justices thought the rule was constitutional while the other three thought the case should not have been granted in the first place. The case was an “original action,” meaning it was only ever before the Wisconsin Supreme Court, so the legal effect of the case is it’s as though it never happened.

We have commented on this case before, and the Institute for Justice filed a friend-of-the-court brief (pdf) in the case last spring.

But, this isn’t the end of the story. There are two pending federal court challenges to Rule 1.28 that have been frozen in carbonite since the Wisconsin Supreme Court accepted the case in late 2010. Those lawsuits can now proceed, so stay tuned . . .