Event Reminder: CCP-Cato Institute Conference on January 26, 2015: The Past and Future of Buckley v. Valeo
On January 30, 1976, the United States Supreme Court handed down Buckley v. Valeo, still its most important decision at the intersection of campaign finance and the First Amendment. The Court brought forth a per curiam opinion that invalidated significant parts of the 1974 amendments to the Federal Election Campaign Act. The Buckley Court denied Congress the power to limit campaign spending. But not completely. The same Court decided Congress could restrict contributions to candidates to prevent quid pro quo corruption or “the appearance of corruption.” Giving citizens an “equal voice” in elections, however, could not justify suppressing speech.
Buckley remains a vital precedent that restrains and empowers Congress. But should Buckley be considered a First Amendment failure? Or did it embrace inevitable compromises that were both worse and better than everyone desired? How does Buckley affect the law and American politics and campaigning today? Does the decision have a future? Please join us to discuss these essential questions of First Amendment law and politics.
The January 26 event is free of charge and will be held at The Cato Institute at 1000 Massachusetts Avenue, NW in Washington, DC. The program will begin at 9:00 AM and conclude at 12:30 PM with a luncheon to follow. More information, including an agenda and a full list of great speakers can be found here. All those interested in attending should RSVP at the following link. As of now, this event is scheduled to occur as planned. If the event is postponed due to the ongoing effects of the blizzard in the area, that information will be available here.
Free Speech
Detroit News: Michigan progressives’ find inner Citizens United
Steve Klein
Gov. Rick Snyder signed a comprehensive campaign finance bill into law on Jan. 6, Senate Bill 571. It generated quite the clamor, including accusations that the bill includes a “gag order” against public officials…
Let’s not kid ourselves: school mailers “informing” residents about an upcoming tax vote usually include only the rosiest portrayals of school taxes. Nevertheless, like “sham issue ads” from corporations and unions it is better to respond to speech with which we disagree with our own speech, not censorship or red tape. Unlike McCain-Feingold’s broad prohibition, which festered for the better part of a decade before it was overturned, it appears Michigan’s provision will be amended legislatively before it does any damage.
Institute for Justice: Politicians Sue Colorado Mom into Silence Over Newspaper Ads
Chris Dobrogosz
Last September, Tammy Holland, a mom from Strasburg, Colorado, took out two ads in her local newspaper, The I-70 Scout. The ads alerted the public to an upcoming school board election and urged voters to familiarize themselves with all of the candidates, including the six candidates who would be competing with incumbent school board members. Tammy did not endorse any particular candidate; she just wanted voters to know their options. For the ads, Tammy found herself sued not once, but twice, by school board officials who sought to silence her speech.
“I never would have imagined that in America I could be sued simply for putting an ad in my local newspaper,” said Tammy. “If this can happen to me, this can happen to anyone who voices their opinion about politicians or political issues.”
FEC
Roll Call: Appeals Court, in Defeat for Van Hollen, Backs Campaign Rule
Todd Ruger
The U.S. Court of Appeals for the D.C. Circuit rejected a challenge from Rep. Chris Van Hollen, D-Md., over the FEC’s rule about reporting backers of “electioneering communications,” or advertisements that picture or name candidates on the eve of an election.
The FEC requires public reporting only of donors who earmark their contributions for those ads, a regulation Van Hollen said was too narrow and contrary to a 2002 that bans so-called soft money. Van Hollen’s office didn’t have an immediate comment on the ruling.
Government Executive: Federal Election Commissioner Aligns With Campaign Finance Reformers
Charles S. Clark
A sitting Federal Election Commissioner on Thursday joined scholars and activists to declare the nation’s current campaign finance practices in crisis and in need of urgent reform since the proliferation of “dark money” following the Supreme Court’s 2010 ruling in Citizens United.
Ann Ravel, a Democratic appointee to the six-member commission who was chairman in 2015, told the audience of hundreds at the Brookings Institution that “the FEC should be a leader in restoring public confidence in institutions, but instead it is broken and ineffective.”
Congress
Tampa Tribune: The trouble with Jolly’s feel-good, check-squashing legislation
Tom Jackson
The real troubles with Jolly’s proposal are twofold: It offends the First Amendment, and it assumes there is nothing to be done about the cap on individual contributions that made soliciting such a time suck in the first place.
The First Amendment issue is both straightforward and acknowledged by the Supreme Court: Because it facilitates the dissemination of political messages, money is speech. Given the court’s steady, if incremental, dismantling of previous unconstitutional reforms, justices almost certainly would disapprove a law that prevents federal officials from asking for the fuel that powers their campaigns.
If the goal is to get lawmakers off the phone and back into committee meetings, the surest fix — and the direction the court seems to be headed anyway — would be to eliminate the cap on individual donations to candidates while strengthening disclosure mandates.
Citizens United
Reason: Sanders and Clinton Both Want to Overturn Citizens United, but Neither Knows How
Jacob Sullum
Clinton, by contrast, complains that the spending allowed by Citizens United is “drowning out the voices of ordinary Americans and distorting our democracy.” That suggests campaign finance regulations serve the constitutionally dubious goal of maintaining “balance” in political debates, making sure that everyone gets a fair hearing and no one talks too much. That rationale, unlike the goal of preventing corruption, has never been fully embraced by the Supreme Court (although a 1990 decision, overturned in Citizens United, nodded in that direction). In a 1996 law review article, future Justice Elena Kagan, who as solicitor general represented the government in Citizens United, deemed it well established that “the government may not restrict the speech of some to enhance the speech of others.”
Koch Brothers
New York Post: Why the Koch brothers drive liberals nuts
Jonah Goldberg
Well, here’s Mayer’s explanation of their dark and sinister ambitions: “What people need to understand is the Kochs have been playing a very long game,” she told NPR’s Steve Inskeep. “And it’s not just about elections. It started four decades ago with a plan to change how America thinks and votes. So while some elections they win and some elections they lose, what they’re aiming at is changing the conversation in the country.”
Dear God, it’s worse than I thought! They want to change the conversation! They want to persuade Americans to vote differently! The horror, the horror.
You might be forgiven for thinking that this is pretty much exactly what democracy is about. But no.
For you see, only Hollywood, college professors and administrators, the ACLU, People for the American Way, the Human Rights Campaign, NARAL, Black Lives Matter, Occupy Wall Street, MoveOn.org, the NAACP, the Union of Concerned Scientists, Greenpeace, Tom Steyer, Michael Bloomberg, George Soros, Steven Spielberg and, of course, publications such as The New York Times, The New Republic, The Nation and Mayer’s own New Yorker are allowed to try to change conversations and argue for people to vote differently.
Candidates and Campaigns
New York Times: Bloomberg, Sensing an Opening, Revisits a Potential White House Run
Alexandra Burns and Maggie Haberman
Michael R. Bloomberg has instructed advisers to draw up plans for a potential independent campaign in this year’s presidential race. His advisers and associates said he was galled by Donald J. Trump’s dominance of the Republican field, and troubled by Hillary Clinton’s stumbles and the rise of Senator Bernie Sanders of Vermont on the Democratic side.
Mr. Bloomberg, the billionaire former mayor of New York City, has in the past contemplated running for the White House on a third-party ticket, but always concluded he could not win. A confluence of unlikely events in the 2016 election, however, has given new impetus to his presidential aspirations.
Washington Post: A strong independent presidential candidate would be a nightmare
Norman J. Ornstein
But what would that mean in practice? For an independent candidate, at best, it would mean three candidates splitting the popular vote, probably roughly a third apiece, with the independent edging out the others with perhaps 35 percent. But that would mean little for the outcome. Presidential contests are decided by electoral votes. An independent might well secure some electoral votes, but in such a race, no candidate would come close to the majority of 270 required, under the Constitution, for victory.
What then? The Constitution says that if no candidate gets a majority of electoral votes, the election moves to the House of Representatives.
Wall Street Journal: Ted Cruz, Star Wars Fan, Declines to Sign ‘Jedi Pledge’ on Campaign Finance Reform
Janet Hook
Mr. Cruz, speaking at St. Anselm College’s Institute of Politics, was given the toy saber by a questioner who heaped praise on the senator’s nuanced knowledge of Star Wars. But that led into a request for Mr. Cruz to sign the “Jedi Pledge” to help overturn the “Death Star”—the 2010 Supreme Court decision, known as Citizens United, that lifted restrictions on corporate spending on political campaigns.
“Would you sign a pledge to undo the damage that Citizens United” has caused, said the questioner.
Mr. Cruz said the metaphor-laden query was “the most unique question” he had gotten from a voter, but was unmoved from his support for the Citizens United decision. Like many Republicans he argues that unfettered campaign giving is a form of free speech.
“I believe in free speech,” Mr. Cruz said. “Campaign finance reform is one of the most misunderstood issues in American politics.”
Reason: The Bernie Sanders Delusion
Matt Welch
The Naderite/Bernist faith in the popularity of their ideas is part of their unlikely charm (one shared in similar fashion, if not ideology, by Ron Paul). They come off as incorruptible, genuine and principled, all rare and attractive traits in politicians. But charming delusions are still delusional, and Sanders fans who are convincing themselves about the majoritarian appeal of Bernie’s policies (even the ones I agree with!) will surely be in for quite a shocker if that rubber meets the road in federal policymaking.
The States
KBZK Bozeman: Motl outlines campaign-finance case against GOP Rep. Wittich
Mike Dennison
Montana’s top political cop, relying on a trove of emails and other documents, is alleging a clandestine group of political consultants and front groups broke state campaign laws when they helped conservative, Republican legislative candidates in 2010.
Commissioner of Political Practices Jonathan Motl also says these documents reveal that a prominent anti-labor group, the National Right to Work Committee, was the driving force behind these groups that operated not only in Montana, but other states.
Burlington Free Press: Report clears Sorrell, questions remain
April Burbank
The resulting 14-page report, which came out Friday, finds no basis for prosecution against Sorrell but leaves space for future investigation into some of the issues, including an Attorney General’s Office legal contract that has been flagged by the New York Times and Seven Days.
“I’ve been saying all along I didn’t do anything wrong,” Sorrell said.
Toensing dismissed the findings because investigators did not use subpoenas.
“This is what is known as a country club or gentlemen’s investigation and its outcome was inevitable,” Toensing said in an email.
Politico New York: Schneiderman: JCOPE rule would unfairly target AG, comptroller
Colby Hamilton
A decision by the Joint Commission on Public Ethics to wade into the state’s campaign finance system produced a stern letter from Attorney General Eric Schneiderman’s office on Friday, after the ethics commission released its latest draft of a proposal to limit contributions by state elected officials who have “enforcement powers” over potential donors.
The letter, signed by Schneiderman’s deputy counsel Leslie Dubeck, criticized the proposal for unfairly targeting only two of the three statewide offices, that of the attorney general and comptroller. (The other statewide office is, of course, the governor.)
