Our inimitable Luke Wachob notes that “reformers,” after complaining for years about the FEC’s bipartisan makeup, have now decided to complain about its “partisan” makeup. Apparently, the “reformers” have decided that complaining about bipartisanship just doesn’t resonate with voters. So, in a bit of doublespeak, why not change “bipartisan” to “partisan?” After all, a rose by any other name, and all that. “Extremism in the defense of regulation is no vice; moderation in the pursuit of limiting speech is no virtue,” seems to be the operational principle.
Meanwhile, here’s a another bit of “reformer” doublespeak. John Howe, a former one-term state senator from Minnesota now running for Congress, has joined a group that is suing in hopes of overturning SpeechNow.org v. FEC. Says Howe:
“We’re not challenging anybody’s free speech. If you want to spend a billion dollars in your name and spend it, that’s fine. But when you give it to a third party organization, and we don’t know whose money it is, and it’s used in such a way that it corrupts the political system, we need to address it.”
Now, we here at CCP are pretty familiar with SpeechNow.org, the case. We were, after all, the plaintiffs’ counsel, along with our friends at the Institute for Justice. And the head of SpeechNow, David Keating, would later become, and still is, the President of CCP. SpeechNow was a 9-0, en banc decision of the U.S. Court of Appeals for the D.C. Circuit. The FEC and U.S. Solicitor General chose not to appeal the decision to the Supreme Court. It has since been followed by every court to take up the issue, including more than half the federal circuits.* And what the case holds is that individuals may pool their resources to make independent expenditures in political races. The case did not alter disclosure laws. So the idea that overturning SpeechNow is just about wanting to know “whose money it is” is, well, Howe shall we put it? BS? Overturning SpeechNow is about limiting people’s political participation.
Don’t believe it? Well, let’s see what Mr. Howe’s own complaint says:
16. Mr. Howe faces the strong risk that unregulated super PAC contributions will be used in an attempt to influence federal elections in which he is a candidate. If the FEC does not faithfully enforce §30116 [§30116 imposes contribution limits on independent expenditure organizations – it has nothing to do with disclosure – CCP], he will be open to attack, particularly during critical time periods just before the election, in broadcast advertising campaigns mounted by groups created to evade contribution limits imposed by Congress.
The complaint goes on to allege that “no political committee may knowingly accept any contribution in violation of the limits of §30116.” “Count I,” which deals with the nefarious group that might criticize Mr. Howe, House Majority PAC, alleges that “House Majority PAC has violated §30116(f) by accepting contributions that substantially exceed the $5000 limit… .”
At no point does the complaint allege disclosure violations against any of the named respondents.
We like to think that Mr. Howe is just ill-informed rather than engaged in intentional doublespeak aimed at misleading people about the nature of his lawsuit. Probably the “reformers” have told him that “this is just about disclosure”** – that’s a favorite line. They quite likely even wrote the quote that is attributed to him. But maybe not.
Let’s be clear: Overturning SpeechNow.org v. FEC, which is the aim of this lawsuit, is about limiting the ability of citizens to come together and speak in support of or opposition to candidates for office. Beyond the simple fact of expanding freedom, SpeechNow.org has benefited our democracy, opened up the political system, forced entrenched incumbents to defend their records where, in the past, they could have skated by, and given life to many candidates who, in the past, would not have had the resources to launch a viable campaign.
As Mr. Howe’s portion of the complaint notes, he doesn’t like being “attacked,” (an odd fear, since Super PACs actually tend to be more positive than negative). But “attacked,” when used by a politician, is too often a synonym for simply being criticized or having one’s record discussed in unfavorable terms.
What Mr. Howe and his co-plaintiffs seek is not more disclosure, but muzzling their opposition. That is the purpose of this lawsuit. Either Mr. Howe is unaware of this, or he is engaged in more “reformer” doublespeak.
* See Catholic Leadership Coalition of Texas v. Reisman, 764 F.3d 409 ( 5th Cir. 2014); New York Progress and Protection PAC v. Walsh, 733 F.3d 483 (2d Cir. 2013); Texans for Free Enterprise v. Texas Ethics Comm’n, 732 F.3d 535, (5th Cir. 2013); Republican Party of New Mexico v. King, 741 F.3d 1089, (10th Cir. 2013); Wisconsin Right to Life State PAC v. Barland, 664 F.3d 139 (7th Cir. 2011); Thalheimer v. City of San Diego, 645 F.3d 1109, (9th Cir. 2011) Long Beach Area Chamber of Commerce v. City of Long Beach, 603 F.3d 684 (9th Cir. 2010); Fund for Louisiana’s Future v. Louisiana Board of Ethics, 17 F.Supp.3d 562 (E.D. La. 2014); Hispanic Leadership Fund, Inc. v. Walsh, 42 F.Supp.3d 365 (N.D.N.Y. 2014); Carey v. Federal Election Comm’n,
** “Just disclosure” turns out to be a bit more complicated than many people, and we suspect Mr. Howe, think. See Bradley A. Smith, Disclosure in a Post-Citizens United Real World, 6 U. St. Thomas J.L. & Pub. Pol’y 257 (2012).
