In the News
SSRN: Free Speech, Fair Elections, and Campaign Finance Laws: Can They Co-Exist?
By CCP Academic Advisor Joel M. GoraA prominent politician once observed that, “You can either have free speech or fair elections, but you can’t have both.” In the view of this article, that has it precisely backwards. In fact, you cannot have one without the other. The election of 2012 tested that thesis because it was the most expensive federal election in history and it contained what many claimed was a great deal of negative campaign speech and rhetoric. This paper argues that, under the First Amendment, election speech is supposed to be “uninhibited, robust and wide-open” and unrestrained in both quantity and content. Accordingly, the increase in campaign spending and activity by candidates, parties, non-profits organizations, labor unions, corporations and so-called “super pacs” is a good thing for free speech principles and democracy, not a bad thing, and efforts to impose greater limitations on campaign funding should be opposed. The same is also true for the supposed increase in the “negative” nature of the content of much campaign speech. There too a proper view of the First Amendment would applaud and encourage such robust debate about core issues of governance. The article concludes by advocating a number of reforms which will make our electoral speech even more vigorous than it is now.
CCP
Brief: Vague Criminal Laws Threaten First Amendment
By Joe TrotterThe Center for Competitive Politics (CCP) filed a friend-of-the-court brief with the U.S. Supreme Court on Wednesday urging that the Court hear a case and clarify that legal campaign contributions cannot be used to imply the existence of an illegal quid pro quo.“For forty years, the U.S. Supreme Court has consistently held that political contributions are protected First Amendment activity,” said Legal Director Allen Dickerson. “Yet, the D.C. Circuit’s opinion permits the government to use records of legal, constitutionally protected contributions as evidence of a lobbyist’s corrupt intent—even when precisely zero evidence exists to connect the contribution to any specific act by a legislator. The First Amendment cannot be squared with a system where the threat of incarceration accompanies the mere act of writing a check to support a candidate of one’s choice.”The brief was filed in support of certiorari in the case of Ring v. United States. John Cline, a highly regarded criminal defense lawyer based in San Francisco, joined Dickerson in representing CCP.The brief warns that “Lower courts have permitted juries to infer corruption in honest service statues and similar criminal laws in cases where conduct is consistent with protected First Amendment activity. . . The D.C. Circuit’s decision in Ring exacerbates uncertainty about what constitutes protected activity, creating a chilling effect on First Amendment activities.”
Spending and Amending: The Past and Future of Citizens United (Part Four: Foreign Takeover of American Elections?)
By Tom SwansonThe final charge against Citizens United, one repeatedly leveled by President Obama in 2010, is that foreign corporations would be able to influence elections. As Peter Francia says, that while the previous three predictions “appear to be supported with at least some of the preliminary evidence coming from the 2010 election, the claim of foreign corporations taking on a sizeable role in the U.S. electoral process as a result of the Citizens United ruling appears to have little basis.”First, the Court left the legal prohibition against the use of funds from foreign individuals, organizations, or firms in federal elections completely untouched in Citizens United. Second, while “a U.S. subsidiary of a foreign corporation is entitled to form a political action committee,” according to Thomas E. Mann of the Brookings Institute, they can only do so “if the foreign parent corporation does not finance the PAC’s establishment, administration, or solicitation costs.” There is simply no viable legal avenue for foreign interests to influence American elections through contributions to candidates, parties, or PACs.
Independent Groups
Wall Street Journal: A Bombshell in the IRS Scandal No, it wasn’t confined to a few rogue workers in Cincinnati.
By Peggy NoonanThe IRS chief counsel is named William Wilkins. And again, he is one of only two Obama political appointees in the IRS.What was the chief counsel’s office looking for? The letter to Mr. Werfel says Mr. Hull’s supervisor, Ronald Shoemaker, provided insight: The counsel’s office wanted, in the words of the congressional committees, “information about the applicants’ political activities leading up to the 2010 election.” Mr. Shoemaker told investigators he didn’t find that kind of question unreasonable, but he found the counsel’s office to be “not very forthcoming”: “We discussed it to some extent and they indicated that they wanted more development of possible political activity or political intervention right before the election period.”It’s almost as if—my words—the conservative organizations in question were, during two major election cycles, deliberately held in a holding pattern.
Free Beacon: DOJ Declines to Prosecute Officials Involved in Tax Record Scandal
By CJ CiaramellaConfidential tax records of several political candidates and campaign donors were improperly accessed by government officials, but the Justice Department declined to prosecute any of the officials involved, even in one “willful” violation of the law, an IRS watchdog reported.In a July 3 letter to Sen. Chuck Grassley (R., Iowa), the Treasury inspector general for tax administration (TIGTA) J. Russell George acknowledged that government officials had illegally accessed tax records of candidates and donors in four instances since 2006.
Free Beacon: Pro-Israel Group Asks Judge to Determine Constitutionality of IRS Targeting
By Alana GoodmanZ Street filed suit against the IRS and then-commissioner Douglas Shulman in 2010 after its application for tax-exempt status was delayed and it was allegedly told by IRS officials that the agency had singled it out for special scrutiny because its pro-Israel positions conflicted with Obama administration policies.Z Street says it wants the government to publicly disclose its policy for dealing with tax-exempt applications from Israel-advocacy organizations, as well as a court decision on whether the policy violates the First Amendment.
By Jeff BurlewThe legislation (HB 569) gets rid of CCEs, or committees of continuous existence, which were allowed to take in unlimited amounts of cash and hand it out to parties and spending groups. CCEs came under fire last legislative session for their use by lawmakers for personal travel and lavish wining and dining.In place of CCEs, the law allows political committees to accept unlimited amounts of money, though they’ll be held to the new $1,000 and $3,000 contribution limits when giving to candidates. Under the old law, political committees had to adhere to the $500 limit when giving to candidates.
New York –– Newsday: Eliot Spitzer and NY’s incumbent-protection ballot rules
By JOSHUA SPIVAKFormer Gov. Eliot Spitzer’s surprise entrance into the New York City comptroller race highlights one issue that will be ignored — how New York laws continue to serve incumbents and the existing political system at the expense of the voters.Spitzer’s entry was a last-minute decision. He had four days to gather 3,750 signatures on nominating petitions.This may not seem to be a high bar, but obviously Spitzer didn’t agree — he reportedly paid signature gatherers as much as $800 a day to get their John Hancocks. He said he ended up with 27,000.
