February 07, 2012
Citizens United != Super PACs

It's bizarre to me that so many people link Citizens United with the rise of "Super PACs." In fact, what makes a "Super PAC" legally possible is almost completely unrelated to Citizens United.

It's actually legal through a case called Speechnow v. FEC, which says quite simply that an independent group making independent expenditures for political speech cannot be limited in contributions to, or expenditures from, that group. This is obviously protected Free Speech: government cannot, for the purposes of limiting your speech, limit your money, because that is a de facto restriction on speech itself. Citizens United was cited in the case, but the case would've stood without it.

It's bizarre to me that anyone would have a problem with this. Ross Perot and George Soros can spend millions, even billions, of their own money to influence elections, but less-affluent citizens can't pool their resources to do the same thing? That's just nuts. So Speechnow was essentially inevitable.

What Citizens United did is say that a corporation -- not a PAC -- can spend unlimited dollars on a campaign. This includes contributing to a "Super PAC": that is where the two cases overlap, but the decisions are independent.

The one criticism I have sympathy for, regarding these rulings -- Speechnow in particular -- is that Super PACs are not subject to the same strict reporting requirements, such that we don't really know where all of the money is coming from. I think this is a good and necessary thing: anonymous political speech, including anonymous publishing of the speech in question (which is essentially what the anonymous contributions facilitate) is a hallmark of our republic. But I also understand that because of the problems of money in politics, disclosure can be an important tool for the electorate.

Frankly, I've been thinking lately we should work to encourage disclosure, rather than mandating it. We could even have laws about how disclosure is done, if it is done, to discourage dishonest disclosures. But if a committee wants to remain anonymous, so be it. Regarding such committees that don't do disclosure, TV stations could choose to not broadcast ads from them; news outlets could choose to refuse to reference their ads; donors could take a pledge to not contribute to them; and so on. We can solve this without laws, and thereby protect our right to anonymity while greatly discouraging it.

Disclosure issues aside, however, it still seems obvious to me that you cannot, while respecting the First Amendment, limit someone's expenditures for the purpose of limiting their speech. The First Amendment says No, and it also says that -- given that we have rights to assembly and petition -- that when we come together in groups, we still have our right to speech as a group.

Cross-posted on <pudge/*>.

Posted by pudge at February 07, 2012 08:09 AM | Email This
Comments
1. I'm not sure how we could go about encouraging disclosure without mandating it on some level or degree.

While TV stations could choose to not air certain ads, there will always be some vocal crowd making noise about fairness if they don't, and it would come from either side depending on which ads were rejected. While news outlets could choose to not reference certain ads, if an ad is making a noticeable influence (or outright lying), it would be remiss of certain programs to NOT discuss it.

I was thinking maybe a certain dollar amount per person/donor over a specified period could be a break point for what is anonymous and what isn't, but even that has some sticky implications as well. First example off the top of my head being, what if the anonymity limit is $5000, and a person gives what amounts to greater than that amount to several organizations that mostly (or even partially) contribute to the same PAC?

I don't have an answer for this. I'm not even certain a solution is needed, because I'm not sure there is a problem with this in particular when I think it through...

Glad for a sounding board to bounce ideas around though.

Posted by: Brian on February 7, 2012 10:29 AM
2. http://realcampaignreform.org/babka/liberty_for.htm

Why is compulsory disclosure considered a good thing?
Nowadays, few people question the propriety of disclosure of campaign contributions. Even conservatives and some libertarians have come to the conclusion that we must know who is behind the Congressman, or who is funding a particular commercial. Some Americans believe that disclosure is essential to the proper operation of democracy.

Let's carry this premise to its logical conclusion.

How many Americans insist their "oughta be a law" requiring the media to divulge their "governmental sources?" Imagine the trouble Woodward and Bernstein would've had if they'd had to disclose who "Deep Throat" was.

How many people want government compelled disclosure of the names, addresses, vocations and employers of persons who "volunteer" for campaigns? After all, some people's time is quite valuable.

Or how many people believe we need to end the secret ballot? Is it possible that some people voting for particular candidates because they expect to receive special favors from the government if the candidate wins?

This could be done. After all, the secret ballot isn't required by the Constitution. During the colonial period many government officials were elected by voice or a show of hands. This practice didn't die out entirely until the 1860s. And paper ballots didn't become popular until early in the 19th century. At first, voters made their own ballots and brought them to the polls. Then political parties started printing ballots and the polling places became akin to an open auction. Ticket distributors would fight with each other and the elderly were scared away. And that's why we have secret ballots today -- to protect the voters from reprisals and threats of violence.

But shouldn't we also want to protect political donors from potential reprisals from candidates they didn't support, especially if the candidates the donors opposed are elected to office and have the power of government behind them?

This seems obvious, but for some reason we've gone the opposite way on financial disclosure. Why? Anonymous political documents predate the settling of our country. The first was a document written in the 1570s under the fictitious name Junius Brutus. In English it's titled A Defense of Liberty Against Tyrants. According to historians, this document played a role in the destruction of the Stuarts, then the royal family of Great Britain. And this document also influenced America's patriots.

There are other pre-revolutionary examples, including the story of John Peter Zenger, whose case was a precedent for the 1st Amendment freedom of the press and the concept of fully informed juries.

Another example was John Dickson, a colonial patriot who anonymously protested the preponderance of taxes by Parliament in his Letters from a Farmer in Pennsylvania. Add to this list, Thomas Paine's Common Sense, which was published with the byline "An Englishman."

But the best examples occurred during the debate over the Constitution itself. Publius, the pseudonym of James Madison, Alexander Hamilton, and John Jay, wrote the Federalist Papers. And let's give equal time to "Brutus," "Federal Farmer," "Centinel," and "Cato" -- all of them took the anti-federalist position. #Too bad they lost.#

The list goes on, but the point is this: Government-compelled disclosure is unconstitutional and un-American.

Does disclosure have its place? Sure it does. Any campaign can choose to report its donors to the public and most probably would because the voters might want it #although there was no disclosure at all before the 1970s#; and politicians tend to give voters what they want, whenever they can. Voluntary disclosure might even be more reliable because campaigns could hire companies like Price Waterhouse to provide validity to their disclosures. In a regulation-free atmosphere, campaigns most likely would compete with their opponents to provide the clearest disclosure. They might even subject their reports to independent audits. This would be in marked contrast to the obscure forms that are now filed with the Federal Election Commission.

Posted by: BenDoubleCrossed on February 7, 2012 11:51 AM
3. Employees of media corporations are exempt from campaign laws. I would appreciate if broadcast talking heads and print journalists would explain why their audiences should not enjoy the same exemption?

From 1791 to 1886 1st Amendment freedoms of speech, press and assembly were the sole rights of flesh and blood citizens.

From 1886 to 1973 flesh and blood citizens and media corporations enjoyed equal freedoms of speech and the press.

When I was young you did not have to ask anyone permission to participate in politics. You could pool your money with others who shared your views without donation limits or reporting requirements. It was understood that freedom of speech, press and assembly were the rights of flesh and blood citizens. Newspapers enjoyed the right to print and broadcasters the right to speak because they employed people. But people did not have to own newspapers, TV Stations or radio stations to print or speak.

Then, prior to President Nixon's second term, some of our nation's largest newspapers found themselves in federal court loosing antitrust suits which accused them of purchasing financially troubled regional newspapers and then pretending to compete with them while rigging prices.

The Newspaper Preservation Act was working its way through congress and was designed to grant antitrust relief to the affected newspapers. Richard Nixon and his, Attorney General, were on record as strongly opposed to the passage of the Newspaper Preservation Act.

A newspaper executive wrote a letter to President Nixon as his re-election approached. The letter reminded President Nixon that the nation's largest Newspaper chains published in those states that had the largest number of electoral votes. The carefully worded letter reminded President Nixon that it could be difficult to be re-elected without their editorial support.

President Nixon reversed his position and used his political skills to convince Congress to pass the Newspaper Preservation Act.

Following Watergate and reports of serious financial abuses in the 1972 Presidential campaign, Congress amended the FECA in 1974 to set limits on contributions by individuals, political parties and PACs. The purpose of the new campaign laws was to protect the public from the appearance of corruption.

The newly minted campaign laws should have reprimanded the 4th estate as well as Nixon. Instead the Federal Election Campaign Reform Act exempted corporate media from campaign laws and created the "State Approved Press". -
See: http://en.wikipedia.org/wiki/Newspaper_Preservation_Act_of_1970

From 1974 to present only the commercial media enjoy unrestricted freedom of speech and the press.

2 USC 431 (9) (B) (i) The term "expenditure" does not include any news story, commentary, or editorial distributed through the facilities of any broadcasting station, newspaper, magazine, or other periodical publication, unless such facilities are owned or controlled by any political party, political committee, or candidate;

But what is the difference between slanted news stories or editorial opinions and political ads? "Section 431(9)(B)(i) makes a distinction where there is no real difference: the media is extremely powerful by any measure, a "special interest" by any definition, and heavily engaged in the "issue advocacy" and "independent expenditure" realms of political persuasion that most editorial boards find so objectionable when anyone other than a media outlet engages in it.

Media corporations have denied Buddy Roemer a podium at the GOP Presidential debates despite the fact he is for campaign reforms. The media hypocritically judge the viability of a candidate by how much money he is able to raise while decrying the evil of money in politics, most of which flows to them to purchase campaign ads!

Distributing political ads to the masses is the biggest expense of political campaigns. If the media were to carry political ads, as a public service, it would greatly reduce the need for money in politics.

There are multiple proposed Amendments to the constitution to end corporate personhood and keep money out of politics. But that is only necessary because the 1st Amendment is not a loophole in campaign laws. Campaign laws are corruption of the 1st Amendment.

Amendment 1
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people to peaceably assemble, and to petition the Government for a redress of grievances.

The National Rifle Association purchased a radio station to get around existing campaign laws. Should citizens and citizens groups have to buy a radio station to enjoy freedom of speech or a newspaper to enjoy freedom of the press?

To restore equal protection under law the press exemption must be extended to citizens and citizens groups! People don't lose their rights when they associate in groups, whether it's a corporation, a labor union, a nonprofit organization or even a newspaper. Until campaign laws apply equally to all, we the people are the 99% and media princes, like Colbert, are the 1%.

And if the media won't defend people's 1st Amendment rights they may lose their own:

Newspapers Have No First Amendment Exemption from Political Spending Reporting Requirements

Eugene Volokh • September 8, 2011 5:46 pm

Because of this, it generally hasn't been clear whether the media exemption was constitutionally mandated -- whether a legislature could, if it wanted to, regulate newspapers' expenditures related to political campaigns the same way it regulated other expenditures. But Olson v. City of Golden (D. Colo. Sept. 1, 2011) held that such an exemption is not constitutionally mandated.
http://volokh.com/2011/09/08/newspapers-have-no-first-amendment-exemption-from-political-spending-reporting-requirements/

Before you insist on more people muzzling campaign laws watch these videos
http://www.ij.org/freedomflix/33-sampson
,http://www.ij.org/freedomflix/15-camppolitics
http://www.ij.org/freedomflix/39-azcleanelectionsvideo
and read the Citizens Guide to participating in Federal elections. http://www.fec.gov/pages/brochures/citizens.shtml.

Posted by: BenDoubleCrossed on February 7, 2012 11:55 AM
4. After Obama called out the Supreme Court in the 2011 SOTU for their ruling on Citizens United that gave way to Super PACs, he has decided to embrace the Super-PACs. Once again he caved on his principles. He is the poster man-child for "Don't do as I do, do as I say". Is anyone surprised ?

http://www.newsmax.com/Newsfront/Obama-Fundraising-super-pac/2012/02/07/id/428635

Posted by: KDS on February 7, 2012 12:53 PM
5. "anonymous" political speech currently isn't as protected as you think it is. We've seen it through our own court decisions in initiative lawsuits, we've seen it through PDC disclosure and FEC disclosure rulings. The constitution doesn't prohibit laws to require disclosure.

If they wanted to make a law requiring all donations to super-Pac's be disclosed on-line within a few day time period they could....just as long as they don't require it to be disclosed immediately and have a mechanism in there for a donor to seek court relief to keep their name from being disclosed.

I think the operational would be that donationations to Super Pacs would be disclosed unless a court finds that the disclosure would cause sufficient harm on the donors.

Posted by: doug on February 7, 2012 01:28 PM
6. Mr. Pudge:

OT, will you be attending the caucus on March 3rd??

Posted by: Loren U on February 7, 2012 01:33 PM
7. Free Speech, even free political speech, is NOT a paramount right under the constitution. What I mean by that, is that others also have rights and the collective right may over ride free speech of an individual. Hence, no wardrobe malfunctions at the Super Bowl, no political commercials digitally altered to show Obama laughing and cussing up a swarm while machine gunning down little children.

disclosure to super-pacs would be the same thing, it could be mandated, as long as there isn't sufficient harm expected to come of the donors. Heck, I can send $250 to Ron Paul's presidential campaign and my name would have to be disclosed, send $5 Billion to a super pac supporting him, and it's anonymous? One of those laws need changed.

Posted by: doug on February 7, 2012 01:34 PM
8. In a better world, the Citizens United ruling and McCain-Feingold would both be overturned/repealed and we would return to political campaigns before 2000. IMO, that would be an improvement over what there is now and certainly less costly.

Posted by: KDS on February 7, 2012 01:49 PM
9. doug: "anonymous" political speech currently isn't as protected as you think it is.

Yes, it is. More accurately: I don't think "anonymous" political speech is currently protected as much as you think I do.


Free Speech, even free political speech, is NOT a paramount right under the constitution. What I mean by that, is that others also have rights and the collective right may over ride free speech of an individual.

Only if that speech causes direct harm.


Hence, no wardrobe malfunctions at the Super Bowl, no political commercials digitally altered to show Obama laughing and cussing up a swarm while machine gunning down little children.

Actually, no, the "wardrobe malfunction" has nothing to do with the First Amendment. This was purely an administrative issue, about what a network agrees to in exchange for a broadcast license, and what penalties may be administratively inflicted if they violate the agreement. No law was broken in the incident.

As to the latter, actually, that probably would be protected speech, as long as it wasn't passed off in a way that people would believe it. And even then, maybe. Even defamation laws (such as would apply here) are tempered with the notion that the speech in question has to have caused harm by making people think that the deception was true.

You have to actually cause direct harm in order for the speech to be unprotected by the First Amendment, in almost all cases.


disclosure to super-pacs would be the same thing

That's the theory, and many people hold to it, but it has little rational basis. If Congress SHALL MAKE NO LAW abridging freedom of speech, then logically, it can only do so when it comes into conflict with another greater right. And there is no right to know who someone is when they are engaging in speech, or spending money. You can argue that something is in the "public interest" until you are blue in the face, but I can say it's in the "public interest" that women don't have the right to vote. That's an irrational way to deprive someone of a right.

it could be mandated, as long as there isn't sufficient harm expected to come of the donors

That's backward. You CANNOT mandate it, unless there IS sufficient harm caused to someone else by not disclosing.

Heck, I can send $250 to Ron Paul's presidential campaign and my name would have to be disclosed, send $5 Billion to a super pac supporting him, and it's anonymous? One of those laws need changed.

Well, no, because right now we treat campaigns and independent expenditures differently. That's not rational, perhaps, but THAT needs to change before we "need" to change the disclosure differences.

Posted by: pudge on February 7, 2012 02:17 PM
10. KDS: but if we did that, we would still have Super PACs, because they are not dependent on McCain-Feingold or Citizens United. Which is fine by me, because I see no problem with Super PACs.

Posted by: pudge on February 7, 2012 02:18 PM
11. Loren U: I plan to be at the caucuses up here in North Snohomish County.

Posted by: pudge on February 7, 2012 02:21 PM
12. @10 - OK, if McCain-Feingold and the Citizens United ruling were overturned, it would be a better America for elections, waiting for photo ID required for all voters to make it clearly a better America.
Both actions (esp. the last one) would require a significantly different makeup of the Executive and Congressional branches.

Posted by: KDS on February 7, 2012 02:30 PM
13. Pudge: "Well, no, because right now we treat campaigns and independent expenditures differently. That's not rational, perhaps, but THAT needs to change before we "need" to change the disclosure differences."

And there in lies the solution. Get rid of individual donation limits to campaigns, treat all political speech the same, including the same disclosure rules.

However, disclosure rules, I would argue are necessary to protect citizens from quid-pro-quo offenses by the government entities and individuals. The harm done to the public from quid-pro-quo actions is immeasurably great, so much so that just the possibility of it is so harmful that it over rides the 'anonymous' portion of your free speech argument. That is likely why there is a donation limit at which disclosure is necessary, currently.

Posted by: doug on February 7, 2012 11:04 PM
14. Only U.S. citizens should be allowed to participate in U.S. elections. Disclosure is the only way to ensure that the George Soros's can't play. How much a U.S. citizen contributes is his/her business. Sadly, it would be nearly impossible to prove that John Q. Citizen actually got his money from George Soros. Ideas anyone?

Posted by: Arthur on February 8, 2012 06:06 AM
15. doug: disclosure rules, I would argue are necessary to protect citizens from quid-pro-quo offenses by the government entities and individuals

I could not disagree more.


The harm done to the public from quid-pro-quo actions is immeasurably great

It is significantly large, yes.


so much so that just the possibility of it is so harmful that it over rides the 'anonymous' portion of your free speech argument

That is your assertion, yes. I don't see a significant basis for it, though. That sort of reasoning can evaporate all our rights, in short order. Our right to speak freely about politics online is overridden by the right of the people to get well-vetted facts about politics from trusted news sources. Our right to keep and bear arms is overridden by deaths by gun. Our right against unreasonable search and seizure is overridden by terrorist threats. And so on. I don't buy it.


That is likely why there is a donation limit at which disclosure is necessary, currently.

Again, no it's not. Even if you could make the case that this is a valid government act, you're not making the case that it's the only or best way to solve the problem.

The basic problem is that the overwhelming majority of quid pro quos are unconstitutional acts in and of themselves; i.e., most quid pro quos violate the Tenth Amendment's restrictions on federal government authority. Solyndra is an easy example: the federal government has no constitutional authority to give such "loans" in the first place, regardless of whether it's a quid pro quo.

So when you tell me that my rights should be restricted so that when government commits an unconstitutional act, we can know whether or not that did it for insidious reasons ... that's just wholly unconvincing.

I don't think disclosure is necessary to protect citizens from such "quid-pro-quo" offenses. I think following the Constitution will serve that end sufficiently.

Posted by: pudge on February 8, 2012 06:54 AM
16. Arthur: George Soros is a U.S. citizen.

Posted by: pudge on February 8, 2012 07:53 AM
17. "Solyndra is an easy example: the federal government has no constitutional authority to give such 'loans' in the first place, regardless of whether it's a quid pro quo."

Just a small correction. The loan program comes under the congress's authority to regulate commerce amongst the several states because the courts have typically said since at least the 1930s, "How the congress chooses to regulate commerce amongst the several states is at its discretion." Some limitations do exist, of course, such as the federal ban on guns within a certain distance of a school. The court found no way such actions noticeably effect interstate commerce. However, as a general rule, I see and greatly agree with Your points made.

Posted by: Brian P. Rabbit on February 8, 2012 09:23 AM
18. Brian P. Rabbit: no, loaning money to push certain businesses is not regulating commerce, it's engaging in commerce. You're not correcting me; rather, you're offering a defense that I reject.

Posted by: pudge on February 8, 2012 09:30 AM
19. Radical environmentalism needs to have the same protections as other religions. Then the Feds would have to keep their 'separation of church and state' aspect and not give our money to the religion of global warmning advocacy.

Posted by: doug on February 8, 2012 02:18 PM
20. Oprah Winfrey: "You can have it all. You just can't have it all at once."

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