Liberty Law Blog

Protecting Political Expression in Campaigns as much as Political Dissidence

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The Supreme Court’s analysis in McCutcheon v. FEC, its recent campaign finance decision, is even more important than its result. The holding of the case was to strike down so-called aggregate limits on donations to federal candidates. Under the invalidated law there was a ceiling on total contributions of $48, 600 for candidates running for federal office and $74,000 for other political committees. After McCutcheon, candidates are still limited to donating $2, 600 to a candidate but can give to as many candidates as they choose.

But it is the reasoning, not only the result, that is crucial to protecting our liberty, because it portends further deregulation of p0litical expression in elections. From the very first sentence, Chief Justice Roberts makes clear that general First Amendment principles are at stake in the case. Throughout the opinion he refers to cases that have nothing to do with campaign finance regulation but famously protect individual expression against the majority will, like Cohen v. Virginia, the case that protected the ability of a protestor calling for an anatomical impossibility to be performed on the nation’s selective service system. For the Chief Justice, those who want to express themselves are the new dissidents who must be protected from the wrath of legislators egged on by majority passion (and their own interest in protecting their incumbency). People who want to participate in campaigns to support a message or a candidate are not different in kind from those who speak in a vulgar manner or a burn a flag. His is a frontal challenge left-liberals’ support for the regulation of political campaigns, showing that they exercise only high double standards in standing up for free speech rights only when it suits their long-term objectives.

Appealing to ordinary First Amendment principles is essential to winning the debate over campaign finance, because advocates  of regulation cannot succeed unless they forsake the neutral principles that are free expression’s best guarantees. Continue Reading →

Is the Federal Reserve a Philosopher King?

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FedA lively and informed discussion was held at the American Enterprise Institute on March 20, 2014 on the question: Is the Federal Reserve a philosopher king or servant of the treasury? Alex Pollock, a frequent contributor to Law and Liberty and participant in the AEI discussion, offers here in condensed form the arguments and the instructive history presented. Continue Reading →

“The god of this lower world”

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NPG 655; Edmund Burke studio of Sir Joshua ReynoldsEdmund Burke, mobilizer of theoretical resistance to the French Revolution in the face of all odds, pursuer of Warren Hastings in the face of certain defeat, lived a political life so seemingly incautious that by its end he had to ask to be buried in an anonymous grave lest the Jacobins, on their inevitable march across his beloved island, exhume and violate his bones. Yet he described prudence as “the first of all virtues.” Continue Reading →

Originalism and McCutcheon Part III: Does Congress Have Power to Regulate Campaign Contributions?

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For the first two posts in this series, see here and here.

My last post on originalism and McCutcheon will address whether Congress has the power to pass laws that restrict campaign contributions. This is a complicated area and one that I have not studied. So take what I say with some caution.

There are at least two issues: regulations of campaign contributions as to congressional elections and as to presidential elections. (One might, of course, draw further distinctions, such as those relating to contributions to political parties or for primaries.)

As to congressional elections, the Constitution allows Congress to regulate “the Times, Places and Manner of holding Elections for Senators and Representatives.” This might allow regulations of campaign contributions, but it has also been argued that this only covers elections, not campaigns. Bradley Smith writes:

Legal statutes and texts in the 18th century frequently discussed the “time, place and manner of election.” Rob Natelson’s extensive historical research finds that these statutes encompassed the times, places and mechanics of voting, registration lists, districting, qualifications of electors and candidates, prohibitions on misconduct at the polls, and the rules of decision (i.e. plurality or majority vote). They did not encompass the conduct of the campaign preceding the election.

Smith derives further support for this conclusion from a comparison of the time, place and manner language with the more limited language allowing Congress to determine the “Time of chusing” the electoral college.”

Why [does this provision] not [include] “place” and “manner”? Because these are specifically provided for in detailed instructions on the electoral college. If, however, “manner” was intended to include events leading up to the election–that is to say, the campaign and other events not included in the detailed instructions on operation of the Electoral College-then we would have expected the “Manner” clause to appear in Article II as well as Article I.

Congress’s power to regulate campaign contributions as to presidential elections is considerably weaker. The Constitution provides that “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.” This suggests that the power lies with the states, not Congress. Congress is given power, but only limited authority as to the Time of chusing the Electors, and the Day on which they shall give their Votes.

It is not clear how Congress can regulate campaign contributions as to presidential elections. Various judges have simply asserted that they can do so, such as Justice Black who wrote in Oregon v. Mitchell “it is the prerogative of Congress to oversee the conduct of presidential and vice-presidential elections and to set the qualifications for voters for electors for those offices. It cannot be seriously contended that Congress has less power over the conduct of presidential elections than it has over congressional elections.” 400 U.S. 112, 124 (1970). Similarly, Judge Posner wrote that “Article II, §1 . . . has been interpreted to grant Congress power over Presidential elections coextensive with that which Article I ,§4 grants it over congressional elections,” citing to Justice Sutherland’s opinion in Burroughs v. United States.

Of course, one might attempt to justify congressional authority under the Necessary and Proper Clause or the regulation of commerce, but these bases seem quite weak.

In the end, I don’t have a firm position on these matters, not having studied them. But it does seem clear that there is at least a plausible basis that Congress lacks authority to regulate campaign contributions as to congressional elections and an even stronger one as to presidential elections.

Campaign Finance Regulation: Freedom for Me and Not for Thee

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In a recent column Dahlia Lithwick first mourns the likelihood that Steve Colbert’s new gig on the Late Show will lead him to give up his crusade for campaign finance reform.  She then bemoans the Supreme Court decisions that permit people to spend money to elect candidates of their choice and to donate to all the candidates that reflect their views.

But she never pauses to consider why Stephen Colbert should be privileged to use the influence that comes to him from his position as a televised satirist, while people who work for living cannot use some of their hard-earned cash to proselytize for their views or support their own political champions. Her blindness stems from two facts. First, she herself is part of the media class. Second, that class is largely of one political persuasion —her own left-liberal one. Indeed, when Colbert is not pressing for campaign finance reform he is relentlessly attempting to make those on right look like idiots by playing a buffoonish conservative talk show host.

Restricting independent campaign expenditures and donations increases the power of other forms of political influence. Campaign finance “reform” can thus be understood not as a struggle to protect the democratic interests of the 99 percent, but as an effort to entrench the oligarchy of the information class. Continue Reading →

ARTs and the Reconceived Family

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For some time now, three of the most powerful forces in society—technological science and the moral values of equality and freedom—have been applied to the redefinition and reworking of a fundamental human and social institution: marriage and the family. Same-sex marriage is the most recent wave in this transformative endeavor. Continue Reading →

Minding America’s Business

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We read in the Wall Street Journal (April 8, 2014) that the nation’s debate on how we Americans ought to deal with problems arising from China, Russia, and the Muslim world will be set by the contrast between such as Senator Rand Paul, who “is struggling to reconcile a libertarian’s skepticism of foreign entanglements with a party that still holds a good chunk of interventionist sentiment – and Texas Sen. Ted Cruz, aligning himself more with the party’s hawks, has called him out on the gap.”

We do not know whether this language, defining as it does international affairs as a choice between “interventionism” and “isolationism,” between “leading the world” and “leading from behind,” between military power and diplomacy, reflects what is in the mind of Rand Paul or Ted Cruz. Whether either of these contenders for the presidency have read or thought outside the framework set by this language, which reflects the mentality of our ruling class, is less important than it is for us to realize that this intellectual framework is false to reality and warps our capacity to understand the choices that face us in foreign affairs. Continue Reading →

Charles Koch’s Jefferson

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JeffersonTo whom does Jefferson belong in today’s political debates? The reality, it seems, is everyone. Quotes can be found on almost any topic expressing virtually any sentiment, in large measure because unlike so many others of his day, Jefferson saved everything.

That’s why I am rarely bothered by either side of the political spectrum quoting him. What does bother me, though, is when people who ought to know better think they can claim Jefferson, exclusively, enlisting his pen in their ideological causes.

Richard Eskrow ought to know better. Continue Reading →

David McCulloch’s 1776

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Recently, I read McCulloch’s book on the first year of the Revolutionary War and I wanted to recommend it to readers.

The book is interesting throughout, with some unexpected discussions such as that of the debate in Parliament about whether to engage in war with the colonials. The book focuses on three principal events – the siege of Boston, the New York City conflict, and the New Jersey campaign.

While the book is called 1776, it is really focused on George Washington’s 1776. It describes how Washington’s army secured a limited victory in Boston (despite Washington’s desire to pursue a different strategy that probably would have been a disaster). It shows how Washington blundered in New York – both at Brooklyn Heights and Washington Heights – and nearly lost not only his army but the support of some of his principal officers. And then it concludes with Washington’s victories at Trenton and Princeton. Continue Reading →

Money Talks

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TEDtalksAmericans have always been strivers. Since at least the 19th century we have been eager to file into lecture halls to be talked at by experts. Those obnoxious-seeming TED talks that I’ve tried to avoid are not a new feature of our national life. As others have pointed out, TED’s great-granddaddy is the Chautauqua, named for the rural meetings at Lake Chautauqua in New York state, which began in the 1870s and became a nationwide circuit of lectures and instructional assemblies. Continue Reading →

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