Real Campaign Finance Reform: Legislating Through General Rules.

In a series of decisions on campaign finance legislation, the Roberts Court has made it clear that Congress cannot solve the enduring political issues of undue or unequal influence in politics by restricting speech. Now that legislatures are aware this option is no longer on the table, they are under more pressure to find other solutions.  Importantly, Congress could constrain undue influence by legislating through rules of general applicability.

Under a regime of generality,  Congress would disable itself from handing out money, lucrative projects, or regulatory relief to designated individuals or small groups. Such strictures would make corruption less likely and indeed eliminate the kind of influence which seems most undue. Decisions that that can be framed in terms of general rules are more likely to be aimed at the public good than at the provision of favors.

In fact, Congress recently moved toward legislating through general rules by eliminating earmarks. 

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Mutable ACLU v. Immovable Cato

The ACLU has modified over the last decade two important positions on civil liberties. Historically its position had been that limiting contributions to political campaigns was unconstitutional. In 2010 it shifted to support “reasonable” limits on contributions to political campaigns.  Strikingly, the ACLU in 2013 then failed to file any brief at all in McCutcheon v. FEC, which challenged aggregate limits on contributions. These limits prevented citizens from expressing support for individual candidates, even when those individual contributions were of modest size.

Second, in 1993 ACLU President  Nadine Strossen enthusiastically supported the Religious Freedom Restoration Act.  Later the ACLU, as David Bernstein reported, continued to support legal exemptions for reasons of religious conscience, but opposed subsequent bills providing for across-the-board exemptions  because of fear that they would interfere with anti-discrimination laws.  The ACLU today supports the bill to override the Hobby Lobby even though the  decision did not involve an anti-discrimination law.

In contrast, CATO, the premier libertarian think-tank, has been relentlessly consistent in its views on domestic policy, opposing infringements on both civil rights and property rights alike. The consistency has continued despite some unfortunate recent squabbles about the structure of its leadership.

The difference between the mutability of ACLU and the constancy of Cato underscores important truths about both the nature of liberty and politics.

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Here the People (are supposed to) Rule

ClintonAs she hawks her new book, Mrs. Clinton is saying provocative things. Her assertion that “American political system is probably the most difficult, even brutal, in the world” has raised eyebrows across the country.

In a world in which violent coup d-etat are still relatively common in many parts of the world, that’s a striking claim. American politicians are toppled by elections, not by violence. The parties hurl invective at each other, not ordinance. As John Adams reflected to Thomas Jefferson in 1823, “I should like to see an election for a President in the British empire or in France or in Spain or in Prussia or Russia by way of experiment. We go on pretty well—for we use no other artillery than goose quills: & our ink is not so deleterious as language & grape.”*

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A Jurisprudence to Grow the State

There are striking parallels in how the left-liberals treat constitutional liberty in political and religious expression. First, their positions in both areas are premised on a kind of faux neutrality that masks consolidation of their own power. As I have discussed, in campaign finance, left-liberals seek to eliminate the undue influence of the rich, regardless of their viewpoint. What this “neutrality” ignores is that by restricting the influence of some powerful citizens, it effectively expands the influence of other powerful groups who substantially affect the political climate and are not similarly constrained. These powerful  are most importantly, the mainstream media, academia and the entertainment industry that are predominantly—indeed in most cases—overwhelming left- liberal.

Similarly, in religious liberty, left-liberals want to restrict the capacity of religious organizations to project their views, as reflected, for instance, in their opposition to school vouchers available to religious schools. It is true that preventing religious schools from using vouchers treats all religions equally but it privileges a secular civic life. A government school can and frequently does have a secular creed that is some mixture of environmentalism and a particular take on the concept of state mandated diversity.  It is much more hospitable to reinforcing  a state-centered view of the world than a religious school.

A second point of comparison is the hostility of left-liberals to the rights of corporations.

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

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.

Originalism and McCutcheon: Part II — Possible Alternative Bases for Protecting Contributions

In my first post, I discussed how one might conclude that the meaning of “abridging the freedom of speech” could cover laws that prohibited or restricted gifts earmarked for purposes of speech. In this post, I want to discuss a couple of alternative ways that one might use to protect such campaign contributions: (1) freedom of association and (2) contributions as the speech of the contributor. While I believe the arguments in my first post provide possible ways of protecting certain campaign contributions under the original meaning of the First Amendment, I am skeptical that either of these alternatives provide strong support for such protection.

The Supreme Court has for at least the last half century recognized a doctrine of freedom of association. People often speak about this doctrine as if it were a distinct right. But an examination of the First Amendment reveals no express right to “freedom of association.” Thus, it is not clear how the First Amendment protects freedom of association.

It is possible that one might be able to derive some kind of freedom of association right from the original meaning of the First Amendment. Some people argue that freedom of association derives from freedom of speech whereas others claim it comes from freedom to petition and assemble. I could imagine an argument for freedom of association that is similar to the argument I made in my first post (for how one might derive protection for contributions for speech purposes). But the point is that deriving this protection would itself require a good deal of work and is therefore unlikely at this point to provide the needed originalist support for constitutionally protecting contributions.

Another possible basis for protecting campaign contributions is to view them as the speech of the contributor. That is, the contribution expresses the contributor’s support for the candidate. I am skeptical of this argument. I used to question whether symbolic conduct was speech, but Eugene Volokh has provided evidence that certain types of symbolic conduct, such as burning people in effigy, constituted speech for purposes of the First Amendment. But that does not mean all conduct did and I doubt that giving money is properly viewed as symbolic.

Supply-Side Campaign Reform

Just once, it would make some professor’s constitutional day to read the lead paragraph of a news report on a Supreme Court decision and see high-level judicial reasoning (who thought what) rather than bottom-line ox-goring (who lost what) taken seriously. Wednesday, when the Court’s decision in McCutcheon v. FEC was announced, was not that day.

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Taking Down D’Souza and Other Abuses of Power

In 2004 leftwing filmmaker Michael Moore released his film Fahrenheit 9/11, a searing attack on the legitimacy of George Bush’s election to the presidency in 2000, and his handling of events before, during, and after the terrorist attack of September 11, 2011 on the World Trade Center. Moore was unequivocal in his stated hope that the movie would “help unseat a president.”

Fahrenheit 9/11 was produced by Moore’s production company Dog Eat Dog Films, a corporation. At the time – before the Supreme Court decision in Citizens United v. Federal Election Commission—it was illegal for corporations to spend money “in connection with any election to any political office,” and illegal for an officer of a corporation to consent to such an expenditure.

Imagine if fourteen months after the election, Moore had been indicted by a Bush-appointed federal prosecutor for violating the prohibition on corporate spending. Imagine if Moore was arrested, cuffed, criminally charged for his activities, had his passport confiscated, and bail set at $500,000–what would have been the reaction from the America’s liberals? Of the press? Of Senator Barack Obama?

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Curbing Campaign Cash

Curbing Campaign Cash
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The next Liberty Law Talk is a conversation with Paula Baker about her new book, Curbing Campaign Cash. You might recall former FEC Commissioner Brad Smith’s review of the book in this space. Smith observed that Baker’s book uncovers for the reader the perennial tale of campaign finance legislation and its many untoward consequences that distort a system of fully competitive elections. “Before Super PACs, McCain-Feingold, “soft money,” and the Keating 5; before Watergate, and even before Teapot Dome, there was the Michigan Senate race of 1918. . . . one of the nation’s most contested elections and earliest campaign finance “scandals.””  As Smith also notes, “Unlike the typical political saga, however, Baker presents the story not as a morality tale of honest government corrupted by big money, but rather as a cautionary story about big government regulation of honest money and the political choices of the electorate.” I hope you enjoy this conversation about one of the first attempts by campaign finance rules and the self-interested incumbents who enforce them to restrict basic constitutional freedoms in the name of equalizing politics.