A Stitch in Haste

Or should that be: "Regulation of Political News Back in the Blogs"?

Political bloggers who offer diverse views on Republicans and Democrats, war and peace argued on Thursday that they should be free of government regulation.

The notion was echoed by some members of the government agency trying to write rules covering the Internet's reach in political campaigns.

Amid the explosion of political activity on the Internet, a federal court has instructed the six-member Federal Election Commission to draw up regulations that would extend the nation's campaign finance and spending limits to the Web.

The FEC, in its initial rules, had exempted the Internet.

This is very easy:

--McCain-Feingold is unconstitutional, the Supreme Court be damned. Likewise, Buckley v. Valeo, 424 U.S. 1 (1976), which upheld limits on campaign contributions, was wrongly decided.

--Putting that aside, even under McCain-Feingold, that which is free of money should be free of regulation. A blogger who pays no money to a campaign should be free to blog without any governmental interference whatsoever.

--Likewise, a blogger who receives no money from a campaign should be similarly free of all regulatory scrutiny.

--As for bloggers who give money or money's worth (note: a favorable blogpost is not "money's worth"), they should simply be subject to the same disclosure rules as any other campaign contributor; the fact that a contributor is also a blogger should mean absolutely nothing.

--Meanwhile, bloggers who receive money from candidates (e.g., through blogads, PayPal donations and the like) should still be exempt from any disclosure requirements -- those should apply to the campaign, not the blogger.

There are already enough "follow the money" regulations, registration requirements and limits, both on contributers and campaigns, to make the incremental fact that a blog may be involved utterly irrelevant. The FEC, not to mention Congress, should just acknowledge that once and for all and move on.

Did I mention that McCain-Feingold is unconstitutional, the Supreme Court be damned?

The Supreme Court has agreed to hear three cases challenging the constitutionality of a Vermont law capping campaign expenditures by candidates, a law expressly contrary to the Court's ruling in Buckley v. Valeo, 424 U.S. 1 (1976). Buckley held that, at least for federal elections, limits on campaign contributions to candidates were constitutional, but limits on campaign expenditures by candidates are a violation of the First Amendment. One would think, since the First Amendment has been been fully incorporated to apply to the states via the Fourteenth Amendment, that a state limit on a candidate's expenditures must also be a First Amendment violation.

In any event, wouldn't it be grand if the Court used this opportunity to revisit and reverse the schizophrenic holding of Buckley and rule that people have a unlimited First Amendment right to spend their money as they see fit?

Buckley may be the most bizarre Supreme Court case I've ever read. Why exactly does it make sense to say that Mike Bloomberg can spend $70 million to get re-elected mayor of New York, but I can't spend $70,000 to oppose him (unless I run for mayor myself)? Money used to buy a campaign ad is either speech or it isn't — who's spending the money is utterly irrelevant. A campaign ad is a campaign ad — how can it matter who paid for it?

To the extent "who paid for it" does matter, that can be addressed by disclosure rules. They might not be as "free society" as libertarians might like, but they're certainly better than outright limits.

Furthermore, how can a limit on campaign contributions make sense within the context of the First Amendment? Money is homogeneous — how can some of it be permissible and some of it not? In other words, how can the one thousandth dollar I spend be a valid exercise of my First Amendment rights, but the one thousand first dollar not be? Such a doctrine is unforgivably nonsensical.

That part of Buckley v. Valeo that upheld limits on campaign contributions was wrongly decided and should be overturned.

---

One of the reasons Buckley v. Valeo is such a bizarre and self-contradictory opinion is because it apparently was a "split the baby" decision. The ruling was per curiam, but five different justices wrote separate decisions "concurring in part and dissenting in part." Rather than debate endlessly about whether "money is speech" either always or never, they opted instead for a nonsensical "sometimes." That is not the kind of legal reasoning that is entitled to stare decisis.

---

The lead case is Vermont Republican State Committee v. Sorrell, No. 04-1530. Links and a good background discussion are available from Election Law Blog. More thoughts at Rossputin.

Philadelphia voters are deciding today whether to impose campaign finance limits (i.e., restrictions on freedom of speech) in order to prevent corruption and influence peddling in the awarding of municipal contracts:

An individual would be barred from getting a no-bid contract worth more than $10,000 if the person had given more than $2,500 per year to the campaign of a city official. Companies seeking city contracts would be barred from giving more than $5,000 per year.

Of course, an alternative might have been simply to abolish no-bid contracts worth more than $10,000. That way the city would not only curb corruption but might also actually save money through competition.

But I guess that would have been too easy.

Here's what I wrote back in September 2005 about the Supreme Court's review of Vermont's draconian campaign finance limits:

In any event, wouldn't it be grand if the Court used this opportunity to revisit and reverse the schizophrenic holding of Buckley and rule that people have a unlimited First Amendment right to spend their money as they see fit?

Here's what actually happened:

In a fractured set of opinions, justices said they were not sweeping aside 30 years of election finance precedent but rather finding only that Vermont's law -- the strictest in the nation -- sets limits that unconstitutionally hamstring candidates.

Oh well.

I have little to say that I didn't say back in September, and Buckley v. Valeo, 424 U.S. 1 (1976), and its progeny -- including this case -- remain on my list of the ten worst Supreme Court cases. Money is money, and money is speech, and people have a First Amendment right, whether or not politicians and judges acknowledge it, to contribute their money to candidates, campaigns and parties as they see fit. The idea that Michael Bloomberg can spend $70 million to get elected but I can't spend even one percent of that to oppose him demonstrates just how pathetic and moronic this whole tangle of statutes and cases is.

There were six different opinions in today's case. Like I said in September: schizophrenic.

The case is Randall v. Sorrell, 04-1528, 04-1530 and 04-1697 (PDF - 70 pages)

Few if any of the "Netroots," but more than one libertarian, have noted that the besting of Senator Joe Lieberman by Ned Lamont would not have been conceivable, let alone possible, without the latter's vast wealth: Lamont gave at least $4 million to his own campaign, as is his First Amendment right according to (the good half of) Buckley v. Valeo, 424 U.S. 1 (1976).

But under the Bipartisan Campaign Reform Act of 2002 (a/k/a McCain-Feingold), which is propped up by (the bad half of) Buckely via McConnell v. FEC, 540 U.S. 93 (2003), and now Randall v. Sorrell, No. 04-1528 (2006), private citizens could only contribute $2,000 to oppose Lamont. And Connecticut's own campaign finance law for state and local office is even more draconian, banning any contributions at all for a large segment of the electorate (the new law does not commence until the 2008 voting cycle, and is already being challenged).

So, to review: Ned Lamont can spent $4 million, or more, to win a primary, plus however much he will spend in the general election. But an ordinary Connecticut citizen cannot spend one-half of one percent of that to oppose him. Just as Michael Bloomberg can spend $70 million to be re-elected Mayor of New York, but I cannot spend one-tenth of one percent of that to oppose him.

That simply cannot be right. It is not a "reasonable balance of competing interests." It is not "preservation of electoral integrity." It is First Amendment schizophrenia.

Not every multi-millionaire or billionaire who seeks to buy an elected office succeeds. But if the McCain-Feingold madness is not scrapped altogether and the simple identity of "money is money" rediscovered, then more and more high offices will simply be up for sale to the highest bidder.

Remind me again how that's a good thing?

Not a major event, but disappointing nonetheless:

Federal election regulators refused to ease limits on political advertising Tuesday, blocking an effort to let interest groups run radio and television ads mentioning elected officials within weeks of an election.

The Federal Election Commission voted 3-3 on a proposal that would have allowed such ads as long as they addressed public policy issues and did not promote, support, oppose or attack a sitting member of Congress. Supporters of the change said they wanted to strike a balance between campaign ad restrictions and constitutional free speech guarantees.

Since the proposal was a rule change, the 3-3 tie meant defeat.

So the schizophrenia that is campaign finance law stays as schizophrenic as ever. A dollar spent by me receives less constitutional protection than a dollar spent by a Member of Congress. The 2,001st dollar spent by me receives less constitutional protection than the 2,000th dollar. A dollar to be spent on the 60th day before an election receives less constitutional protection than a dollar to be spent on the 61st day before an election. A dollar spent by me using my blogonym receives less constitutional protection than a dollar spent by me using my real name. A dollar spent opposing a bigot politician receives less constitutional protection than a dollar spent opposing a bigot amendment.

That simply cannot be right. None of it makes any sense at all.

But, heck, it's just the First Amendment. No big deal, right?

"I'm Kip and I approved this blogpost..."

To review, campaign finance jurisprudence, from Buckley v. Valeo, 424 U.S. 1 (1976), all the through McConnell v. FEC, 540 U.S. 93 (2003), are collectively on my list of the Ten Worst Supreme Court Cases. The court has crafted a schizophrenic interpretation of the First Amendment — which in this context should need no interpretation. Of all the categories of speech that were intended to be protected, and ought to be protected, by the First Amendment, political speech surely ranks at the top of the list. It should be absolutely sacrosanct.

Nevertheless, the Court has contorted and rationalized its way into an incomprehensible and indefensible set of rules, and rationalizations for Congress' rules, limiting free speech in politics. Most notably among these is of course the Bipartisan Campaign Reform Act of 2002, a/k/a "McCain-Feingold."

For example, according to the Supreme Court, Michael Bloomberg's money is "speech" but mine isn't (i.e., he can spend $70 million getting re-elected but I cannot spend one-tenth of one percent of that to oppose him).

That simply cannot be right.

Perhaps the only aspect of McCain-Feingold (and the Court's defense of it) worse than this insolent "money may or may not be speech" gobbledygook is the idea that the First Amendment can apply on some days of the calendar but not others:

"Electioneering communications," under the 2002 law, are ads that corporations and labor unions (including many non-profit corporations) pay for out of their own treasury funds, when the ads run in an area where a federal candidate is on the ballot (everywhere, for presidential candidates), use that candidate's name, and appear within 30 days before a primary election and 60 days before a general election — the "blackout" period. As of now, that period, at least for the presidential campaign, is to start next December, 30 days in advance of the Iowa caucuses.

A "blackout period" is just another term for censorship. That's how far into the abyss we have sunk: Unapologetic censorship of political speech is deemed, by Congress and the Court, as consistent with the First Amendment — as long as it's "just sometimes."

That simply cannot be right.

The Supreme Court now has an opportunity to climb up from the muck of McCain-Feingold and dismantle its loopy campaign ad jurisprudence. It is hearing oral arguments today in a case, Federal Election Commission v. Wisconsin Right to Life (06-969), that presents an as-applied challenge to the blackout period.

Unfortunately, and as is so often the case with Supreme Court litigation, there are complicating issues (in this instance, "mootness") that may result in the Court not even addressing the underlying substantive question. Hopefully that will not be the outcome. Hopefully the (reconstituted) Court will issue a mea culpa and strike down the blackout period, and perhaps all of McCain-Feingold and — wishful thinking — all the Court's embarrassing campaign finance detritus.

Again: It is preposterous — un-American — to suggest that the Bill of Rights applies in November but not December. With each new campaign finance case the Court humiliates itself even further.

It's time to cut through the Gordian knot and bring some sanity back to this process.

More thoughts from Senator Mitch McConnell (as in "McConnell v. FEC") (WSJ-$)

---

One footnote:

In 2003, Sandra Day O'Connor joined the four liberal justices in upholding large portions of McCain-Feingold law. She has since retired and her replacement, Justice Samuel Alito, is considered more conservative.

Good outcomes or bad, I'm not particularly looking forward to these "reconstituted Court" cases. They sully the Court's reputation one way or the other.

If you had any lingering doubts that all politicians are, by definition, moral defective, then let those doubts be forever dispelled:

Elrick Williams's toddler niece Carlyn may be one of the youngest contributors to this year's presidential campaign. The 2-year-old gave $2,300 to Sen. Barack Obama (D-Ill.).
...
Such campaign donations from young children would almost certainly run afoul of campaign finance regulations, several campaign lawyers said. But as bundlers seek to raise higher and higher sums for presidential contenders this year, the number who are turning to checks from underage givers appears to be on the rise.
...
Although campaign finance laws set a limit of $2,300 per donor per campaign, they do not explicitly bar donors based on age. And young donors abound in the fundraising reports filed by presidential contenders this year.

You don't know who to bitch-slap first:

--the sleazeball politicians for robbing the cradle (or, in Obama's case, suddenly "discovering" their own "no kiddie money" policies only after they're caught breaking them — the article notes that this is a recurring problem in the Obama campaign, not a one-time aberration), or

--the sleazeball parents who use their kids as fronts to launder unethical if not illegal campaign cash.

More:

Paula Madison, a Los Angeles entertainment executive who is one of Elrick Williams's sisters (he referred calls to her), said Williams had not been regularly involved in political fundraising but got excited about the notion of seeing an African American elected president. He talked to every member of the family about his desire to help Obama. One relative served as a trustee for a fund set up for Williams's children, nieces and nephews, Madison said.

They believed that because a trustee was legally responsible for handling the children's money, that trustee could make the donations on their behalf.

They "believed" wrong. So wrong that if I were a prosecutor I would seek indictments against any such trustees who squandered any minor's trust fund assets on campaign contributions. If I were a juror in any such trial, then I would summarily vote to convict. Such financial malpractice can never, under any circumstances, not constitute criminal breach of fiduciary duty (not to mention plain old theft).

---

Just to be clear: I remain unequivocally opposed to campaign contribution limits and the hopelessly schizophrenic holding of Buckley v. Valeo. But I also believe in the enduring robustness of the legal doctrine of infant incompetence and certainly in the solemnity of fiduciary duty. Those long-standing rules clearly trump the reductio ad absurdum propositions that a two-year old can make an informed decision about donating to a political campaign, or that a trustee is legally authorized to make that decision for her.

"Different candidates have different strengths. Some are wealthy; others have wealthy supporters who are willing to make large contributions. Some are celebrities; some have the benefit of a well-known family name. Leveling electoral opportunities means making and implementing judgments about which strengths should be permitted to contribute to the outcome of an election. The Constitution, however, confers upon voters, not Congress, the power to choose the Members of the House of Representatives, and it is a dangerous business for Congress to use the election laws to influence the voters' choices."
--Davis v. Federal Election Commission

They weren't only equal before God and the law. They were equal every which way. Nobody was smarter than anybody else. Nobody was better looking than anybody else. Nobody was stronger or quicker than anybody else. All this equality was due to the 211th, 212th, and 213th Amendments to the Constitution, and to the unceasing vigilance of agents of the United States Handicapper General.
--Kurt Vonnegut, "Harrison Bergeron" (1961)

To review: The Supreme Court, in its schizophrenic campaign finance decision Buckley v. Valeo, 424 U.S. 1 (1976), held that it is constitutionally protected speech to spend money to get yourself elected to public office, but not to get someone else elected to that same public office. So, for example, Michael Bloomberg was able to spend $70 million to run for re-election as mayor of New York, but I was barred by law from donating 0.1% of that to his opponent's campaign.

This created a pesky problem for incumbent politicians: rich people might actually spend money to run against them. Unacceptable. So they enacted, in a patently self-serving maneuver, an exemption from the Bipartisan Campaign Reform Act (BCRA), a/k/a "McCain-Feingold." This exemption, generally called the "Millionaire's Amendment," allowed candidates to exceed McCain-Feingold's limits if their opponents (who, recall from Buckley, can always spend as much of their own money as they want) spent beyond a certain amount.

(My understanding, incidentally, is that the Millionaire's Amendment was forced upon John McCain as a take-it-or-leave-it ultimatum in order to secure enough votes to pass BCRA in the first place.)

Fast-forward to yesterday. The Supreme Court quite rightly struck down the Millionaire's Amendment as a violation of the First Amendment:

We have never upheld the constitutionality of a law that imposes different contribution limits for candidates who are competing against each other, and we agree with Davis that this scheme impermissibly burdens his First Amendment right to spend his own money for campaign speech.
...
While BCRA does not impose a cap on a candidate's expenditure of personal funds, it imposes an unprecedented penalty on any candidate who robustly exercises that First Amendment right. ... [A] candidate who wishes to exercise that right has two choices: abide by a limit on personal expenditures or endure the burden that is placed on that right by the activation of a scheme of discriminatory contribution limits.

In other words, there is no functional difference between forbidding you from spending your own money and "merely" penalizing you for it. Since the government cannot engage in the former, it ought not be able to engage in the latter. Hardly a controversial syllogism.

Meanwhile, since "campaign finance" jurisprudence is First Amendment jurisprudence, strict scrutiny applies: Is the restriction necessary to achieve a compelling government interest? Justice Alito holds no punches:

The burden imposed by §319(a) on the expenditure of personal funds is not justified by any governmental interest in eliminating corruption or the perception of corruption. The Buckley Court reasoned that reliance on personal funds reduces the threat of corruption, and therefore §319(a), by discouraging use of personal funds, disserves the anticorruption interest. [Bold added; underline in original.]

The Court also rejected "leveling the playing field" (i.e., restricting speech to equalize it) as a legitimate government interest. The Court saw the Millionaire's Amendment for what it was: Naked, brazen incumbent entrenchment.

There is a downside to the decision, however:

The advantage that wealthy candidates now enjoy and that §319(a) seeks to reduce is an advantage that flows directly from Buckley's disparate treatment of expenditures and contributions. If that approach is sound — and the Government does not urge us to hold otherwise — it is hard to see how undoing the consequences of that decision can be viewed as a compelling interest.

Translation: There appears to be no interest on the Court — or at least an insufficient number of votes — to revisit Buckley outright. That's unfortunate. (Justice Stevens, meanwhile, would resolve Buckley's schizophrenic holding by going in the "Harrison Bergeron" direction and allowing the government to restrict self-funded campaigns equally with contribution-funded campaigns — i.e., no First Amendment for anyone.)

(The Court also struck down a disclosure requirement associated with the Millionaire's Amendment on similar reasoning.)

The case is Davis v. Federal Election Commission, No. 07–320 (June 26, 2008) (PDF - 39 pages). The Millionaire's Amendment appears as an appendix in the decision. Note that Buckley v. Valeo is on my list of "Worst Supreme Court Cases."

---

Every campaign finance case is opportunity for libertarians to "stand above it all" and sigh with disappointment (disgust?). All sides in the debate seem to agree on one thing: The whole point of the exercise is to combat corruption in politics. Fair enough, and noble enough.

But it is the libertarians, and only the libertarians, who ask the precedent question of why we have so much corruption in politics. The answer is simple: Because government does so much that invites corruption, that caters to corruption and that perpetuates corruption. Things that have nothing to do with the core functions of government — the functions that the Framers did, and most people today do, associate with a free society. Things that are explicitly designed to benefit, not everyone equally or equitably, but some at the expense of others. From earmarks to tax breaks, from nanny statism to nanny subsidies, from oil wells to oil wars.

If the politicians didn't do so much that they were never meant to do, then no one would try to buy them. That would be the best "campaign finance reform" of all.