‘Don’t get rolled’ by the New York Times Co.!

The New York Times and The Boston Globe, which are owned by the New York Times Co. — a publicly-traded corporation with about $3 billion in annual revenue, both published editorials today arguing that the Supreme Court should limit the rights of corporations in deciding Citizens United v. FEC.

I’ll briefly note the hypocrisy of the New York Times Co. papers: The New York Times vigorously defended its First Amendment corporate rights in the landmark New York Times v. Sullivan Supreme Court case — which upheld a press freedom relating to defamation or libel of public figures. The corporate-owned paper, not just its individual editors or reporters, enjoy this First Amendment freedom.

Setting that aside, let’s look at the substance of the arguments in the editorials:

The Boston Globe’s editorial warns against striking down Austin v. Michigan Chamber of Commerce, which allowed the government to ban the independent speech of corporations. “Striking down that precedent would be a mistake. Corporations, which are authorized by the government, can’t vote or serve on juries…”

But wait, can The Boston Globe vote? Can The Boston Globe serve on juries? Certainly not. Then why does it enjoy First Amendment rights? According to the Globe, “the distinction between corporate speech and individual speech is clear enough.” So, if the government so desired, it could require the Globe‘s editorial board to only editorialize using their individual resources. After all, if there’s something sinister about combining resources using the corporate form to speak out on elections, the Globe needs to be stopped from making endorsements or opining on political issues immediately.

Filed Under: Blog

Citizens United: The reform community reverses itself on the importance of precedent

We have to admit, it has been more than a little entertaining over the past few months to watch the so-called “reform community” tie itself in knots trying to defend adherence to precedent and “judicial modesty” as the Supreme Court considers whether it should overrule Austin v. Michigan Chamber of Commerce and McConnell v. Federal Election Commission. (Question: how could the Court not, when the government has admitted, and still holds, that these precedents in fact would allow for the government to ban books?) First, most members of the “reform community” have a liberal view of the role of the courts, and understand judicial notions of precedent and judicial restraint only in characature, so their efforts to scold and shame conservatives into upholding an unconstitutional law doesn’t much wash. 

Second, and more importantly, until very recently many of these same reform advocates were big fans of an active judiciary that would ignore precedent. 

Filed Under: Blog

Senator Baucus threatens Humana for political dissent

The Associated Press and others are reporting an alarming development for the First Amendment in the health care debate. Apparently, Montana Senator Max Baucus has requested an investigation of Humana, a health insurance company, for daring to criticize his health care reform proposal and disagreeing with him in the likely outcome should it be passed into law.

From the story

The government is investigating a major insurance company for allegedly trying to scare seniors with a mailer warning they could lose important benefits under health care legislation in Congress.

The Health and Human Services Department launched its investigation of Humana after getting a complaint from Sen. Max Baucus, D-Mont…

“It is wholly unacceptable for insurance companies to mislead seniors regarding any subject-particularly on a subject as important to them, and to the nation, as health care reform,” Baucus said Monday, disclosing the HHS investigation…

In a warning letter to Humana, HHS said the government is concerned that the mailer “is misleading and confusing” partly because the company’s lobbying campaign could be mistaken for an official communication about Medicare benefits.

HHS ordered the company to immediately halt any such mailings, and remove any related materials from its Web site. In the letter, the government also said it may take other action against Humana, which is based in Louisville, Ky.

Humana’s speech crime is informing its customers that it does not believe that the health care legislation proposed by Senator Baucus will be able to protect their current benefits.

The suppression of dissenting views is simply not tolerated by the First Amendment, and it is shocking that a United States Senator would use the power of his office to initiate an investigation of a private company simply because it does not share his analysis of pending legislation.

Filed Under: Blog

DC Circuit Decides EMILY’s List v. FEC

Groups that pose no threat of corruption to candidates or officeholders cannot be subject to contribution limits.

CCP’s release is here.

Filed Under: Blog

Appeals Court Rules in favor of Emily’s List, First Amendment

The United States District Court of Appeals for the District of Columbia Circuit today ruled in favor of EMILY’s List in the case EMILY’s List v. Federal Election Commission, striking down campaign finance restrictions on independent groups.

Responding to the Court’s ruling, Center for Competitive Politics Vice President Stephen H. Hoersting said “We’re grateful the court understands that groups that pose no threat of corruption should enjoy all of the speech that they and their donors can muster. Now groups that might create a PAC to give to candidates needn’t worry they will forfeit their right to run meaningful independent expenditures with unlimited donations.”

Filed Under: Press Releases

Will S.G. correct the government’s book banning mistake?

In Citizens United v. Federal Election Commission, the most recent blockbuster campaign finance and political speech case, the Supreme Court has been asked to decide whether the government can ban a documentary critical of Hillary Clinton in the days shortly before an election. This case afforded newly-minted Solicitor General Elena Kagan the opportunity to speak candidly about the government’s ongoing campaign of silencing citizens’ speech through the FEC.

While General Kagan did much to advance the government’s position addressing the many reasons why speech could be criminalized, she obfuscated in one of the case’s most central points: whether campaign finance laws and Austin v. Michigan Chamber of Commerce and McConnell v. FEC, at issue in Citizens United, allow the government to censor books.

Asked whether the government possessed book banning authority through the Federal Election Campaign Act, the Solicitor General assured the Court books would remain safe. In March, the same government reasoned just the opposite: books could be banned if they contained a call to vote for or against a candidate. Speech that would be outlawed in March is now tolerated, at least until Halloween, and then all bets are off. All promises of the Solicitor General aside, the First Amendment means the same thing today as it did six months ago.

Filed Under: Blog

Charges dropped against W.V. city councilor

Rick Hasen’s Election Law Blog notes that a prosecutor decided to drop charges against Clarksburg Councilman Martin Shaffer. Shaffer was charged with violating, as well as conspiring to violate, West Virginia Code Section 3-8-12(a), which states: “No person may publish, issue or circulate, or cause to be published, issued or circulated, any anonymous letter, circular, placard, radio or television advertisement or other publication supporting or aiding the election or defeat of a clearly identified candidate.”

That’s right; his crime was producing a political newsletter, which critically examined the city’s government and management.

CCP wrote about this case in June:

At least in the America we know and love, disliking a political message isn’t a reason to punish it, especially through a criminal prosecution. Indeed, CCP is not alone on this as both the Supreme Court and a federal district court in West Virginia have issued rulings protecting anonymous political leaflets and newsletters under the First Amendment — even when they are published around election time.

Filed Under: Blog

The Devil We Know? Evaluating the FEC as Enforcer

The Federal Election Commission administers and enforces federal election laws. But campaign finance reformers have argued for years that the FEC does little to stem the exploitation of “loopholes” in election law. This article evaluates the enforcement actions of the regulatory body by exploiting a unique database of legal complaints moderated by the FEC since 1996. The author has coded over 700 complaints on a variety of dimensions, including the issue focus, the characteristics of the complainant and respondent, and the final penalty levied by the Commission. Among the patterns he finds are that regulatory votes are rarely split along partisan lines and that Commissioners levy (some quite substantial) fines in about 30 percent of all enforcement cases. The major theoretical question of this paper is whether the FEC punishes potential violators of election law in a partisan manner, whether they are biased toward candidates, and whether certain structural changes at the FEC influence performance. The evidence suggests an FEC (increasingly) more functional than many often claim, with no slam-dunk patterns suggestive of large-scale bias.

Filed Under: Enforcement, Research, Enforcement, Enforcement

Will Campaign Finance Turn John Roberts into a Conservative Earl Warren?

George Washington University Professor Jeffrey Rosen, the perceptive scholar and popular critic of the Supreme Court, has a curious column out in the New York Times. 

In it, he argues that if Chief Justice Roberts entertains a broad ruling in Citizens United v. FEC, overruling Austin v. Michigan Chamber of Commerce and McConnell v. FEC on a 5-4 vote, he will become a “conservative Earl Warren,” a “polarizing” figure.  Rosen argues that the Warren Court’s decisions on criminal procedure, consistently decided on 5-4 and 6-3 votes, made Warren “the symbol of judicial arrogance.”  In particular, Rosen cites Miranda v. Arizona (“you have the right to remain silent; you have the right to an attorney…”), Mapp v. Ohio (the exclusionary rule for evidence); and Escobedo v. Illinois (the right to an attorney during police interrogation). 

Wow.  This is really an example of praising with faint damns.


Filed Under: Blog

The Tangled Web We’ve Woven: What Weight to Give Precedent in Citizens United?

The Supreme Court has by now voted on Citizens United v. FEC and the justices should be writing their opinions.  After a special oral argument last week, most observers were predicting a win for Citizens United in their battle to air “Hillary: The Movie,” (or more realistically, for Citizens United’s future political speech efforts.)  The question will be how large the win is – will the Court overrule the a pair of recent precedents, Austin v. Michigan Chamber of Commerce and McConnell v. FEC, which themselves twisted and distorted the Court’s prior decision in Buckley v. Valeo, while claiming to leave Buckley intact (a sort of “faux judicial restraint)?  Or will it decide the case on more narrow grounds?

In this article from the October 2008 issue of Engage, journal of the Federalist Society’s Practice Groups, CCP Academic Advisor and George Mason University Law Professor Allison Hayward  argues that a “principled court” can and should “repair the mistakes of the past.” 

She argues, in part:

Unfortunately, the present blend of court-crafted doctrine and Congress-crafted statute is complicated and irrational. Thus, attempting to scrutinize future cases within existing precedent will not help decrease the burden this conglomeration imposes on political activity. That complexity alone may raise a deeper legal question. Can complexity itself pose an unconstitutional burden on speech, association, or other protected activity?

Filed Under: Blog

The Center for Competitive Politics is now the Institute for Free Speech.