The Democratic vision of Big Brother



Filed Under: In the News

No ”Big Sky” for speech in Montana

In the wake of Citizens United, those jurisdictions that had previously imposed campaign spending bans on corporations have had to rethink their state or local laws.

Not the so-called “Last Best Place.”  The Montana Attorney General is defending that state’s expenditure ban.  According to AG Steve Bullock, the state’s 1912 law remains constitutional.  He is arguing that Montana has a different experience with corporate spending, and can show that spending corrupts politicians.

Now, I have said publicly a couple of times that I don’t think Citizens United necessarily controls in jurisdictions where history and experience indicate certain industries or kinds of corporations pose distinctive threats in politics.  Citizens United does require that those jurisdictions have to show that a BAN on independent spending is a tailored response to a genuine threat, and that’s a pretty difficult argument to make. 

What Montana is attempting to argue is that all corporations pose this threat.  Not explicitly – Bullock acknowledges that the state’s corporate expenditure ban comes out of a history of political struggles involving mining companies.  But the litigants in the present case involve a small painting business and a conservative advocacy group – both, as corporations, prohibited from making expenditures in Montana. 

What’s the justification for that?

Filed Under: Blog, Completed Case, Litigation Blog/Press Releases, Western Tradition Partnership v. Bullock Other Links, Montana

ThinkProgress clings to conspiracy theory on US Chamber & foreign money

Apparently trying to salvage their now-widely discredited allegations that the U.S. Chamber of Commerce is illegally funneling foreign money into their political ad campaign,* Center for American Progress-affiliated blog ThinkProgress has decided to double down on their dubious charges

To begin with, the new “report” repeatedly insinuates that the U.S. Chamber has some special account that they fund their political ads out of, and it is that account that foreign corporations are contributing to. In, fact, it is the Chamber’s general treasury fund that is at issue here, the money that presumably funds most if not all of the Chamber’s activities. A few examples of the ThinkProgress deception:

…the Chamber raises money from foreign-owned businesses for its 501(c)(6) entity, the same account that finances its unprecedented $75 million dollar partisan attack ad campaign.

…The Chamber and the media largely ignored ThinkProgress’ revelation about the Chamber’s direct foreign fundraising to its 501(c)(6) used for attack ads.

Filed Under: Blog, Disclosure, Disclosure Press Release/In the News/Blog

Why PACs don’t necessarily speak for connected entities

One of the arguments raised during the Citizens United case was that the ban on corporate political speech wasn’t actually a ban, because corporations could still speak through their PACs.

The Court did not buy this argument. In Justice Kennedy’s majority opinion in  Citizens United he stated:

Section 441b is a ban on corporate speech notwithstanding the fact that a PAC created by a corporation can still speak. See McConnell, 540 U. S., at 330-333 (opinion of KENNEDY, J.). A PAC is a separate association from the corporation. So the PAC exemption from §441b’s expenditure ban, §441b(b)(2), does not allow corporations to speak. Even if a PAC could somehow allow a corporation to speak-and it does not-the option to form PACs does not alleviate the First Amendment problems with §441b.

No doubt this struck a few people, at least, as strange. Most people assume, I think, that affiliated PACs are almost wholly indistinguishable from the sponsoring entity, and it seems odd that the Court would assert that they are separate and that the PAC does not necessarily and always speak on behalf of the sponsoring entity.

Today, courtesy of Katrina Trinko at National Review Online comes a story that illustrates perfectly why the Court was wise to reject the contention that corporations can speak through PACs:

VFW Calls on VFW-PAC to rescind endorsements

In a statement released yesterday, the VFW further reacted to the endorsements made by the VFW-PAC. Sen. Barbara Boxer was among those endorsed. From the VFW’s statement:

The angry tone and tenor of the telephone calls and messages being received at national headquarters make it clear that many of our members are not cognizant of the fact that VFW National By-Laws clearly stipulate that the VFW Commander-in-Chief is not authorized to direct or otherwise attempt to introduce his control over the VFW PAC. Furthermore, no membership dues or donations made to the VFW or VFW Foundation are used for the VFW PAC. …

As determined in the VFW By-Laws, as the national officers, we have specific responsibilities to take definitive action when events can have a detrimental impact on the organization. It is clear to us that the current situation now demands direct action; therefore, we are requesting the chairman and the directors of the Political Action Committee immediately rescind their endorsement actions.

For those wondering what the Court might have been thinking of in rejecting the argument that PACs allow corporations to speak, this should provide a pretty good answer.

Filed Under: Blog

Why not disclose? What do you have to hide?

While the latest demagoguery over foreign money in campaigns is experiencing a mammoth backlash, well deserved, one has to ponder why the assertions had any traction at all.  I think part of the explanation may be how easy it is to color a privacy interest as an admission of wrongdoing.  How often have you heard something like  – “Well, why won’t you just tell us?  What do you have to hide?”

It just so happens that Daniel Solove, law professor at George Washington University School of Law, has thought carefully about the power of that kind of argument, and the dangers lurking within it.  In fact, he has a book coming out in 2011 titled Nothing to Hide: The False Tradeoff Between Privacy and Security.  But we need not wait uninformed for that date, as Solove has argued against the same characterization in other works.

In an essay posted on SSRN, Solove presents the problem of disclosure (or “privacy” but he talks about why “privacy” is a inexact way to describe it) as a challenge facing the individual and his or her control over what the rest of the world “has” of that individual.

Filed Under: Blog, Disclosure, Disclosure Press Release/In the News/Blog

Chambergate, and the unwittingly radical reach of reform

We have noted the absurdity of Chambergate and the liberal groups that are pushing the claim that the U.S. Chamber of Commerce is somehow “stealing” American elections with foreign money.  I have also been critical of those who foster such conspiracy views as raising valid questions.

Professor Richard Hasen argues that all these questions would go away – or at least be alleviated – if the FEC merely had the power to conduct random audits of political actors. Though it may sound innocuous – and I speak here as one who has long supported random audit authority for the FEC when it comes to political committees – the idea of random audits of groups or individuals other than political committees that make independent expenditures is a truly radical idea that would impose unprecedented burdens on political speech and association. 

Filed Under: Blog, Disclosure, Disclosure Press Release/In the News/Blog

Chambergate, “Disclosers,” and the silly season of campaigns

It is the silly season of the campaign, the time when desperate partisans resort to desperate measures.  Right now, the silly season is epitomized by the wild accusations of Think Progress, the web arm of the liberal activist group Center for American Progress, which has been launching accusations that the U.S. Chamber of Commerce is funding its political activity with illegal foreign funds. 

We know that the Chamber isn’t spending foreign money on politics – or at least any sensible person knows it.  We know it in the same way that we know that Barack Obama was born in the U.S., even if we can’t prove it to the complete satisfaction of every birther out there.  The guilty until proven innocent, “prove a negative” approach of the October Disclosers is political fodder, not serious argument about which there is reasonable doubt.  Responsible experts in the field should not exacerbate the problem by suggesting that the “Disclosers” raise reasonable questions. 

Filed Under: Blog, Disclosure, Disclosure Press Release/In the News/Blog

SpeechNow speaks now

Nearly three years ago,, an unincorporated group of individuals, sought permission from the Federal Election Commission to raise and spend money for political speech without having to register first with the government, and comply with numerous, onerous regulations, including limitations on the group’s ability to raise money.  It took over two years of first dealing with, and then litigating against, the FEC, but finally this past spring the U.S. Court of Appeals for the D.C. Circuit held that could raise money freely to finance its independent speech.  We are proud to have represented in this battle, together with our friends at the Institute for Justice.  The fight is not over – we are seeking Supreme Court review of the the D.C. Circuit’s ruling that SpeechNow, while free to raise money, must still register and file with the government as a PAC.  But we are proud of the rights SpeechNow has won so far. 

And now, SpeechNow is finally able to speak out.  This ad begins airing on Monday in Wisconsin.  Congratulations SpeechNow. 

Filed Under: Blog

Guilty until proven innocent?

The U.S. Chamber of Commerce continues taking fire from Democratic officials and liberal interest groups after a Tuesday blog post in ThinkProgress alleged that the business organization used foreign funds for political advocacy.

Despite the uproar from Democratic candidates and allied groups, no actual evidence has emerged that the Chamber violated the law, which prohibits foreign nationals from funding political activity. It’s not improper for 501(c)(6) business associations such as the Chamber to accept money from foreign affiliates to fund international operations as long as the organization maintains a reasonable accounting procedure to ensure such funds aren’t spent on American politics. The Chamber has repeatedly said it has such a system in place and no foreign funds were spent on its political efforts.

Furthermore, the idea that the Chamber is funding its political ad campaign with this money is laughable. The Chamber has an annual budget in excess of $150 million, of which it appears about two-tenths of one percent comes from foreign enterprises.

Unsatisfied, prominent Democratic politicians such as Sen. Al Franken, Democratic Congressional Campaign Committee Chairman Chris Van Hollen, the New York Times editorial board, MSNBC talking heads Chris Matthews and Ed Schultz and liberal interest groups such as are demanding a Department of Justice criminal investigation and a Federal Election Commission inquiry.

Filed Under: Blog

Chamber protests based on ‘conspiracy theory’

Two liberal advocacy groups, and Public Citizen, plan a noon demonstration in front of the Washington headquarters of the U.S. Chamber of Commerce Thursday.

The activists are protesting the Chamber for allegedly accepting foreign funds for political activity, but no evidence has emerged to validate these accusations after they were raised by ThinkProgress, a blog of the left-leaning Center for American Progress.

“This stunt is a blatant attempt to intimidate, harass and discredit the Chamber, whose political opponents are demanding criminal and Federal Election Commission investigations based entirely on a blog’s conspiracy theory,” said Center for Competitive Politics President Sean Parnell.

Filed Under: Press Releases

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