Chicken Little, Inc.

A professional campaign of fear and loathing is in full effect post the Supreme Court’s ruling in Citizens United. While some controversy surrounds the Court because of its strong stance in protecting the First Amendment, a great whimpering of fear and emotional confusion surrounds what really happened. 

For starters, Citizens United v. FEC is the election law equivalent of Brown v. Board of Education, not “the worst Supreme Court decision since the Dred Scott case,” as Rep. Alan Grayson of Florida and MSNBC talking head Keith Olbermann howled.

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Why The Roberts Court Must Avoid Constitutional Avoidance

The clock keeps ticking away as election law observers await the Supreme Court’s to release its opinion in Citizens United v. FEC. This kind of delay has caused some anxiety for members of the campaign finance reform lobby. With each day that passes, the probability that something big is about to happen grows – stirring the pot of discontent. In Citizens United, “something big” means bringing clarity to the guarantee of free expression and clearing the mumbo jumbo of First Amendment jurisprudence that has muddled election law since the Court’s new take on campaign finance in McConnell.

The reform lobby has shifted into alarmist mode because they realize that if Austin and McConnell fall, a revived First Amendment jurisprudence will thwart many of their efforts to ban, regulate, and limit political speech nationwide. This concern can be seen in the writings of Fred Wertheimer, President of Democracy 21, who grows more anxious on a daily basis.

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Debunking Fred’s electoral edicts

Corruption, or its boundless appearance, is very much on the mind of folks at Democracy 21. So much so that it has issued its own seven-part mini-series on the impact of Citizens United and its manifold fears about corruption. While it is proper to focus on corruption, and its boundless appearance, we should be equally concerned about free speech, and its shrinking appearance.

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Celebrating free speech at the FEC

For the first time, members of political committees subject to the long arm of the Federal Election Commission’s audit authority may speak up when the FEC is dead wrong. Hard to imagine that the national gem for making politics clean lacks foundational safeguards inherent in a free society. Long considered a fundamental principle of due process — the right to be heard — the FEC has some catching up to do. Ever since progressive notions of justice sprung up from the Magna Carta in 1215, regulators worldwide have scurried from its light of justice. Enter stage left, the FEC.

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Professor Winkler Weighs in on Citizens United

These are troubling times in the campaign finance “reform” camp. The reform camp is increasingly placing its hope, and public relations efforts in  the case of Citizens United v. FEC on the idea that the Court should not disturb longstanding precedent.  During oral argument, we at CCP were tickled when Chief Justice John Roberts brought Seth Waxman up short when Waxman began the “100 years of history meme.” 

Roberts’ weapon? A brief filed by CCP Advisor Allison Hayward and other campaign finance scholars that deconstructed the Court’s longstanding “history” of reform first developed by Justice Frankfurter in the UAW case over 50 years ago.  This week, on his popular Election Law blog, Prof. Hasen has gone so far as to seek out others to rebuff the scholars’ brief filed in the Citizens United challenge, including Professor Adam Winkler of UCLA.

Toward the end of correcting “misconceptions,” law Professor Winkler (no relation to the Fonz), provided some helpful material. Prof. Winkler has spent several years researching and writing on corporate political speech and written important law review pieces on the origination of the 1907 Tillman Act banning corporate contributions to campaigns.  What is most worth noting, though, is the broad agreement reached between Winkler and the scholars’ brief filed by Prof. Hayward. Prof. Winkler does not raise any noticeable disagreement with the scholars’ brief, other than to note that in his personal estimation the desire to protect shareholders is very important.

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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.

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Kudos to the ‘do-nothing’ FEC Commissioners: the Constitution compels humble restraint

When it comes to preserving our constitutional liberties, it is so often the case that valuing restraint over action is a virtue, and a message sorely needed to be repeated. The Federal Election Commission is an especially unusual creation — itself possessing the rare power to meddle with fellow citizens’ political activities. Recently, a small chorus of voices has crept up; worried that something is rather afoul at the FEC — there have not been enough fines, investigations, and penalties levied against citizens.

Some election law observers and those within the self-styled reform community have launched their own series of labels for the hesitant commission — “obstructionist,” “defunct,” and “ideological” are among the many. These critics construct an overly simplified problem at the FEC, reasoning that a commission that authorizes fewer investigations and penalizes fewer citizens must somehow be corrupt or unwilling to uphold the law. But these critics all lose sight of more important considerations, and considerations which carry the full blessing of the United States Supreme Court.

As of late, The Washington Post editorial page, Talking Points Memo, and others have put blame on Republican commissioners as the source of the commission’s roadblock. Reasoning these commissioners just don’t believe in the law they are to enforce, it is generically assumed that every time they vote against enforcement or opening an investigation, some ulterior political motive must be at bay. But the Post, TPM, and others fail to recognize that something more important, the Constitution, just might be driving these commissioners’ decisions. And it proves worthy to note that these commissioners take an oath to uphold that Constitution.

Throughout the FEC’s history, the commission has been on the losing end of many free speech and constitutional challenges. The reason is easily understood: In our constitutional Republic we favor more speech and less government intervention in public debate. As George Washington reasoned, we must be not be too giddy in welcoming government authority: “Government is not reason; it is not eloquence, it is force. Like fire, it is a dangerous servant and a fearful master.”

(click the headline to read more)

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