Broccoli, Islam, Trump, and the Vanishing Line Between Political Speech and Speech

July 19, 2016   •  By Brad Smith   •    •  ,

One of the big problems with campaign finance reform is deciding what speech should be regulated. As Oliver Wendell Holmes famously wrote, “Every idea is an incitement. It offers itself for belief and, if believed, it is acted on unless some other belief outweighs it or some failure of energy stifles the movement at its birth.” (Gitlow v. New York). Almost anything anyone says might “influence” an election. Something as mundane as publicly stating “Broccoli is good for you” might influence an election, if a major candidate has announced that he doesn’t like broccoli.

That’s why, in Buckley v. Valeo, the Court narrowly defined the term “expenditure” to mean what became known as “express advocacy.”

One weakness for reformers is that they routinely stand accused (because it is largely true) of limiting the speech and sources of influence of others, but not themselves. Why, for example, should the activities of the leading reform groups, which regularly praise favored politicians who endorse their view and criticize politicians who disagree, and many of which file ethics and campaign finance complaints against politicians, be excluded from the type of regulation they would impose on others? If a reform group files a complaint against a politician and issues a press release about it (which certainly might cause some bad press for the politician, whether or not he is ultimately vindicated, and which may affect his election prospects), it can do so with unregulated money. If the politician wants to respond, he must do so with regulated money.

Anyway, I think about such things when I see things like this. A group called American Islam is sponsoring a big march in D.C. two days after Donald Trump accepts the Republican presidential nomination. According to the group’s president, the march will “demonstrate that America is stronger together and that we stand united for the security of our nation and in countering terrorism – and that when one person, one religion, one race is discriminated against, we are all discriminated against.” In case you don’t know who they might be referring to, “[a]n American Islam video promoting the event showed religious leaders vilifying Islam and features Trump’s now-signature call for ‘a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what the hell is going on.’”

Is there any chance that this might affect a few votes? If one agrees with American Islam (CCP takes no position on such issues, and for the purposes of this post, nor will I), wouldn’t one be more likely to vote against Trump? Does the timing seem coincidental? Does that mean they hope to defeat Trump, or merely raise awareness of their organization and its point of view? Or both? Should the money they spend to hold such a rally be regulated, limited, or even banned? The group is actually “American Islam, Inc.,” so presumably it is a corporation. If you answered the last question with a no, it’s activities should not be limited or banned, does this fact change your answer?

Campaign finance regulation poses many dangers to free speech and to democratic debate. But unless it is cabined off, it can swallow up pretty much all political discussion. Every time a court or a legislature draws a line, however, the self-styled “reform” community has a cow about what it calls circumvention, by which it means, more or less, “people, other than themselves, engaging in legal activity that might influence elections.”

In the end, there is no real way out of this mess for the regulators short of drastic medicine. I have suggested that the Supreme Court got the core issue wrong decades ago – that Congress has no power to regulate, and the First Amendment forbids it from regulating, political campaigns. The proper, and constitutional, approach calls for “separation of campaign and state.” My distinguished friend John McGinnis says I’m wrong, but that the Court must approach the issue as it would any other free speech issue, which, in practice, would also mean much less regulation.

Either way, the American Islam, Inc. march is a reminder that the campaign finance laws are full of arbitrary distinctions that allow government to manipulate political speech, and this is very unhealthy for a democracy.

Brad Smith

Brad Smith