Granite State Anti-Speech Bill is Stone Cold

The Old Man in the Mountain would be scowling—if he still loomed over Cannon Mountain—at an attempt by the New Hampshire legislature to stifle political speech in response to the Supreme Court’s ruling in Citizens United v. Federal Election Commission.

HB 1459, an act originally sponsored by state Sen. Maggie Hassan (D), would require corporations, partnerships, and non-profits to register with the Secretary of State’s office within 48 hours of launching a political advertisement-regardless of whether the advocacy is political or issue-based in nature. In its original form, the bill would have required non-profits to disclose their donors and corporations to disclose the maximum amount that the corporation would spend on political activity.

In effect, the New Hampshire legislature is attempting to execute a Stone Cold Stunner on all who wish to speak out in New Hampshire elections.

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

A GOP reversal on disclosure?

Filed Under: In the News

Anti-abortion group comes out against Citizens United ‘fix’

Filed Under: In the News

CCP releases policy briefing on ‘DISCLOSE Act’

The Center for Competitive Politics (CCP) has released a comprehensive, section-by-section analysis of the “DISCLOSE Act” as the House Rules Committee prepares to meet Thursday* to consider further amendments to the campaign finance bill before it reaches the full House.

The 19-page policy briefing for Members of Congress, staff, engaged policy groups, campaign finance lawyers and other interested parties details the numerous policy and constitutional flaws with the bill as its rushed to the floor by Democrats attempting to silence unfriendly voices as midterm elections approach.

“Sponsors of this bill have sought to sell this bill as ‘just disclosure,'” said Center for Competitive Politics Chairman Bradley A. Smith, a former FEC Chairman. “Not even its gimmicky title, though, can distract from the fact that this bill imposes criminal penalties for constitutionally-protected political speech, departs from the parallel treatment of unions and companies for the first time in more than 60 years and would confound and chill grassroots groups in the midst of an election cycle.”

The ‘DISCLOSE Act’ would (1) single out business groups for outright bans on political speech: government contractors would be prohibited from engaging in political speech as well as companies in the United States (even those with 80 percent of American shareholders) that attract  minimal foreign investment—no similar restrictions were included for labor unions with foreign connections, unions receiving government money or public employee unions negotiating for salaries and benefits; (2) create a far more onerous and vague disclosure regime than the Supreme Court cited in Citizens United, deterring grassroots groups from speaking out in midterm campaigns; and (3) explicitly sow chaos and confusion among those attempting to comply with campaign finance law by mandating that the law go into effect without clarification by the FEC of numerous vague and undefined provisions as well as slowing down the judicial review process.

CCP also released a two-page overview of the major provisions of the legislation: H.R. 5175 in the House and S. 3295 in the Senate. The House Rules Committee is scheduled to meet at 3 p.m. Thursday to consider 37 amendments to the legislation before crafting a procedure to bring the bill to the floor for a vote. The text of the bill as reported by the House Administration Committee is available here. The Rules Committee has also posted the Administration Committee’s report and a summary of the submitted amendments.

Filed Under: Disclosure, Disclosure Federal, Disclosure Press Release/In the News/Blog, External Relations Press Releases, External Relations Sub-Pages, Federal, Federal Press Releases and Blogs, Press Releases

Competition and contribution limits

Several months ago, the Brennan Center went all jiggy over a report, co-authored by Tom Stratmann of the George Mason University Economics Department, that they claimed showed that low contribution limits improved competitiveness in elections and helped challengers.  From their editorial in The Hill:

But our study found that low contribution limits cut into this advantage and help challengers. With lower contribution limits, incumbents cannot amass the types of war chests that scare away potential challengers.

This stood in stark relief to what many people thought, which is that low contribution limits made it harder for challengers to compensate for other advantages of incumbency, and could protect incumbents from competition.

(“Jiggy.” So ’90s.)

This prompted a short but meaningful kerfuffle, between the Brennan Center and me, over whether Stratmann’s findings deserved to be seen as the last word on this topic.  Here, here and here.

I left the debate with this point: that the dummy variables used in the study to control for other effects would not account for redistricting effects if redistricting and low-contribution limits worked at the same time to produce some change in the competitiveness of elections. That is, you might think you are measuring the effect of low contribution limits, because the low limits (at only certain levels—read the paper) appear to increase competitiveness, controlling for other variables. But, it could be that the effect the study attributes to contribution limit levels is really due to redistricting reform. Correllation isn’t causation, after all.

Read the full post on SkepticsEye 2.0

Filed Under: Blog

DISCLOSE mark-up blow-by-blow

On Thursday, the nine-member Committee on House Administration held a mark-up for the “Democratic Incumbents Seeking to Contain Losses by Outlawing Speech in Elections” (DISCLOSE) Act, also known as H.R. 5175.

In a 5-3 vote, the committee approved a manager’s amendment, introduced by Chairman Robert Brady (D-Pa.). The committee also debated and eventually approved 7 additional amendments.

Brady characterized the changes in his manager’s amendment in detail—some of which were technical. Brady said the new language would:

(1) provide an avenue for claiming a hardship exemption for TV disclaimers if the ad takes up too much time (this provision, though, seems contradicted by another clause in the bill stating it will go into effect 30 days after passage, regardless of whether the FEC writes regulations).

(2) make a disclosure provision slightly less onerous, requiring speakers to post a hyperlink on their website that directly links to the Federal Election Commission’s (FEC) website. Originally, the bill mandated a duplicate posting on the organization’s website.

(3) make clear that the restrictions on U.S. subsidiaries of international companies do not apply to those companies’ political action committees (PACs). They would be permitted to exist as long as the PAC is not directed by a foreign subsidiary (which is already illegal).

(4) amend the coordination regulations to provide “safe harbor” for communications related to grassroots lobbying on legislation. Again, without providing for FEC regulations, this provision would still ensure speakers are chilled in the midterm campaigns.

Rep. Dan Lungren (R-Calif.) and the committee’s two other minority members, Rep. Greg Harper (R-Miss.) and Kevin McCarthy (R-Calif.), offered a handful of speech-friendly amendments to DISCLOSE, each of which was voted down by the Democrats—except for two technical amendments (one on Internet regulation and one on a certification issue).

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

Kagan, Campaign Finance, and Banning Books

While “Reformers” Dissemble, Senator McConnell is Asking the Right Questions

Last week we noted that Common Cause President Bob Edgar criticized Senator Mitch McConnell for using “inflammatory” language and unfairly distorting the record of Supreme Court nominee Elena Kagan by selectively quoting from the record in Citizens United v. Federal Election Commission.  In that case, Solicitor General Kagan, on behalf of the U.S. government, argued that the government had the power to ban books and movies if they were produced or distributed by corporations, at least as long as Congress had made findings that they were a source of “corruption” of the political process.  Senator McConnell has been, understandably, highly critical of this position, and thinks it is something worth discussing as the Solicitor General is considered for a lifetime appointment to the nation’s high court.

On Friday, perhaps the best-known advocate of campaign finance “reform,” longtime lobbyist Fred Wertheimer, added his voice to the fray, accusing Senator McConnell of “distort[ing] the truth” about Kagan’s record.  What’s interesting to us is that Wertheimer makes only a passing effort to even argue that anything Senator McConnell has said “distort[s] the truth,” prefering to attack Senator McConnell personally.  But before turning to Mr. Wertheimer’s own distortions and attacks on the Senator, let’s examine what the Senate Minority Leader actually said.

After pointing out that the Obama Administration had imposed a gag order on insurance companies to prevent them from informing Medicare enrollees about how the President’s health care bill would affect Medicare coverage, Senator McConnell noted that the Administration had also supported limits on speech in Citizens United.

Filed Under: Blog

Lies, Common Cause Letters, and Statistics: Common Cause Attacks McConnell on Kagan

Common Cause President Bob Edgar is inflamed because Senator Mitch McConnell “recently said in a Senate floor speech that it is the ‘position of the Solicitor General and her office’ that the federal government has the power to ‘ban books.'”  Not true! claims Mr. Edgar. “[T]his sort of inflammatory language grossly misrepresents General Kagan’s position.”

Does it?  Let’s start with Ms. Kagan’s office.  Here is the relevant part of the transcript of the oral argument in Citizens United v. Federal Election Commission on March 24, 2009.  Arguing for the government is Deputy Solicitor General Malcolm Stewart, an experienced Supreme Court and campaign finance litigator.  The question was whether the government could prohibit the plaintiff, Citizens United, from airing a documentary film about Hillary Clinton because Citizens United is a corporation.

Justice Alito: What’s your answer to Mr. Olson’s point that there isn’t any constitutional difference between the distribution of this movie on video demand and providing access on the Internet, providing DVDs, either through a commercial service or maybe in a public library, providing the same thing in a book? Would the Constitution permit the restriction of all of those as well?

Mr. Stewart: –I think the the Constitution would have permitted Congress to apply the electioneering communication restrictions to the extent that they were otherwise constitutional under Wisconsin Right to Life. [Wisconsin Right to Life upheld the right of the government to limit certain ads aired within 60 days of a general election or 30 days of a primary if they were susceptible to no other reasonable interpretation than as a call to vote for or against a particular candidate. – Ed.]  Those could have been applied to additional media as well. …

Justice Alito: That’s pretty incredible. You think that if if a book was published, a campaign biography that was the functional equivalent of express advocacy, that could be banned?

Mr. Stewart: –I’m not saying it could be banned.  I’m saying that Congress could prohibit the use of corporate treasury funds and could require a corporation to publish it using its PAC.

Justice Alito: Well, most publishers are corporations.  And a a publisher that is a corporation could be prohibited from selling a book? … The government’s position is that the First Amendment allows the banning of a book if it’s published by a corporation?

Mr. Stewart: –Because the First Amendment refers both to freedom of speech and of the press, there would be a potential argument that media corporations, the institutional press, would have a greater First Amendment right.  That question is obviously not presented here.  The the other two things–

Justice Kennedy: Well, suppose it were an advocacy organization that had a book.  Your position is that under the Constitution, the advertising for this book or the sale for the book itself could be prohibited within the 60/30-day period [before an election or primary]?

Mr. Stewart: –If the book contained the functional equivalent of express advocacy. That is, if it was subject to no reasonable interpretation–

Justice Kennedy: And I suppose it could even – is it the Kindle where you can read a book? I take it that’s from a satellite.  So the existing statute would probably prohibit that under your view?

Mr. Stewart: –Well, the statute applies to cable, satellite, and broadcast communications. And the Court in McConnell has addressed the–

Justice Kennedy: Just to make it clear, it’s the government’s position that under the statute, if this Kindle device where you can read a book which is campaign advocacy, within the 60/30-day period, if it comes from a satellite, it’s under it can be prohibited under the Constitution and perhaps under this statute?

Mr. Stewart: –It it can’t be prohibited, but a corporation could be barred from using its general treasury funds to publish the book and could be required to use to raise funds to publish the book using its PAC.

… Chief Justice Roberts: If it’s a 500-page book, and at the end it says, and so vote for X, the government could ban that? …

Mr. Stewart: –Yes,

Filed Under: Blog

Hypocrisy and smears typical of the Campaign Legal Center

The Campaign Legal Center (CLC), a lobbying and litigation front-group for wealthy foundation supporters seeking to restrict the First Amendment rights of American citizens, attacked the Center for Competitive Politics (CCP) and the James Madison Center for Free Speech Friday in a memo to reporters about campaign finance litigation.

“A great number of the challenges in recent years have been filed by two well funded organizations that reveal little to nothing about their sources of their funding: The James Madison Center for Free Speech and the Center for Competitive Politics (CCP),” wrote Campaign Legal Center officials J. Gerald Hebert and Tara Malloy. “Former FEC Chairman Bradley Smith is the President of the Center for Competitive Politics, which also reveals nothing regarding its sources of funding.”

A “well funded organization” that “reveal[s] little to nothing about their sources of funding”? Sounds more like the Campaign Legal Center, a “shadowy group” that does not disclose its donors. At least CCP stands on principle: we fight for the right of nonprofits to keep their donors private because of potential retaliation from opponents and powerful government officials. What’s CLC’s excuse? CCP would even protect CLC’s right to anonymity, yet CLC fights to expose all nonprofits to more of these types of smears.

Filed Under: Press Releases

Ninth Circuit overturns ruling on Ariz. tax financing for candidates

A federal court of appeals erroneously ruled that “rescue funds,” a government sanction against private political speech included in Arizona’s system of taxpayer financed campaigns, does not violate the First Amendment.

“The Ninth Circuit’s decision today was wrong on the facts and the law,” said Bill Maurer in a statement released by the Institute for Justice (IJ). Mauer is the lead attorney in a legal challenge to the Arizona law brought by the IJ. “The Court failed to follow U.S. Supreme Court precedent and decades of cases holding that the government has no role in ‘leveling the playing field’ among political speakers.  As a result, we expect to appeal to the U.S. Supreme Court.”

IJ explained the state’s unconstitutional scheme: Arizona’s law “squelches the free speech of candidates who raise their own funds for their campaigns, by simply handing out funds to their opponents who participate in the taxpayer-funded scheme. For every dollar a privately funded candidate spends above a certain amount, the government hands taxpayer dollars over to his opponent to allow him to ‘match’ the spending-and thus the speech-of the privately funded candidate. The Act even matches funds spent by independent groups to support privately funded candidates. The Act thus punishes privately funded candidates and their supporters for spending money on speech.”

The Friday ruling essentially ignores a 2008 Supreme Court ruling, Davis v. Federal Election Commission, which held that government could not raise contribution limits for candidates facing wealthy opponents.

“This case is not about government enhancing speech,” said Steve Hoersting, the vice president of the Center for Competitive Politics and the author of an amicus brief in the case. “This is government putting its thumb on the scale: participate in ‘clean elections’ and the state will help you win your election—don’t and the state will not. That’s a dirty trick.”

Filed Under: External Relations Sub-Pages, Press Releases, Tax Financed Campaigns Press Release/In the News/Blog, Tax-Financing