Contributions & Limits

There was a fascinating article in Thursday’s Washington Post concerning the scandal that has erupted in the United Kingdom over the practice of hacking into private voicemails by the now-shuttered News of the World.

Fury at Murdoch reflects pent-up anger of intimidated politicians

The phone-hacking scandal that has driven Rupert Murdoch and his empire into retreat and gripped audiences on both sides of the Atlantic is playing out against the backdrop of a combustible political-media culture vastly different from that in the United States…

In Britain, money plays a smaller role in politics than it does in the United States, and politicians have few ways to communicate effectively with the public outside the media filter. Television advertising plays no significant role in campaigns; for the most part, it is not allowed.

An American politician who feels aggrieved by the media can buy television spots to answer them. His British counterparts have no such option. Elected officials must depend on the good graces of newspapers for favorable coverage…

This is something that we have pointed out time and time again, that restricting the ability of candidates (and private citizens either individually or through organizations) to speak to the public necessarily enhances the voices of others who are not restricted, primarily the media.

Surprisingly, and in a very welcome development, writers at two left-leaning media outlets who have in the past generally lined up with the so-called campaign finance ‘reform’ community have recognized the peril of limits on money in politics.

Earlier this week I noted that self-styled campaign finance and government ‘reform’ group Common Cause had filed a complaint with the IRS demanding that the American Legislative Exchange Council (ALEC) be stripped of its tax-exempt status as a 501(c)3 organization. The complaint is unlikely to get far as it’s based on a frivolous interpretation of laws defining lobbying activity, and is simply the latest effort by Common Cause and their ‘reform’ allies to harass ideological opponents.

What I didn’t mention was that it was becoming evident that the Common Cause complaint was part of a well-coordinated campaign against ALEC by the ‘reform’ community and others who simply oppose ALEC’s ideological agenda, which favors limited government, free markets, and conservative ideas. A few days before the Common Cause complaint, the liberal group Center for Media and Democracy launched a campaign against ALEC called ALEC Exposed.

Among other things, the project apparently involved obtaining and putting online copies of ALEC’s model legislation. As the web site of ALEC Exposed states:

On July 13, 2011, the Center for Media and Democracy unveiled this trove of over 800 “model” bills and resolutions secretly voted on by corporations and politicians through the American Legislative Exchange Council (ALEC). These bills reveal the corporate collaboration reshaping our democracy, state by state…

The Center obtained copies of the bills after one of the thousands of people with access shared them, and a whistleblower provided a copy to the Center…

Please join us in helping to expose ALEC, its corporations and politicians, and how money has corrupted the democratic process.

The term “whistleblower” is kind of interesting, given that it’s usually used to describe someone who reveals illegal activity, and as yet it’s not illegal to discuss and advocate for conservative ideas, or any other political ideas for that matter. Our system of government is in fact based on the idea that we are free to communicate with our elected officials, even if we’re advocating ideas that Common Cause doesn’t much agree with.

The most recent element of the attack on ALEC seems to be a report by another member of the ‘reform’ community, the National Institute on Money in State Politics (NIMSP). One of the more obscure groups in the vast constellation of ‘reform’ groups, NIMSP compiles and makes accessible to the public campaign finance disclosure data from all 50 states.

And so on Wednesday it was NIMSP’s turn to take a whack at ALEC:

On Thursday the FEC took a cautious approach to both its own precedent and judicial precedent, and turned down an Advisory Opinion Request by Majority PAC and House Majority PAC (AOR 2011-12) to have federal officeholders solicit unlimited funds for these independent expenditure PACs, sometimes called, most unhelpfully, “SuperPACs.” It’s a short term win for the so-called reform community, but a longer term measure of the progress made for free speech in the last 6 years, and a likely indictaor of future progress to come.

Justice Elena Kagan’s dissent in Arizona Free Enterprise Club (AKA McComish) yesterday is being praised by the so-called campaign finance ‘reform’ community today. The New York Times, for example, writes:

Justice Elena Kagan, writing in dissent, dissects the court’s willful misunderstanding of the result. Rather than a restriction on speech, she says, the trigger mechanism is a subsidy with the opposite effect: “It subsidizes and produces more political speech.” Those challenging the law, she wrote, demanded – and have now won – the right to “quash others’ speech” so they could have “the field to themselves.” She explained that the matching funds program – unlike a lump sum grant to candidates – sensibly adjusted the amount disbursed so that it was neither too little money to attract candidates nor too large a drain on public coffers.

There are a lot of things wrong with Justice Kagan’s dissent, but that’s the subject of a later post. For now, I just want to focus on one of the more interesting things she wrote, which might give ‘reformers’ pause before celebrating this dissent any further.

Amid the hysterics concerning Judge Cacheris’s ruling that banning limited corporate contributions is unconstitutional – a ray of sense. Northern Virginia Lawyer has an excellent post: “The educated politico’s guide to U.S. v. Danielczyk: Or rather how to pay attention to a Constitutional campaign finance lawsuit.”

The post makes some excellent points, and serves as a sober reminder that litigation is a considered, careful process. My favorite quote: “Vocal opposition from the media, although widespread, has been focused heavily on the political consequences of the ruling rather than the legal underpinnings or consequences of the ruling.”

Also note that Judge Cacheris has gone out of his way to ensure his decision is subject to appellate scrutiny, even postponing trial to eliminate any question as to the government appeal’s ripeness.

The post is excellent and speaks for itself. But as part of the wider debate over campaign finance laws and the First Amendment, it shows how federal courts are faithful to their traditions of care, procedural fairness, and humility in reviewing these sorts of constitutional challenges. The contrast with the overblown and highly-political rhetoric characterizing opposition to the Danielczyk ruling could not be clearer.