The U.S. Supreme Court has agreed to hear Wisconsin Right to Life's challenge to application of McCain-Feingold to genuine issue ads run "too close" to a federal election or primary. WRTL sought to run ads urging Senators Kohl and Feingold to vote on the President's judicial nominees. McCain-Feingold prevents the use of the organization's general treasury funds for ads mentioning a candidate for federal office within thirty days of a primary or sixty days of a general election (if it is broadcast to an audience with more than a specified number of folks where the candidate is running).
Writing at the Election Law Blog, Prof. Rick Hasen thinks that this may begin to roll back the McCain-Feingold regime. He thinks this is a bad thing. I don't.
Campaign finance regulation that goes beyond disclosure to the placing limits on the extent to which persons and groups can communicate about an election or about the issues at a time when both candidates and the public are paying attention is a rather significant restriction on freedom of speech. I can't get past that.
I understand the argument that "spending money" is not speech, but this case is not about contributions to a candidate. It is about the ability of an advocacy group to communicate with the public at an appropriate time. If all the first amendment protects is our ability to stand on a tree stump and speak to whoever is within earshot, it doesn't protect much.
The tragedy of McCain-Feingold's restriction on speech is compounded by the fact that it has done exactly nothing to limit the supposedly corrupting influence of money that is spent on politics. The need to raise money is just as overwhelming and people with a lot of money to spend are just as important.
We've now had about thirty years experience with campaign finance reform and, while I think disclosure is important, limits on contributions and expenditures have done nothing to make our politics less corrupt or our candidates less driven by the need for cash. To the contrary, "reform" has made it harder (and much less attractive) for candidates without personal resources or who are not incumbents to run. Trying to raise enough money to run in the increments permitted by campaign finance laws is always extremely difficult and often offputting. There are lots of good people who won't run for public office because they do not want to spend a year of their lives begging for money.
Some folks, take Fighting Ed Garvey as an example, want public financing. This has a superficial appeal, but I have never heard anyone explain how it could be implemented without doing serious damage to the political process. Would you make it illegal for a candidate to spend more? Would you prohibit all independent expenditures? If you don't, the purpose of public financing is likely to be subverted. If you do (and if the courts permit it), you have undermined the first amendment in some very frightening ways.
Frightening, in particular, because we won't be able to give public money to everyone. The candidate who once came out of nowhere will now stay there.
Maybe there is a way to do it, but I have yet to hear it.
NOTE: An earlier version of this post did not make clear that the prohibition was on ads funded through general treasury funds of a corporation and union.
9 comments:
"Campaign finance regulation that goes beyond disclosure to the placing limits on the extent to which persons and groups can communicate about an election or about the issues at a time when both candidates and the public are paying attention is a rather significant restriction on freedom of speech. I can't get past that."
Correct me if I'm wrong, but doesn't McCain Feingold permit such advertising if the group discloses who paid for the ad? The problem with WRTL (and there are many problems with that particular group of hypocrites!) is that it is unwilling to disclose the names of the corporate contributors who pay for their ads.
The principal behind this provision in the law is this: If you want to influence an election, you have to disclose who you are. What's wrong with that? It isn't the speech which is prohibited, it's the nondisclosure.
It does require disclosure but it goes beyond that. It prohibits such advertising out of the organization's general treasury funds. WRTL could run ads, but only if it formed a PAC and the money was raised subject to the restrictions on PAC contributions.
WRTL can speak, therefore,only if it pays for the ads with money raised in a highly regulated and restricted manner.
Bingo, Rick -- WRTL can speak, but only if it discloses who gave it the money used to do so! What in the name of all that is right and good is wrong with that, for God's sake?
The purpose of the law is to let the general public know who is speaking. Why do WRTL and other groups want to change this law? Because they don't want anyone to know who put up the $$$!
And what's wrong with requiring the money used for such advertising be "raised subject to the restrictions on PAC contributions"? Money which is "raised subject to PAC restrictions" comes from live human beings and not corporations. Rick, under Wisconsin law and under federal law we do not let the large banks and utilities pay for political campaigns. We don't disenfranchise corporate officials -- we let them give their own money to candidates and we let them do it through PACS. But we do not let a corporation "buy" an election. Exactly what is wrong with that concept, please?
I don't think you are winning any debate points with your arguments. You are simply exposing WRTL for what it really is.
I don't have much respect for the biddies who run WRTL, based on the goofy positions they take on such issues as embryonic stem cell research. This is just one more area where their reason and logic is off plumb as well.
My guess is that the problem is not that WRTL's money comes from big corporations. On its issues, big business money is on the other side. The problem, from my perspective, is that you have to raise the money in a way that is tantamount to using a teaspoon to fill a barrel. That's a significant restriction on speech.
As for disclosure of its individual donors, the traditional civil liberties position has been that advocacy organizations have a interest in protecting the privacy of their members. If WRTL runs an ad, you know that it comes from a particular perspective, i.e., people who believe in the stuff that WRTL stands for. Whether it adds much to know that, say, Esenberg gave them $500.00 is unclear. But, in any event, the problem is not just disclosure.
"As for disclosure of its individual donors, the traditional civil liberties position has been that advocacy organizations have a interest in protecting the privacy of their members."
An advocacy organization should be able to protect the privacy of its members, and WRTL can do so -- unless and until it attempts to influence an election. When you attempt to influence an election, you give up a portion of your civil liberties, at least to the extent that your contribution rises above the threshhold above which name identification is required.
Let's be honest, Rick, this isn't about whether or not your $500 personal contribution should be disclosed. It's about whether CORPORATE contributions should be disclosed.
Let's take the recent election for Governor and Attorney General. Millions upon millions of dollars were spent on so-called "issue" ads (you know, the ones without the direct advocacy, where no instructions are given on how to vote). Virtally all of the money being spent here comes from corporations. While it is unlikely that corporate money spent on these ads determined which candidate was elected Governor (since the two major party candidates each had issue ad "sugar daddies"), it's a virtualy certainty that corporate money "bought" the state its new Attorney General (who is a fine young man, by the way).
It will also be interesting to see how the Elections Board investigation of All Children Matter shakes out. All Children Mattter is based in Michigan and is funded by the Amway founder, who spent $40+ million of his own money losing his race for Governor in Michigan.
All Children Matter may have violated Wisconsin law by expresslg advocating votes for the Republican candidate in the state's only open Senate seat. It also appears that thr group used the Chvala playbook by shifting piles of corporate money from state to state before sending it into battle -- perhaps illegally -- here in Wisconsin. It was this pattern of behavior which resulted in the conviction of Chuckie Chvala, the disgraced former Democrat Senate Majority Leader who spend time in jail for this particular sin.
Rick, you first said, "Campaign finance regulation that goes beyond disclosure to the placing limits on the extent to which persons and groups can communicate about an election or about the issues at a time when both candidates and the public are paying attention is a rather significant restriction on freedom of speech. I can't get past that."
Then you said,
"As for disclosure of its individual donors, the traditional civil liberties position has been that advocacy organizations have a interest in protecting the privacy of their members."
Are you for requiring disclosure or opposed to it?
Me, I want to know who is trying to influence an election. Elections are public affairs that have an effect on my life, hence the term "public". If you're going to engage in public discourse, then you have to let people know who you are.
I think there is a difference between requiring a candidate to disclose his or her donors and requiring an advocacy organization to refrain from running issue ads that mention a candidate during an election unless it, essentially, complies with the rules for contributions to candidates.
In fairness, however, I am less concerned about disclosure than limits on fundraising or on the use of general treasury funds.
Rick,
You said with regard to public financing of campaigns: "Would you make it illegal for a candidate to spend more? Would you prohibit all independent expenditures?"
These are good questions; thankfully there are some time-tested answers.
Successful public financing systems are currently operating in 28 states, most notably Arizona and Maine.
The key to answering your first question is noting that all these systems are voluntary, i.e. candidates can choose to opt in or out. Only if they choose to accept public funds are they oblidged to abide by the spending limits.
With regard to Independent Expenditures (IE's) the answer is what's typically called a "matching funds" provision. For instance, if a publicly funded candidate is attacked by an IE group, that candidate will be given additional matching funds (up to a prescibed cap) so they can respond. This does two things: it helps keep the playing field level, and it tends to discourage IE's from running their attack ads because they know that every dollar they spend will trigger matching funds for their opponent. No one is prohibited from speaking; but no one gets to take a free shot anymore either. (BTW, such a matching funds provision is one of the key things missing in the current public financing system for presidential elections, and one of the key things needed to resurrect it.)
These voluntary systems have been working quite well in Arizona and Maine for close to a decade, and they've passed constitutional muster several times at both the state and federal levels (eg. US Supreme Court, Buckley v Valeo, 1976 and Randall v Sorrell, 2006).
For additional bipartisan info see www.just6dollars.org and www.publicampaign.org.
Craig
Coincidentally, today's New York Times ran an obituary on public funding. While the article talks about public funding on the presidential level, the problem applies to any voluntary program in which their is a greater private supply of political dollars than public financing can supply. The only way around that is to make public financing mandatory and that would not pass constitutional muster.
The problem is hard to solve by raising the amount of money available to candidates. First, you would have to go to general tax revenues because "check offs" don't raise much money. Apart from the justice in that, how would you decide who gets public funds? If you keep the bar low, then you are going to have to keep the grants low as well and the likelihood that private dollars will swamp public is increased. If you keep the bar high, you're creating a whole new set of problems.
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