The Government Should Have Less Power to Tax and Spend, Not More Power to Regulate Speech

Yesterday, The Hill asked various pundits and politicos to respond to the Supreme Court’s Citizens United ruling. The Big Question (as their periodic feature is called) was, “Will corporate money change campaigns?” You can read my response here.

Today, that same newspaper invited me to blog some further thoughts on the Citizens United decision. Here’s what I wrote:

Critics of yesterday’s decision say the sky of American democracy is falling. Supporters—including myself—say it’s a great day for the republic and a vindication of the freedom of speech. How can this be? Are nonprofit think tanks and advocacy groups like my own Cato Institute, the ACLU, the NRA, and many other odd bedfellows who supported Citizens United all in the pockets of Wall Street, Big Oil, insurance companies, and others that President Obama assails as corrupting our politics? Leaving aside the issue of why the politician who got more of his campaign funding from Goldman Sachs than any other source would be going after the very industries that most support him, the asymmetry in this debate rests on the myth that money is an evil in the political system, and that therefore the American people want so-called campaign finance reform to “clean up” government.

Money is no more an evil in politics than it is in life generally. Some people may not like mud-slinging attack ads, but some people also don’t like SUVs, the Super Bowl, the Jay Leno Show, and many other things that people spend money on—including donations to Cato, the ACLU, the NRA, etc. The problem with money in politics isn’t the money, but rather the politics. So long as the government is powerful enough to dole out tax breaks, subsidies, stimulus funds, regulations, earmarks, and a whole host of other goodies (and baddies), those that stand to benefit (and lose) will spend money on the political process. The way to get rid of this behavior and spending—which is constitutionally protected in a whole host of ways: freedom of speech, freedom of association, the right to petition the government for redress of grievances, etc.—is to reduce the government’s power to affect so many people’s lives and transform economic incentives for businesses big and small. Reduce the size of government and K Street will melt away.

Finally, as my colleague Roger Pilon points out, 26 states have minimal campaign finance laws, with no evidence that those states have more corruption—or a more unequal “political playing field”—than states that strictly regulate. And that’s because the real reason we have campaign finance regulations—the dirty little secret behind the whole convoluted regime—is that it’s an incumbency protection racket. From the so-called “millionaire’s amendment” that the Supreme Court struck down in 2008 to the limits on corporate and union advocacy that the Court struck down yesterday, McCain-Feingold and all other campaign finance legislation—passed by self-interested politicians—is designed to make it harder for challengers. After-all, incumbents have the benefit of name recognition, taxpayer-funded travel to and around their home districts and states, taxpayer-funded campaign literature disguised as informational flyers touting all the great things a congressman is doing, and a host of other advantages.

The First Amendment is not a “loophole” for big business and those of us who want freer speech—without bureaucrats deciding who gets to speak when and how much—are not corporate shills. Free speech is the very foundation of our democracy, and we are stronger today for the Citizens United decision.

CP: Cato's blog

Supreme Court Ruling on Hillary Movie Heralds Freer Speech for All of Us

Today the Supreme Court struck a major blow for free speech by correctly holding that government cannot try to “level the political playing field” by banning corporations from making independent campaign expenditures on films, books, or even campaign signs.

As Justice Kennedy said in announcing the opinion, “if the First Amendment has any force, it prohibits jailing citizens for engaging in political speech.”

While the Court has long upheld campaign finance regulations as a way to prevent corruption in elections, it has also repeated that equalizing speech is never a valid government interest.
After all, to make campaign spending equal, the government would have to prevent some people or groups from spending less than they wished. That is directly contrary to protecting speech from government restraint, which is ultimately the heart of American conceptions about the freedom of speech.

No case demonstrates this idea better than Citizens United, where a nonprofit corporation made no donations to candidates but rather spent money to spread its ideas about Hillary Clinton independent of the campaigns of primary opponent Barack Obama, potential general election opponent John McCain, or any other candidates. Where is the “corruption” if the campaign(s) being supported have no knowledge, let alone control over what independent actors do? — be they one person, two people, or a large group?

Today’s ruling may well lead to more corporate and union election spending, but none of this money will go directly to candidates — so there is no possible corruption or even “appearance of corruption.” It will go instead to spreading information about candidates and issues. Such increases in spending should be welcome because studies have shown that more spending — more political communication — leads to better-informed voters.

In short, the Citizens United decision has strengthened both the First Amendment and American democracy.

CP: Cato's blog

Adding Free Speech Insult to Property Rights Injury

My friend and former law firm colleague Mark Sigmon — who co-authored Cato’s brief in the New Haven firefighters case — is representing a man facing daily fines for displaying a large political message on his house.

David Bowden was upset about the way he had been treated by the town of Cary, NC, regarding damage to his property during a road-widening project. This past July, Bowden hired someone to paint “Screwed By The Town of Cary” on the front of his house. A few weeks ago, the town gave Bowden seven days to remove the sign or face daily fines — $100 for the first day, $250 for the second, $500 for each subsequent day – for violating a local sign ordinance. That’s when Mark, who’s affiliated with the ACLU of North Carolina, filed a lawsuit on Bowden’s behalf. The complaint alleges that the town violated Bowden’s rights to free speech and to petition his government under the First Amendment and similar provisions of North Carolina’s constitution.

While the facts of this case are a bit colorful – and I’m sure Mark is enjoying the notoriety (here’s his appearance on Fox & Friends) — this is no laughing matter. The town appears to be compounding the damage it did to a resident’s property rights by now violating his rights to speech and political expression. At least now the town has agreed to refrain from enforcing its ordinance and levying fines until the case is resolved — which is essentially a capitulation to Bowden’s request for a preliminary injunction.

For more news on this story go here, here, and here. And you can read the ACLU’s press release and access all the legal pleadings in the case here.

CP: Cato's blog

The Right to Speak in Non-Government-Approved Ways

School officials denied student Pete Palmer the right to wear a shirt supporting John Edwards’s presidential campaign at his Dallas-area high school. They cited the district’s dress code, which prohibited messages on student clothing except for those that supported school activities or district-approved organizations, clubs or teams.

The U.S. Court of Appeals for the Fifth Circuit agreed with the school district that this was a reasonable “time, place and manner” speech restriction. Applying the test from United States v. O’Brien, the court found that the dress code was content- and viewpoint-neutral, and served an important governmental purpose. Palmer now seeks Supreme Court review, citing seemingly contradictory precedents from the Second and Third Circuits and arguing that the regulation here flies in the face of the protection afforded to student speech by the famous case of Tinker v. Des Moines Independent Community School District.

Cato, joined by the Institute for Justice, the Becket Fund for Religious Liberty, the Christian Legal Society, and the National Association of Evangelicals, filed an amicus brief supporting Palmer’s petition and urging the continued use of Tinker. We argue that the Court should clarify its jurisprudence in this area to stop schools from applying broad restrictions in an attempt to avoid controversy and debate—and thereby threaten the very political and religious speech at the First Amendment’s core.

To prevent the chilling of student speech, the Court should solidify Tinker’s central tenet, reaffirming that so long as speech doesn’t “materially and substantially disrupt” the educational process, students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

The case is Palmer v. Waxahachie Independent School District. The Court will be deciding early in 2010 whether to hear it.

CP: Cato's blog