The Backwards First Amendment

"Why is it necessary to have the senators' names in there?" asked U.S. District Judge Colleen Kollar-Kotelly.

The above is the Boston Globe reporting on oral argument in Christian Civic League v. Federal Election Commission.

So this is what the First Amendment has come to: "Why do you have to say that?" I don't have a transcript of the hearing, but nobody has reported any of the three judges hearing the case asking the Feds why the Civic League shouldn't be able to have the Senators names in there.

To back up a bit, what the Civic League is asking is to run a radio ad that says, "Unfortunately, your senators voted against the Marriage Protection Amendment two years ago. Please call Sens. Snowe and Collins immediately and urge them to support the Marriage Protection Amendment when it comes to a vote in early June." Under the McCain-Feingold law, which both of Maine's Senators, Olympia Snowe and Susan Collins, supported, this ad is illegal because Christian Civic League is an incorporated entity. This means no broadcast ads that even mention a candidate within 30 days of a primary election or 60 days of a general election. The reason, in theory, is that such ads might affect an election. That hardly seems like a legit reason for limiting them, but it is the law, upheld as constitutional by your United States Supreme Court. Yet here, Senator Collins is not up for re-election until 2008; Senator Snowe is up for re-election this year, with a primary in early June. But it's worth noting that she has no opponent in the primary. None. Not even token opposition or a write-in opponent. Still, the Civic League can't even mention her in an ad as the Senate prepares to vote. Better that the voters of Maine just stay ignorant. And according to Judge Kollar-Kotelly, the onus is on the Civic League to justify the need for its speech - the exact opposite of how the First Amendment ought to work.

There is, of course, an easy answer to Kollar-Kotelly. Surveys show that over half of Americans cannot name their U.S. Senators. So just saying, "Call your Senators" doesn't give most Americans any sense of whom to call, nor what those senators think. So if you want the ad to be effective, you need to tell people specifically what to do. But the bigger point, of course, is that the Civic League shouldn't have to put up with this malarky.

According to the Globe, "The three judges who heard the arguments expressed strong doubts that the ad could be broadcast as worded and still comply with the Bipartisan Campaign Reform Act of 2002 [McCain-Feingold]." Fortunately (if one can use that term in such a ridiculous case), the Federal Election Commission seems determined to take an already outrageous law to ridiculous extremes, and so may give the judges no choice but to rule in favor of the Civic League. According to the Commission, the ad would be illegal even if it didn't name the Senators. The Commission's attorneys argued that even saying "call your Senators," without naming them, is illegal under the law. Even Kollar-Kotelly ought to be able to figure out that you have to put that in the message, and that to rule in favor of the FEC means that it will be extremely difficult for voters to learn about pending legislation in Congress and what they can do to try to influence the outcome.

But it seems to this Centrist that we've got the First Amendment backwards when the judge can lean over the bench and challenge the litigant, essentially saying, "why should I let you say that?"

Getting the 501(c)(4)s

The speech regulators haven't even finished getting the 527s before turning their sights on the 501(c)(4) groups, such as the NRA and the Sierra Club.

Today's Philadelphia Inquirer includes this from reform guru Fred Wertheimer about 501(c)(4) groups:

"This is an abuse unfolding before our eyes," said Fred Wertheimer, president of Democracy 21, which advocates campaign finance reforms.

So much for those who assured us that 527 reform would not touch other groups.

Corruption and Campaign Finance

Here is a statement by the Campaign Legal Center on this week's House vote approving radical new limits on independent speech, in the form of "527" groups. Note the money quote:

During the 2004 elections, a number of 527 organizations spent millions of dollars in soft money on attack ads and partisan voter activities. Because of the Federal Election Commission's refusal to enact common sense regulations, these 527 organizations operate with impunity - creating enormous inequities as candidates, political parties and registered PACs play by one set of rules and the 527 groups play by another. By their own identification, 527 groups are in the business of trying to influence the outcome of elections.

Notice there is no mention at all of "corruption," which remains, even in the bastardized form of McConnell v. FEC, the only basis for regulation.

That's the money quote. Here's the humor quote:

We urge the Senate to pass the 527 legislation, to reject any "poison pill" amendments that would undermine existing campaign finance laws, and to put good public policy before short-term partisan interest.

Of course, this bill's only chance of passage in the Senate, and the only reason it passed in the House, is the Republican calculation that this bill is in their short term partisan interest.

The Media Just Can't Get Campaign Finance Reform Right

Here's an interesting article from Jonathan Chait at the Los Angeles Times. Hat tip to Richard Hasen's Election Law Blog. Chait skewers Republicans for the current crusade against 527 organizations. But the article also displays the inability of reporters such as Chiat to capture the nuance of campaign finance law, and his own bias from the left. For example, Chait writes:

WHERE ARE ALL the conservative defenders of unlimited political donations
hiding these days? For years they made a crusade of opposing the McCain-Feingold
law, which banned unlimited donations to political parties. For years you
couldn't read the papers for more than a couple of days without stumbling across
some conservative enraged at this draconian limitation on political speech. But
now that their side is pushing a ban that's way more draconian, the
conservatives — with their tender free-speech sensibilities — are nowhere to be
found.

Well, not entirely. See here and here. It's true the big-time GOP brass is on board. But we should not confuse GOP partisans with Conservatives, either. I've not seen anything from any of the conservative grassroots groups supporting this - this appears to be purely a partisan matter for GOP operatives. And as any ideologue, left or right, will tell you, the interests of "liberals" often differs from that of "Democrats," and the interests of "conservatives" from those of "Republicans." There are issue people, and there are party people.

Chait goes on:

These party donations, known as "soft money," grew into an enormous loophole that rendered the restrictions almost meaningless. If candidate Smith wanted to solicit, say, a $100,000 donation, all he had to do was tell his donor to give the money to the party. The party could then turn around and plow the money back into Smith's race.

Again, not exactly. An earmarked contribution of that sort was illegal. It was true that a maxed out donor could give to the party, in the expectation that the party would support the campaign, but that is different from specific orders or promises - and frankly, it is pretty much the same difference that Chait seems to think is quite significant when we talk about 527s - see below.

Closing the soft-money loophole left those who wanted to bankroll politics big time with one alternative: ... Independent groups — called 527s, after the section in the tax code that covers them — raised unlimited sums and bought TV ads on behalf of their preferred candidates.

This is broadly accurate, but obscures some important facts. Soft money, whether raised by parties or outside groups, could never be used for ads expressly advocating the election or defeat of a candidate. Although the reform lobby has long claimed no difference, recent research by Dorie Apollonio of the University of California and Margaret Carne of Rhodes College suggests that there is a considerable difference - and the fact that parties always preferred to raise unrestricted hard money is further evidence of that fact.

The conservative media, once so outraged over the soft-money ban, has mustered barely a word of protest.

This is not true. See herefor the Wall Street Journal(subscription required), here. Remember, there was much conservative media opposed to McCain-Feingold. There was the Wall Street Journal, and ... ? We might note that conversely, the liberal media, once so outraged over soft money, has mustered barely a word of encouragement or congratulations to the GOP for their conversion, or condemnation of the Democrats for blocking this "reform."

Back to Chait:

Indeed, 527s are clearly less corrupting than soft money. The old soft-money system let millionaires exert huge influence over the political system, and it also encouraged crooked quid pro quo trades — i.e., "I'll give your campaign a $100,000 donation if you promise to snuff out a regulation I don't like."

First, note how Chait now makes the argument he rejected earlier - that soft money is less corrupting. Well, OK, that' not how he makes it. But 527 giving used to be called another form of soft money. How is it less corrupting than soft money given to parties? Second, his example is simply wrong - the trade he suggest was and is clearly illegal: 1) it is probably illegal to make such an explicit deal in any circumstance, under bribery laws; and 2) it was, long before McCain-Feingold, illegal to give $100,000 to "your campaign." This is again indicative of the type of sloppiness that journalists have so long brought to reporting on this topic.

The 527s still give millionaires disproportionate influence. But they make the quid pro quo trade much harder to pull off; 527 groups can't coordinate their activities with candidates.

Yes, but neither can parties using soft money. So is the trade really harder? Probably it is easier. A 527 is likely to be a special interest group with a narrow agenda. A political party has a broad agenda, and can be hurt if it tilts too far in favor of a particular special interest. A single issue group is more likely to request the quid pro quo trade Chait suggests. And I really can't see how it is any harder to "pull off."

We shouldn't be too hard on Chait. This column probably shows a better understanding of the law than most, and it is admitedly hard, in the context of popular journalism, to capture a lot of nuance. But I think it also reveals what years of propaganda and misleading information from the reform community has accomplished. I doubt that Chait really knows or understands any of the points I note above.