Feed on Posts or Comments 23 January 2018

First things . . . &Politics Richard Falknor on 26 Jan 2010 10:49 am

“Citizens United”: Crucial for Grass Roots & Tea Partiers


. . .[T]he FEC has created a regime that allows it to select what political speech is safe for public consumption by applying ambiguous tests. If parties want to avoid litigation and the possibility of civil and criminal penalties, they must either refrain from speaking or ask the FEC to issue an advisory opinion approving of the political speech in question. Government officials pore over each word of a text to see if, in their judgment, it accords with the 11-factor test they have promulgated. This is an unprecedented governmental intervention into the realm of speech.” – – Justice Anthony Kennedy (2010)

. . . . .

The federal election campaign laws, which are already (as today’s opinions show) so voluminous, so detailed, so complex, that no ordinary citizen dare run for office, or even contribute a significant sum, without hiring an expert advisor in the field, can be expected to grow more voluminous, more detailed, and more complex in the years to come–and always, always, with the objective of reducing the excessive amount of speech.” – – Justice Antonin Scalia (2003)  (Underscoring Forum’s throughout.)

Last Thursday’s Supreme Court holding in Citizens United v. Federal Election Commission is a step forward for grass-roots organizations with limited funds, and a check on unaccountable incumbency for members of both parties. Here is a birds-eye view of the Court’s action by National Review on Line’s (NRO) Ed Whelan.

The Weekly Standard’s Mary Katharine Ham guides us to Politico’s Ben Smith “Ginsberg et al.: A drastically altered landscape”.  Smith declares – –

“Leading Republican election lawyer Ben Ginsberg and four colleagues at Patton Boggs are circulating a memo today with the clearest outline I’ve seen of the consequences of a ruling that, they write, will ‘drastically alter the landscape for candidates and political parties.'”

Here are two extracts from the January 21, 2010 Ginsberg memorandum – –

501c4s and 501c6s: Likely to emerge as the biggest players in the 2010 and 2012 elections, ideological groups and trade associations also have been granted the ability to engage much more robustly in the political process. Meager disclosure requirements of their donors will make them a favorite repository of funds for independent expenditures.

. . . . .

Vendors: The opinion should drastically increase the number of voices singing in the First Amendment choir. This is very good news for those who assist those efforts.
(Underscoring Forum’s throughout.)

Readers can view the entire memorandum here as it appeared in Ben Smith’s Politico article.

Last week in our own post “High Court Boosts Free Speech, Curtails McCain-Feingold,” we drew readers’ attention to Bradley Smith’s “The Myth of Campaign Finance Reform” here.

If there is a “magic bullet” to deconstruct so-called campaign-finance-reform schemes, former Federal Elections Commission (FEC) chief Smith has invented it in his National Affairs post and his earlier writings – –

“Considered in detail, each step in the effort to limit campaign spending turns out to advantage the party that sought it. If its own numbers are insufficient to pass the legislation (as was the case with McCain-­Feingold in 2002), then it seeks to broaden its base by adding incumbent-­protection sweeteners to attract enough members of the opposing party to create a bipartisan majority. John Samples notes that McCain-­Feingold drew most of its support from Democrats — who, he argues, saw long-term electoral disaster in the growing Republican fundraising edge, which was increasing after Republicans won the presidency in 2000. But to gain a legislative majority, the minority Democrats had to gain Republican votes; Samples finds that the Republicans who supported McCain-Feingold were, by and large, those most in danger of losing their seats. For them, the incumbent-benefit protections of the law made it irresistible.

Samples makes the Madisonian observation that ‘politicians use political power to further their own goals rather than the public ­interest….Campaign finance laws might be, in other words, a form of ­corruption.’ Noting that ‘scholars date the largest decline in congressional electoral competition from 1970’ and that the Federal Election ­Campaign Act — the foundation of modern campaign-finance law — was passed in 1972, Samples points out that ‘the decline in ­electoral competition and the new era of campaign finance regulation are virtually conterminous.’ ”
(Underscoring Forum’s throughout.)

When chairman Smith resigned from the FEC in 2005, his letter doing so to then president Bush warned that – –

” . . . [T]he trend toward greater control of politicking–online and offline–may eventually have grave consequences. ‘Political activity is more heavily regulated than at any time in our nation’s history,’ he wrote. ‘For example, in accordance with the law, during my tenure the FEC has assessed penalties against parents for contributing too much to the campaigns of children; against children for contributing to the campaigns of parents; and against husbands for contributing to campaigns of their wives,’ he wrote. ‘We have required citizens to respond to complaints for the display of homemade signs supporting a candidate. These are just a few examples: The commission’s regulations take up nearly 400 pages of fine print.'”

If there is any doubt that incumbency protection motivated many of the supporters of McCain-Feingold (the Bipartisan Campaign Reform Act), Justice Scalia gave us chapter and verse in his dissent in McConnell of December 2003 – –

 But let us not be deceived. While the Government’s briefs and arguments before this Court focused on the horrible ‘appearance of corruption,’ the most passionate floor statements during the debates on this legislation pertained to so-called attack ads, which the Constitution surely protects, but which Members of Congress analogized to ‘crack cocaine,’ 144 Cong. Rec. S868 (Feb. 24, 1998) (remarks of Sen. Daschle), ‘drive-by shooting[s],’ id., at S879 (remarks of Sen. Durbin), and ‘air pollution,’ 143 Cong. Rec. 20505 (1997) (remarks of Sen. Dorgan). There is good reason to believe that the ending of negative campaign ads was the principal attraction of the legislation. A Senate sponsor said, ‘I hope that we will not allow our attention to be distracted from the real issues at hand–how to raise the tenor of the debate in our elections and give people real choices. No one benefits from negative ads. They don’t aid our Nation’s political dialog.’ Id., at 20521—20522 (remarks of Sen. McCain).”      (Underscoring Forum’s throughout.)

Readers may see who in the Congress voted in 2002 for this free-speech-restricting act here and here.

In our view, the faith-based groups (along with many other voices on the center-right) erred in not going to the mat with president George W. Bush over his March 2002 signing of the McCain-Feingold legislation.  Neither pro-life nor pro-free-market nor immigration-enforcement nor defense advocates can do their jobs if their political-speech freedoms are continually curtailed. We all finally ended up having to do our part, spectacularly, more than three years later in October 2005, fighting the president’s nomination of Harriet Miers to the Supreme Court. (The force of the Miers pushback arose from a culmination of conservative frustrations with the Bush Administration.)  Presumably by now we have all learned a great deal from the current and the previous administrations.

Grass-roots conservatives, Tea Partiers, Ralliers, and other center-right activists need to keep tracking and exposing the governmental and institutional efforts to limit free political speech. As Mark Levin writes, [I]t took the Statist nearly eighty years to get here, and it will take the Conservative at least as long to change the nation’s direction.


“President Wrong on Citizens United Case ‘This is either blithering ignorance of the law, or demagoguery of the worst kind.'”

. . . . .

“What Citizens United actually does is empower small and midsize corporations—and every incorporated mom-and-pop falafel joint, local firefighters’ union, and environmental group—to make its voice heard in campaigns without hiring an army of lawyers or asking the FEC how it may speak.”



Trackback This Post | Subscribe to the comments through RSS Feed

Leave a Reply

You must be logged in to post a comment.