Archive | Restrictions on Campaign Contrbs. and Expenses

Congressman Proposes Amendment to Strip Most Newspapers, Churches, Nonprofits, and Other Corporations of All Constitutional Rights

That’s the People’s Rights Amendment, introduced by Congressman Jim McGovern:

Section 1. We the people who ordain and establish this Constitution intend the rights protected by this Constitution to be the rights of natural persons.

Section 2. People, person, or persons as used in this Constitution does not include corporations, limited liability companies or other corporate entities established by the laws of any state, the United States, or any foreign state, and such corporate entities are subject to such regulation as the people, through their elected state and federal representatives, deem reasonable and are otherwise consistent with the powers of Congress and the States under this Constitution.

Section 3. Nothing contained herein shall be construed to limit the people’s rights of freedom of speech, freedom of the press, free exercise of religion, and such other rights of the people, which rights are inalienable.

So just as Congress could therefore ban the speech of nonmedia business corporations, it could ban publications by corporate-run newspapers and magazines — which I think includes nearly all such newspapers and magazines in the country (and for good reason, since organizing a major publications as a partnership or sole proprietorship would make it much harder for it to get investors and to operate). Nor does this proposal leave room for the possibility, in my view dubious, that the Free Press Clause would protect newspapers organized by corporations but not other corporations that want to use mass communications technology. Section 3 makes clear that the preservation of the “freedom of the press” applies only to “the people,” and section 2 expressly provides that corporations aren’t protected as “the people.”

Congress could also ban the speech and religious practice of most churches, which are generally organized as corporation. It could ban the speech of nonprofit organizations [...]

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Russian Authorities Ban Toy Protest Because Toys “Are Not Even People”

Officials in the Siberian city of Barnaul recently banned an anti-government protest using toys on the specious justification that “toys, especially imported toys, are not only not citizens of Russia but they are not even people” [HT: Julie Ershadi]:

There hadn’t been many – indeed any – rallies like it before in Russia. Last month saw dozens of toys, from teddy bears to Lego figurines, standing out in the snow of a Siberian city with banners complaining about corruption and electoral malpractice.

At the time, Russian authorities in Barnaul declared the protest “an unsanctioned public event”.

Now a petition to hold another protest featuring 100 Kinder Surprise toys, 100 Lego people, 20 model soldiers, 15 soft toys and 10 toy cars has been rejected because the toys have been deemed not to be “citizens of Russia”.

“As you understand, toys, especially imported toys, are not only not citizens of Russia but they are not even people,” Andrei Lyapunov, a spokesman for Barnaul, told local media.

It’s easy to see the flaw in Lyapunov’s reasoning. Yes, toys are not people. But owners of toys are. The toy protest is an exercise of the owners’ rights to freedom of expression, not the rights of the toys themselves. Banning a toy protest because toys are not people is much like banning the publication of antigovernment articles in a newspaper on the grounds that newspapers are not people.

Unfortunately, such dubious justifications for restricting political speech are not limited to Russia. Right here in the United States, many claim that the government should have a free hand in restricting political speech by corporations because corporations aren’t people. As I explained here, they are making exactly the same mistake as Lyapunov.

UPDATE: Some commenters are confusing the “corporations are not people” argument [...]

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The Google Anti-Stop-Online-Piracy-Act Statement, Corporate Speech, and the First Amendment

Following Citizens United, I heard many people argue that the Court was wrong because corporations should not be seen as having First Amendment rights — not just that they do have First Amendment rights but that there’s some special compelling interest that justifies restricting corporate speech about candidates, but that corporations aren’t people and therefore can’t have First Amendment rights at all. (UPDATE: I don’t agree with this, for reasons that include those briefly sketched here, but I set those arguments aside for now.) Let me then ask this question of our readers who take this view:

Today, Google’s U.S. query page features an anti-Stop-Online-Piracy-Act statement from Google. Say that Congress concludes that it’s unfair for Google to be able to speak so broadly, in a way that ordinary Americans (including ordinary Congressmen) generally can’t. Congress therefore enacts a statute banning all corporations from spending their money — and therefore banning them from speaking — in support of or opposition to any statute. What would you say about such a statute? Again, I limit the question to those who think corporations generally lack First Amendment rights.

(1) Perfectly constitutional, because corporations aren’t people, and thus have no First Amendment rights.

(2) Unconstitutional as applied to Google, because media corporations do have First Amendment rights, though other corporations don’t, and Google should be seen as a media corporation, even as to its query page rather than as to news.google.com and the like.

(3) Unconstitutional, because though corporations aren’t people and thus have no First Amendment rights for purposes of advertising in support of or opposition to candidates, they are people and thus do have First Amendment rights for purposes of other speech.

(4) Unconstitutional, for some other reason. [...]

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The Original and Traditional Meaning of “Freedom … of the Press”

My article, Freedom for the Press as an Industry, or for the Press as a Technology? From the Framing to Today, 160 U. Penn. L. Rev. 459 (2011), available in its full PDF form here, has just been published; here is the Introduction:

“[T]he freedom … of the press” specially protects the press as an industry, which is to say newspapers, television stations, and the like — so have argued some judges and scholars, such as the Citizens United v. FEC dissenters and Justices Stewart, Powell, and Douglas. This argument is made in many contexts: election-related speech, libel law, the journalist’s privilege, access to government property, and more.

Some lower courts have indeed concluded that some First Amendment constitutional protections apply only to the institutional press, and not to book authors, political advertisers, writers of letters to the editor, professors who post material on their websites, or people who are interviewed by newspaper reporters. Sometimes, this argument is used to support weaker protection for non-institutional-press speakers than is already given to institutional-press speakers. At other times, it is used to support greater protection for institutional-press speakers than they already get. The argument in the latter set of cases is that the greater protection can be limited to institutional-press speakers, and so will undermine rival government interests less than if the greater protection were extended to all speakers.

But other judges and scholars — including the Citizens United majority and Justice Brennan — have argued that the “freedom … of the press” does not protect the press-as-industry, but rather protects everyone’s use of the printing press (and its modern equivalents) as a technology. People or organizations who occasionally rent the technology, for instance by buying newspaper space, broadcast time, or the services of a printing company, are just

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Montana Supreme Court vs. the United States Supreme Court

In today’s Western Tradition Partnership, Inc. v. Attorney General, the Montana Supreme Court upheld a ban on corporate expenditures to speak in support of or opposition to political candidates — pretty much the same sort of ban that the United States Supreme Court struck down in Citizens United v. FEC. The majority argues that Citizens United is distinguishable, because of Montana’s “unique” interests stemming from its history, its size, and its political culture. Here’s what strikes me as a key excerpt, though both the majority and the dissent are long, and no short excerpt can do justice to them:

The question then, [given the long Montana history of corporate influence over politics that the court set forth -EV], is when in the last 99 years did Montana lose the power or interest sufficient to support the statute, if it ever did. If the statute has worked to preserve a degree of political and social autonomy is the State required to throw away its protections because the shadowy backers of WTP seek to promote their interests? Does a state have to repeal or invalidate its murder prohibition if the homicide rate declines? We think not. Issues of corporate influence, sparse population, dependence upon agriculture and extractive resource development, location as a transportation corridor, and low campaign costs make Montana especially vulnerable to continued efforts of corporate control to the detriment of democracy and the republican form of government. Clearly Montana has unique and compelling interests to protect through preservation of this statute.

While Montana has a clear interest in preserving the integrity of its electoral process, it also has an interest in encouraging the full participation of the Montana electorate. The unrefuted evidence submitted by the State in the District Court through the affidavit of Edwin Bender demonstrates that

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Proposed Constitutional Amendment Would Strip Pro-Business (But Not Anti-Business) Non-Profits of First Amendment Rights

I blogged about the Sen. Sanders / Reps. Deutch, DeFazio, Hastings, McDermott proposed constitutional amendment last week, but an e-mail from a reader led me to one other problem with the amendment. The amendment, you may recall, reads:

Section 1. The rights protected by the Constitution of the United States are the rights of natural persons and do not extend to for-profit corporations, limited liability companies, or other private entities established for business purposes or to promote business interests under the laws of any state, the United States, or any foreign state.

Section 2. Such corporate and other private entities established under law are subject to regulation by the people through the legislative process so long as such regulations are consistent with the powers of Congress and the States and do not limit the freedom of the press.

Section 3. Such corporate and other private entities shall be prohibited from making contributions or expenditures in any election of any candidate for public office or the vote upon any ballot measure submitted to the people.

Section 4. Congress and the States shall have the power to regulate and set limits on all election contributions and expenditures, including a candidate’s own spending, and to authorize the establishment of political committees to receive, spend, and publicly disclose the sources of those contributions and expenditures.

What the amendment would do with the speech of nonprofits is not clear: Section 1 says constitutional rights “are the rights of natural persons” — which doesn’t include groups such as the ACLU, the NRA, the NAACP, and so on — but at the same time says that they “do not extend to for-profit corporations, limited liability companies, or other private entities established for business purposes or to promote business interests,” a category that also doesn’t include such non-business-related [...]

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Proposed Constitutional Amendment Would Ban Editorials About Candidates or Ballot Measures by Nearly All Newspapers

That’s one of the effects of HJR 90, proposed by Reps. Theodore Deutch, Peter DeFazio, Alcee Hastings, and Jim McDermott, and a similar Senate proposal by Sen. Bernie Sanders:

Section 1. The rights protected by the Constitution of the United States are the rights of natural persons and do not extend to for-profit corporations, limited liability companies, or other private entities established for business purposes or to promote business interests under the laws of any state, the United States, or any foreign state.

Section 2. Such corporate and other private entities established under law are subject to regulation by the people through the legislative process so long as such regulations are consistent with the powers of Congress and the States and do not limit the freedom of the press.

Section 3. Such corporate and other private entities shall be prohibited from making contributions or expenditures in any election of any candidate for public office or the vote upon any ballot measure submitted to the people.

Section 4. Congress and the States shall have the power to regulate and set limits on all election contributions and expenditures, including a candidate’s own spending, and to authorize the establishment of political committees to receive, spend, and publicly disclose the sources of those contributions and expenditures.

Nearly all newspapers, TV stations, cable networks, and radio stations (except of course for nonprofits such as NPR) are organized as corporations or other entities established for business purposes. Under section 3, they “shall be prohibited” from making expenditures “in any election of any candidate … or the vote upon any ballot measure.” Since to write or print or broadcast anything, newspapers, networks, and broadcasters must spend money, this would ban — not just authorize Congress to ban, but itself ban — editorials supporting or opposing a [...]

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Newspapers Have No First Amendment Exemption from Political Spending Reporting Requirements

Regulations of campaign expenditures usually exempt the media (which has usually been read quite broadly to include most regularly published publications). Thus, for instance, the Federal Election Campaign Act, which as written banned independent expenditures of over $1000 in support of or opposition to a candidate, exempted the media — otherwise, the Act would have barred newspaper editorials for which over $1000 was spent, or which used more than $1000 worth of newspaper space (depending on how one decided to do the accounting). Buckley v. Valeo struck down the Act’s independent expenditure limits on First Amendment grounds, but it upheld various disclosure and reporting requirements; these too would have applied to media expenditures, if it weren’t for the media exemption in the statute. Likewise, bans on independent expenditures by corporations and unions (which were upheld by Austin v. Michigan Chamber of Commerce, though more recently struck down by Citizens United) have generally exempted the media, or else newspapers owned by corporations wouldn’t have been able to editorialize.

Because of this, it generally hasn’t been clear whether the media exemption was constitutionally mandated — whether a legislature could, if it wanted to, regulate newspapers’ expenditures related to political campaigns the same way it regulated other expenditures. But Olson v. City of Golden (D. Colo. Sept. 1, 2011) held that such an exemption is not constitutionally mandated.

Until 2010, a Golden (Colorado) ordinance provided that, “Any person [other than a candidate, political committee, or issue committee] making … expenditures totaling more than $50.00 shall deliver notice in writing of such expenditures to the City Clerk not later than three business days after the day that such funds are expended or services or materials provided.” “Expenditure” was in turn defined as “the payment, distribution, loan or advance of any money for [...]

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“How Campaign Finance Laws Made the British Press So Powerful”

That’s the title of an article in The New Republic. England apparently sharply constrains campaign spending (both by candidates and by advocacy groups that are acting independently of the candidates), so unsurprisingly this means dramatically greater power for newspapers. And equally unsurprisingly this is leading the author to call for still more restrictions, this time on newspapers.

To some, this situation may reveal the problem of campaign finance laws: By trying to prevent parties from spending large sums of money and stopping wealthy independent organizations from dominating the campaign, the relative voice of the newspapers is enhanced. But rather than admit that campaign finance laws are futile, one might also conclude that controls on campaign spending should be complemented by attempts to address media power.

The most obvious strategy in this regard is to limit the concentration of the media. Given the unrivalled capacity to engage in unrestrained electoral advocacy that comes with owning a newspaper, it is important that no single person or company be able to dominate the market. Others, by contrast, have called for the regulation of media content. Most of the content regulations being discussed at present are aimed at stopping invasions of privacy and preventing the acquisition of information through hacking and blagging. There have, however, been some calls that newspapers be required to cover political matters with due impartiality, as is required on UK television and radio. But even at the height of anti-Murdoch feeling, such a far-reaching measure seems very unlikely to be pursued….

[W]hile the robust political tradition of the UK press should not be sacrificed, it is time to think about how newspapers can better reflect a wide range of opinions and not give so much power to the proprietor.

Thanks to Paul Sherman (Institute for Justice’s Make No Law [...]

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District Judge Reaffirms Decision Striking Down Ban on Corporate Contributions to Candidate Campaigns

I blogged about the original decision here, and about an earlier appellate court decision to the contrary here. After the original decision striking down the ban, the district asked for more briefing in light of a Supreme Court precedent that the parties and he hadn’t cited, but yesterday he reaffirmed his earlier decision; Prof. Rick Hasen (Election Law Blog) has more. [...]

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Source of Federal Authority for Restricting Contributions to Federal Candidates

A commenter asks what I see as the source of federal authority for restricting contributions to federal candidates. The Court’s answer as to Senators and Representatives has generally been Article I, § 4, which says that “the Congress may at any time by Law make or alter [Regulations of the Times, Places and Manner of holding Elections for Senators and Representatives].” Restricting the conduct of people who are running for federal office, the theory goes, involves the regulation of the “Manner of holding Elections.” But I’m not sure whether this is right — “Manner of holding Elections” — could be used to refer to the manner of actually recording and counting the votes, and not the manner of running campaigns aimed at persuading voters. And, as the Court has recognized, this doesn’t speak to Presidential elections at all.

Rather, the better explanation, I think, is one that would build on the argument of Justice Sutherland — a supporter of fairly strong judicial enforcement of constraints on federal power — as to Presidential campaigns, in Burroughs & Cannon v. United States (1934). The President has the duty (Article II, § 3) to take care that the laws are faithfully executed, as well as other duties. The Congress has various powers, which the Constitution contemplates will be implemented in the interests of the legislators’ employers — the public.

Article I, section 8, clause 18 provides that Congress has the power to “make all Laws which shall be necessary and proper for carrying into Execution” all the powers of the Congress and the Presidency. I think that barring behavior that poses a substantial risk of being tantamount to bribery — and I do think that contributions pose such a risk (see Part III of this article) — is indeed “necessary and [...]

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Unconstitutional to Ban Corporate Contributions to Candidates (Even When Independent Expenditures Are Allowed)

So a district court held yesterday in United States v. Danielczyk (E.D. Va.). This is the opposite result from one reached by the Eighth Circuit ten days ago. (The district court discusses the district court decision that the Eighth Circuit affirmed, but not the Eighth Circuit decision itself.)

As I said when I posted about the Eighth Circuit decision, I think the ban on corporate contributions is indeed constitutional, even though I think Citizens United, which upheld corporations’ and unions’ right to engage in independent expenditures, is also right. I don’t think that corporate contributions to candidates by big businesses are likely to be particularly corrupting, among other things because (under Buckley v. Valeo) contributions to candidates by anyone — individual or corporation — can already be limited. Federal law, for instance, limits contributions to $2500 per election. IBM or the Service Employees International Union is not going to be able to materially influence a candidate by contributing $2500. If anything, corporate and union influence is much more likely to come from individual contributions by corporate employees and union members, which can indeed add up to much more money.

Rather, the problem with corporate contributions is that they provide an avenue for evading individual contribution limits; if I want to donate $25,000 to a candidate instead of the $2500 limit, I could set up nine corporations, and then donate myself and also have those corporations make similar donations. Few people would do that, but some people who want to be big political players might. Nor can this easily be dismissed as a supposed “sham” and be thus distinguished from “legitimate” corporate contributions. Say some pro-life or pro-choice advocate, for instance, sets up several advocacy groups, perhaps one per city or one per county; nothing wrong with that. [...]

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