Tag Archives: Campaign regulation

One State’s Concerted Attack on the First Amendment

New York is one of the most solidly left-wing states. But that doesn’t mean that all of its residents agree with the prevailing progressive ideology—and that dissent disturbs the leadership.

In an attempt to muzzle opposing viewpoints, New York’s elected officials are continuously seeking means to suppress free speech. The latest scandalous move comes from Assemblyman David Weprin, who represents part of NYC in the state legislature. He has introduced legislation (A5323) that is such a broad attack against the First Amendment that it has attracted national attention, garnering substantial criticism.  This is how the Washington Post’s  Eugene Volokh describes the measure:

“…under this bill, newspapers, scholarly works, copies of books on Google Books and Amazon, online encyclopedias (Wikipedia and others) — all would have to be censored whenever a judge and jury found (or the author expected them to find) that the speech was “no longer material to current public debate or discourse”…And of course the bill contains no exception even for material of genuine historical interest; after all, such speech would have to be removed if it was “no longer material to current public debate.” Nor is there an exception for autobiographic material, whether in a book, on a blog or anywhere else. Nor is there an exception for political figures, prominent businesspeople and others.But the deeper problem with the bill is simply that it aims to censor what people say, under a broad, vague test based on what the government thinks the public should or shouldn’t be discussing. It is clearly unconstitutional under current First Amendment law.”

A failure to comply with a request to remove material from articles, search engines or other places would make the author liable for, at a minimum, a penalty of $250 per day plus attorney fees.

Weprin isn’t alone in his antipathy for the First Amendment. New York enacted a measure that requires not-for-profit organizations that discuss public issues to disclose the names of donors who give more than $2,500, a move that violates both the First Amendment and the Fourth Amendment, as well as a Supreme Court ruling.

New York’s anti-free speech and campaign disclosure laws are stunning in their extent and open defiance of the First Amendment. Among other mandates, they impose a requirement of across the board disclosure of donors and staff, and provides a first-ever disclosure requirement for “political consultants.” At first glance, that appears comparatively innocuous. However, the devil is in the details. According to the legislation’s language, almost anyone who has ever had any relation or association with anyone even remotely connected to a campaign would have to be disclosed. In essence, it criminalizes anyone with an active interest in politics. Further, it substantially intimidates anyone seeking to provide summaries of their perspectives on the issues or advice on how to present those views from speaking with a candidate in any substantive manner. Independent advocacy groups promoting anything from environmental protection to benefits for veterans would be handicapped.

The outrageous assault on free speech has been challenged in federal court. Not backing down, NY Governor Andrew Cuomo has hired one of the nation’s top specialist attorney’s in the field to defend the offensive measure.

As previously reported in the New York Analysis of Policy & Government, New York Senator Charles Schumer, who is the U.S. Senate’s minority leader, proposed a measure that would limit free speech protections as they pertain to campaign donations. The proposed legislation, thankfully defeated, gained 43 Senate supporters—all Democrats. At a Senate Rules Committee  Schumer stated that “The First Amendment is sacred, but the First Amendment is not absolute. By making it absolute, you make it less sacred to most Americans.”

Campaign Regulation used for Partisan and Anti-Free Speech Goals

The trend towards restricting free speech through campaign finance regulations is gaining speed, on both the national and state levels.

The supporters of these anti-First Amendment moves allege that they are seeking to reduce the influence of money in politics.  In reality, their goals fall into two categories:

First, incumbent protection.  By establishing complicated and arcane rules concerning filing reports, with significant penalties for any less than perfect compliance, rather than simple requirements that the names of donors and the amounts provided (filed following the end of a campaign) be provided, they impose significant financial and legal burdens on challengers. Absent the access to professional assistance incumbents possess, citizens seeking to run must spend scarce resources and even more scarce time running a legally hazardous maze of requirements established by and for incumbents.

Second, partisan advantage. The Citizens United  decision held, as summarized by ScotusBlog,  that  “ Political spending is a form of protected speech under the First Amendment, and the government may not keep corporations or unions from spending money to support or denounce individual candidates in elections. While corporations or unions may not give money directly to campaigns, they may seek to persuade the voting public through other means, including ads, especially where these ads were not broadcast.” Many on the left of the political spectrum believe that this upset advantages they long held, and have sought to enact legislation and regulation to restore that advantage.

There have been measures, some of which have passed and others blocked, that have sought to reduce the effectiveness of the First Amendment in an attempt to regain that advantage.

One extremist measure that failed was a piece of legislation introduced by Senator Charles Schumer (D-NY) to initiate the constitutional amendment process in order to limit the effectiveness of the First Amendment.  The proposed limitation on free speech rights would have excluded paid political speech from constitutional protection.

A radical legislative item has been approved by the New York State Legislature. The measure openly headlines its goal as “Enacting the nation’s strongest protections to combat Citizens United.” Among other mandates, it imposes a requirement of across the board disclosure of donors and staff, and provides a first-ever disclosure requirement for “political consultants.” At first glance, that appears comparatively innocuous. However, the devil is in the details. According to the legislation’s language, almost anyone who has ever had any relation or association with anyone even remotely connected to a campaign would have to be disclosed. In essence, it criminalizes anyone with an active interest in politics. Further, it substantially intimidates anyone seeking to provide summaries of their perspectives on the issues or advice on how to present those views from speaking with a candidate in any substantive manner. Independent advocacy groups promoting anything from environmental protection to benefits for veterans would be handicapped.

The details of the law provide a chilling attack on First Amendment rights of freedom of speech and association, in a manner that clearly helps incumbents and handcuffs challengers. Even nonpartisan organizations that openly disagree with particular policies of elected officials would be subjected to onerous reporting requirements merely for stating their beliefs, while incumbents could continue to speak their views unencumbered.

It gets even worse.  Assume you are a motorist who has become tired of replacing tires destroyed by potholes not repaired by the state, and you are angered that your elected official has done nothing to address the problem. You, acting entirely on your own, decide to air your grievance on social media, and perhaps write a few letters to newspapers.  Under the law’s definition, you should have registered as an independent committee, subject to all the red tape and legal requirements that implies. Clearly, that prevents private citizens not wishing to be subjected to penalties from criticizing their errant local official, or even seeking to organize friends and neighbors to protest.

The anti-First Amendment drive involves regulation as well as legislation. The Democrat members of the Federal Election Commission attempted to impose a penalty on one news station that has been uniformly critical of the Obama Administration, based on a complaint from an obscure candidate that he wasn’t invited to a televised debate. Of course, those same commissioners have never considered imposing similar sanctions against the Democrat National Committee, which has inappropriately tilted towards Hillary Clinton in her primary effort against Bernie Sanders. The attempt was blocked by Republican Commissioners.

The U.S. Supreme Court has repeatedly held, even long before the Citizens United case, that campaign contributions and expenditures are protected by the First Amendment. Legalities aside, common sense in a free nation dictates that public statements made by citizens or organizations disagreeing (or agreeing) with their elected officials is a vital activity in a free nation.

The numerous attempts to use campaign regulation, which should reasonably only consist of open disclosure of all contributions, as a vehicle to immunize incumbents from criticism, and to tilt the balance of power in a partisan manner, is an affront to the entire concept of a free people.

Bureaucrats vs. the Ballot Box

Free elections in the United States are increasingly endangered. The threat comes from a number of fronts, including the use by the Obama Administration of federal agencies to intimidate political opponents, and the increasingly oppressive and biased actions of campaign regulatory agencies.

The most well-known scandal is the action by the Internal Revenue Service to attack Tea Party groups, which oppose President Obama’s policies. Despite the clearly illegal nature of the IRS action, and the mandate of the court to produce information about its misdeeds, the tax agency continues to evade compliance with the law.

Last month, as noted by the Courthouse News Service :

“The Sixth Circuit slammed the IRS for continuing to resist, after nearly a year, an order compelling it to release lists that Tea Party groups say singled them out for harsh scrutiny….The targets of such attention allegedly faced year-long delays in the processing of applications, tight deadlines for responses, and requests for large amounts of unneeded documents.     After a federal judge cracked the whip ….the IRS continually shrugged off the court order and filed its own petition claiming that the documents were confidential.  Disagreeing with that characterization, the three-judge appellate panel said applications that were accepted or rejected are not considered “tax-return” information, and are not afforded such confidentiality… the decision does demand the documents be released “without redactions, and without further delay.”

Judicial Watch’s  Investigation revealed that email exchanges between former Internal Revenue Services (IRS) Director of Exempt Organizations Lois Lerner and enforcement attorneys at the Federal Election Commission (FEC) demonstrated that the IRS provided “detailed, confidential information concerning the tax exempt application status and returns of conservative groups to the FEC,” a violation of federal law.  Included with the email exchanges were IRS questionnaires to a conservative group that contained questions of a hostile nature.

In its March 16 decision, the Sixth Circuit Court bluntly  stated:

“Among the most serious allegations a federal court can address are that an Executive agency has targeted citizens for mistreatment based on their political views. No citizen…should be targeted or even have to fear being targeted on those grounds. Yet those are the grounds on which the plaintiffs allege they were mistreated by the IRS here. The allegations are substantial: most are drawn from findings made by the Treasury Department’s own Inspector General for Tax Administration. Those findings include that the IRS used political criteria to round up applications for tax-exempt status filed by so-called tea-party groups; that the IRS often took four times as long to process tea-party applications as other applications; and that the IRS served tea-party applicants with crushing demands for what the Inspector General called “unnecessary information.” Yet in this lawsuit the IRS has only compounded the conduct that gave rise to it. The plaintiffs seek damages on behalf of themselves and other groups whose applications the IRS treated in the manner described by the Inspector General. The lawsuit has progressed as slowly as the underlying applications themselves: at every turn the IRS has resisted the plaintiffs’ requests for information regarding the IRS’s treatment of the plaintiff class, eventually to the open frustration of the district court. At issue here are IRS “Be On the Lookout” lists of organizations allegedly targeted for unfavorable treatment because of their political beliefs. … almost a year later, the IRS still has not complied with the court’s orders.”

The IRS defiantly continues to seek to use its enormous power to influence elections.  A Capital Research  analysis reports:

“President Obama’s IRS is still holding nonprofit applications from conservative and Tea Party groups hostage even now, years after the IRS targeting scandal first made headlines. The IRS remains a powerful instrument of political repression in the hands of Obama. Always on the hunt for new ways to disadvantage his political adversaries, Obama is also now moving forward with a fresh campaign of political intimidation against nonprofit groups that strikes at the heart of the American democratic process. Ominously, IRS boss John Koskinen has vowed ‘to have new rules to limit political activities of nonprofit organizations in place before the 2016 election, raising the specter of another major fight over the tax agency and political targeting,’ the Washington Times paraphrased Koskinen saying. The IRS already tried to impose a rule preventing nonprofits from running voter registration drives (which is currently legal if done on a “nonpartisan” basis), but backed down in the face of a public backlash.”

The concept of campaign regulation is also threatening the future of free elections in the United States. It is, under the guise of “taking the influence of money out of politics,” placing both free speech and free elections under the thumb of biased bureaucrats intent on replacing the will of the people with the goals of a politically biased elite.

A CATO examination of campaign regulation noted:

“campaign finance regulations favor incumbents, stifle grassroots activity, distort and constrict political debate, and infringe on traditional First Amendment freedoms. There is little reason to believe that still more regulation and public funding will yield positive results.The framers of the Bill of Rights provided for the First Amendment to keep the government from attempting to limit political debate and criticism. We should recognize the wisdom of that decision and return to the system of campaign “regulation” that the Founders intended: “Congress shall make no law . . . abridging the freedom of speech.”

An Institute for Justice study concurs:

“the federal government and most states have passed campaign finance laws that blatantly violate [free speech] rights. Sold as efforts to control the influence of ‘money’ in politics, the laws in fact regulate what money buys—political speech—and what it represents for many citizens—a meaningful opportunity to participate in the political process…In short, in America, it is now constitutional for the government to control and even ban political speech and participation. To borrow from Justice Thomas in his now-famous dissent in the Kelo case: Something has gone horribly awry with the Court’s—and the country’s—approach to the First Amendment.”

The New York Post’s examination of the Big Apple’s local campaign finance board concluded:

“Tired of voting? Here’s good news: The city’s Campaign Finance Board might soon do the choosing for you. It’s headed that way, anyhow. Even now, the CFB’s independence is in doubt, as current members may curry favor to win reappointment…the CFB, which pretends to boost democracy … operates as an unelected barrier to campaigns and political speech. In fact, the city’s entire campaign-finance system, which costs taxpayers millions, has proven itself a sham that’s only invited abuse and corruption.”

America’s profound and widening division

There have been numerous elections filled with contentious and divisive issues. However, the 2016 presidential contest is highlighted by differences so profound that they have little precedent in American politics. Unlike other discordant eras, where singular topics or approaches to crises produced sharp differences within the electorate, it is the very fabric of the nation that is being argued over.

Consider these bedrock current topics:

What is the role of the federal government? What issues involve personal choice, as opposed to those that come under the purview of elected officials, administrative agencies, and the courts? Should the U.S. have enforceable borders? What is America’s role in the world? Which nations are our friends, and which are our enemies? Should U.S. foreign policy be subordinated to the United Nations? Should international treaties have precedent over American law? Should taxpayer dollars be used for citizens, or should some portion of them be set aside for the benefit of people around the world? How sacrosanct are the protections afforded by the Bill of Rights? How closely must the Constitution be followed in areas such as the separation of powers?   What is the best economic system for the U.S., one based on a free market, or that more closely identified with socialist systems? Should campaign regulations be allowed to interfere with free speech rights?

There are a number of illustrations, clarified by the recent televised candidate debates, which exemplify the yawning gap between the growing divisions in U.S. society.

In the economic sphere, Senator Bernie Sanders openly espouses a more socialist economic system, and the other two presidential hopefuls within his party are not that different from him in their economic views.  It’s not liberalism they are espousing; it is a form of true socialism.  Their solutions involve more federal programs, higher taxation, and increased regulation.  In sharp contrast, the GOP candidates advocate reducing the role of government in the marketplace and lowering taxes.  They point to the fact that programs such as the War on Poverty have spent over a trillion dollars and have failed to reduce the percentage of Americans in poverty, and emphasize that increased regulations prevents the economy from growing, impedes success in competing with other nations, and keeps unemployment high.

Unexpectedly, the First Amendment has become a political battleground. Senator Charles Schumer (D-NY) wants to amend it to eliminate the right when it comes to paid political speech. Others within the Democrat party advocate strict campaign regulations that also require limiting free speech.  Most Republicans take the opposite tack, and maintain that no limit on the First Amendment is acceptable.

The differences are generational as well.  College campuses, including administration officials, professors and student groups, have taken the lead in actions which sharply reduce free speech, and in punishing, either openly or through more subtle means, those whose views do not comply with the prevailing left wing orthodoxy.

The Pew Research organization  has found that 40% of Millennials are OK with limiting speech they term offensive to minorities.  That news may be even more worrying to free speech advocates than it at first seems.  The “offensive language” referred to is not racial slurs or related derogatory comments.  In many instances, what has been termed offensive are actually little more than disagreements about issues not directly related to race at all.  Saying, for example, that All Lives Matter, rather than just Black Lives Matter, has been termed offensive by some. Again, the differences are stark. The three Democrat candidates adhere to the Black Lives Matter saying; the Republicans prefer All Lives Matter.

Beyond the contentious issue of race, the increasing use of terms such as “micro aggression”—essentially any disagreement that makes someone uncomfortable– are employed to justify free speech limitations, in any variety of areas. When combined with the potential for international control of the internet which will give influence to nations advocating censorship, there is ample reason for the concern expressed by advocates. The concept of limiting coverage under the Bill of Rights is one that leaves little room for compromise between the growing divisions in American society.

International relations have always proved divisive, and again the differences are stark, but not always divided on strict party lines. The recently withdrawn Democrat candidate Jim Webb advocated a more muscular approach, as do the majority of GOP candidates. However, Republican Rand Paul has advised lesser U.S. involvement overseas. The clearest division is how international threats are perceived, not necessarily in the best way to deter them.  Under the leadership of President Obama and in the positions taken by those Democrats who hope to succeed him, the threats from Russia, China, Iran, North Korea and Islamic extremists have been downplayed. (Hillary Clinton has identified Republicans as the enemy.) The GOP hopefuls have stressed the dangers from those nations and organizations.

Similarly, Democrats tend to favor increased international influence from multinational treaties and organizations on internal American affairs. Republicans point to the lesser rights provided to citizens around the world, and worry that international influence will diminish American rights.

U.S. citizens increasingly read different publications, watch and listen to different news programs, and quote different versions of history. How this will affect the unity of the nation is an issue all sides should be troubled by.

The Attack on Free Speech

Over the past several months, numerous and unprecedented attacks on the First Amendment have endangered the most cherished American right, freedom of speech. From United Nations conferences to the White House, to the  floor of the U.S. Senate, from court rooms to City Halls, and of course the bureaucracies on the federal, state and local levels that (with questionable constitutionality) seek to regulate political campaigns, the right to open and unfettered expression has become jeopardized as never before in the American experience.

There have been various dimensions to this unprecedented assault.

Internationalization of control of the internet, brought about by President Obama’s inexplicable decision to relinquish U.S. control, has allowed totalitarian governments to come within striking distance of regulating free speech on the web. The U.N.’s International Telecommunications Union  met in Turkey in September, and continued to receive unrelenting pressure from oppressive regimes to enact censorship rules. The organization will meet again in Brazil in November of 2015.

The Centre for International Governance Innovation (CIGI) analyzed aspects of the internet governance debate. Their report noted that starting in 2003, Russia, China, and the Arab states advanced “an explicit rule-making agenda” for a more “state-controlled and monetary version of the internet.” According to Freedom House, “Broad surveillance, new laws controlling web content, and growing arrests of social-media users drove a worldwide decline in internet freedom in the past year.” The study also found that “While blocking and filtering remain the preferred methods of censorship in many countries, governments are increasingly looking at who is saying what online, and finding ways to punish them…In some countries, a user can get arrested for simply posting on Facebook or for “liking” a friend’s comment that is critical of the authorities…”

Within the U.S., attempts to bring any comments which could affect political campaigns (which, on a practical basis, involves almost all discussion of current issues) under the control of federal, state and local election commissions has been the Trojan Horse which advocates of limitations on free speech have used to abridge First Amendment rights. A  Washington Free Beacon article by Ken Vogel reported that President Obama, in an address to wealthy donors in 2012, asserted that he would be “in a very strong position” to amend the Constitution regarding campaign laws during his second term. Tying in free speech laws to campaign regulations has been a key avenue of attack for anti-First Amendment advocates.

The President’s comment was particularly ominous in light of the revelation that the Internal Revenue service targeted groups that opposed him.  It is not coincidental that Lois Lerner, the chief figure in that scandal, previously worked for the Federal Election Commission and engaged in similar outrages there.

In some jurisdictions, such as New York, regulations have been enacted placing publications of any sort which could affect a campaign under the jurisdiction by the State Board of Elections. In Wisconsin, the Government Accountability Board harasses non-leftist groups that seek to disseminate their views.

Within the U.S. Senate, Tom Udall (D-New Mexico) and Charles Schumer (D-New York), proposed a measure that would limit free speech protections as they pertain to campaign donations. The proposed legislation gained 43 Senate supporters—all Democrats. At a Senate Rules Committee hearing earlier this year, Schumer stated that “”The First Amendment is sacred, but the First Amendment is not absolute. By making it absolute, you make it less sacred to most Americans.” The Republican minority was able to block the measure

It’s not just in the sphere of campaign regulations that has seen the First Amendment jeopardized. Earlier this year, in what may be one of the most controversial programs ever initiated by a federal agency, the Federal Communications Commission attempted to implement a so-called “research effort” entitled “critical information needs” (known as CIN) involving Washington oversight of broadcasters and journalists throughout America. It would have placed government employees in the private internal conversations and meetings of journalists, media organizations, and even internet sites. The breadth of what would have been covered was a comprehensive list of what the public sees, hears, reads, or surfs. It includes television and radio broadcast content, articles printed in daily and weekly newspapers, and even what’s placed on line on the internet. In addition, a so-called “qualitative analysis of media providers” would have been included. Fortunately, the measure did not go into effect.

The FCC is increasingly seen as a potential tool by leftist advocacy groups to silence less radical opponents.  Recently, the Wall Street Journal reported that law professor John Banzhaf III requested the FCC to deny a broadcast license to a radio station that didn’t comply with his attempt to eliminate the public use of the team name Washington Redskins.

Under White House direction, federal agencies have engaged in unprecedented actions to limit free speech. The three Democrat members of The Federal Elections Commission  recently sought to bring many internet posts under the control of that bureaucracy.  The move was blocked by the three Republican members.

Clearly, President Obama has a particularly disdainful attitude towards the First Amendment. The Washington Post recently published a “compendium” of press opinions on President Obama’s treatment of the media. Many of the worries expressed were all the more notable because they came from sources that were, in the past, generally supportive of the current White House. Among the more remarkable comments in the compendium: Former NY Times executive editor Jill Abramson: “It is the most secretive White House that I have ever been involved in covering.” NY Times reporter James Risen: “I think Obama hates the press.” USA Today Washington Bureau Chief Susan Page called the Obama Administration “more secretive and more dangerous to the press than any other in history.”

Beyond Washington, localities and political pressure groups have grown increasingly intolerant of dissent. The recent attempt by Houston’s openly lesbian mayor Annise Parker to subpoena the sermons of any clergy preaching against her controversial measures (which would mandate, among other moves, allowing males who feel they are actually females to use women’s bathrooms) is a notorious example, violative of both the free speech and religious mandates of the First Amendment.

National Review describes efforts by environmental extremists to “literally imprison people for holding unpopular views about global warming.”

All of these attempts clearly defy the very specific mandate of the First Amendment, which specifically states that Congress shall make no law… abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

For generations, Americans safely assumed that their freedom of speech were sacrosanct.  That confidence can no longer be justified.