Jeffrey Milyo does top-flight, rigorous research on politics and elections. In today’s edition of the New York Post, Jeff explains that campaign-finance regulations stifle public discussion and participation in politics. Here’s some of Jeff’s op-ed:
Under the First Amendment, every citizen should have an unfettered right to participate in public debate. But try
to get involved in political life, and you will soon see how far we
have come from the time of anonymous pamphleteers holding forth on the
great issues of the day. Apparently, it takes a lot of bureaucracy and
red tape to oversee free speech, even when it involves relatively
straightforward debate for or against a clearly defined ballot measure.
Today,
citizen groups as small as two people with as little as a few hundred
dollars must register with the government as a "political committee" in
order to speak about a ballot issue. State campaign-finance laws also
require detailed disclosure of almost every transaction by such
committees; most states then post the names, addresses and employers of
most committee contributors on the Internet.
These laws cover
more than monetary transactions. Yard signs, flyers and other
"non-monetary" support for a ballot issue can subject ordinary citizens
to state disclosure laws. Dare to engage in similar political activity
with neighbors or other like-minded citizens, and you will probably
become a "political committee" under the law. Either way, detailed
reports on your activities are likely required. Fail to file them and
you could face large fines or even be sued by political opponents.
Worse still, state campaign-finance disclosure rules are so complex and
confusing that even professional political groups sometimes have
trouble making heads or tails of them. Pity the hapless ordinary
citizens who feel moved to speak out on a public issue. What are the
chances they would even know about such rules, let alone be able to
comprehend the legalese and comply with unfamiliar bureaucratic
regulations?
Rhetorical question for you Cafe patrons: Who’s bright idea was it to let politicians determine the rules that govern competition for political office?
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{ 14 comments }
The alternative would be secret donations of large amounts of cash from corporate interests trying to buy influence. I think the aspects of campaign finance law that enforce transparency are good; as for the restrictions on who can donate or spend, I agree that we would better off without them.
I'd start with MaCain and Feingold.
Does anyone recall the Constitutional provision that stipulates "Congress shall make no law . . . abridging the freedom of speech, or of the press"? Every one of the cockroaches who enacted these speech-control laws or upheld them in their capacity as judges took office after swearing to preserve, protect, and defend the Constitution of the United States. Evidently they were swearing a false oath. They understand themselves to be the jackboot, and the people to be what is crushed beneath it. Or was the meaning of the word "no" simply too difficult for government officials to understand?
"The alternative would be secret donations of large amounts of cash from corporate interests trying to buy influence."
I love the fact that people think there are ONLY two alternatives. Use your imagination people and imagine more than just one alternative.
But perhaps you're more imaginative that I initially thought for fancying that secret donations aren't being made now in an attempt to buy influence.
I was in college in the 1970's when the campaign reform efforts first started. I have now seen almost every Congress enact its new set of regulations designed to close the "loopholes" caused by the last attempt at comprehensive "reform".
Given their almost 40 years of failed attempts to take the influence of "money" and "special interests" out of politics, when will Congress realize that it cannot be done?
It's not just poliicians, legislatures and Congress foisting these nightmarish laws and regulations on us. In Colorado any citizen initiative or amendment to the state constitution is sure to be passed by the voters, and probably by a large margin, if it has the words "campaign finance reform" or "limitation of campaign spending" or other similar words anywhere in its title.
In Colorado at least, the majority of the public is under the spell of "getting the money out of politics," as the best idea since sliced bread.
"Who's bright idea was it to let politicians determine the rules that govern competition for political office?"
The Supreme Court (or at least they failed to stop it, which is their job).
"Who's bright idea was it to let politicians determine the rules that govern competition for political office?"
The simple answer is the framers of the U.S. Constitution.
Article I, Section 4, clause 1, of the Constitution empowers Congress to regulate the "manner of holding elections for senators and representatives."
Article I, Section 8, clause 18, empowers Congress "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the United States, or in any department and officer thereof."
The explicit grant of power in Article I, Section 4, clause 1, combined with the general grant in Article I, Section 8, clause 18, has been deemed to empower Congress to protect the federal elective system against fraud and corrupt abuse. This effect of the combination of these two clauses can be fairly certainly have been what the framers intended the result to be.
As to the comment by Robert Higgs on the meaning of the term "no" in the First Amendment, I believe the response is that it is questionable whether any constitutional or statutory prohibition can be construed to be absolute.
If the term "no" in the phrase "no law" in the First Amendment were intended to be as absolute as Robert Higgs suggests, then Congress could not prohibit fraudulent speech, and the securities laws passed in 1933 and 1934, among others, would be unconstitutional.
But at the time of the drafting of the Constitution, laws against fraudulent or libelous (i.e., untrue) speech were accepted. Given the contemporaneous circumstances of laws restricting certain types of speech, it would take an unwarranted leap of logic to assume the framers intended the "no" in the phrase "no law" in the First Amendment to prohibit Congress from passing laws against fraudulent or libelous speech. And I believe no persuasive contemporary evidence at the time of the adoption of the Constitution exists that would support such a construction of that phrase.
The fact is, as any parent with toddlers has learned, "no" has a generic meaning, but it needs to be applied within a rule of reason. Reasonable "time place and manner" restrictions on free speech have been sustained, i.e., no sound trucks in residential areas after bedtime, restrictions against leaflets in park areas to prevent liter, etc., under the 'rule of reason." The duty falls on the Supreme Court to decide what is a reasonable interpretation of that term is.
This situation is very similar to the "rule of reason" interpretation of the Sherman Act prohibition on combinations in restraint of trade. Literally speaking any contract that binds another is a combination in restrain of trade. But the courts have construed the prohibition only applies to those activities that have an undue adverse effect on competition. Thus, most of us can bind ourselves and get the benefit of others binding themselves, without our contracts being subject to abrogation based on the prohibition in the Sherman Act.
Pretty darn good DWG, except IMHO you miss the mark.
The "no" in the first amendment is absolute. That there are laws against fraudulent speech is not proof that it is not absolute at all, it is proof that there are laws against fraud. It is not the speech that is in violation of the first amendment, it is the fraud.
This is why we lost our control of the government, we didn't pay close enough attention to what was actually written. Our freedom of speech is acknowledged as a right, but no where in the constitution are we guaranteed a venue, no guarantee that anyone must hear you, or even that you can force yourself upon them in exercising your right. The "no" is absolute as to speech, and arbitrary as hell after that.
No sound trucks on residential zones after an early hour is not proof that the "no" in the first amendment is not absolute, it is proof that there are things that are considered a nuisance, so while the speech is not prohibited, the time is. The sound trucks are welcome and free to come back during daylight hours. This is not a restriction on the speech just the time and venue…..a big big big difference. There is nothing in the first amendment about "when", "where", or even "how".
Laws against litter are not restrictions of speech just of litter. It is okay to print and distribute the leaflets by handing them to people. It is not okay to throw the leaflet on the ground, which has nothing to do with the speech the leaflet contains….no more than if it was a snickers wrapper. Big big big difference.
It is not censorship and a violation of the first amendment for radio stations, convention centers, and music stores to refuse to air, promote, or sell Dixie Chicks CDs because they are denying venue, and only venue,not the Dixie Chicks right to free speech.
Gentlemen & muirduck (he/she/it),
once upon a time in a land far far away I believed. As a graduate of the Texas and Arizona school systems, how could I not?
The one day I got bumped off the tracks of blind citizenship. I admit that I was living close to the edge anyway. In High School I figured out the use of symbols with which authorities try to hook us to a set behavior (Yea school! Good old Green and Gold! Rah Rah, School spirit Yea yea!, our team etc. etc. Then the flag, the "pledge of allegiance"…..don't think, just do as we train you to do."
After joining the military it only got worse, till that day I was permanantly bumped off the tracks. When I hit the ground all the blinders installed by my parents, teachers, and community fell off and I saw that as long as I had been on the tracks I could not see.
Off the tracks I could look at my fellows going by on the tracks and see the reality.
Oh oh my how we are lied to!
The constitution is nothing but the corporation papers for the corporate UNITED STATES OF AMERICA, and nowhere in it is the individual mentioned.
You will notice it describes the structure of the corporation and how its officers are selected, their tenure, and vaguely how those officer must conduct themselves. You my dear sir, slogging away at your day's labor aren't in it at all.
Now research the Articles of Confederation and you will see it does mention the free individual and his right of unrestricted travel and existence in the United States of America. (note the difference between THE UNITED STATES OF AMERICA and The United States of America? That's right, capitalization. Most of your life is governed by the Uniform Commercial Code, not the U.S. Criminal Code or Civil Code, and the names of corporations are always spelled in all caps in legal documents. Ever wonder why the IRS sends its mail to JOHN DOE, and John Doe? It's because in the eyes of the government you, my dear sir, are a corporation and subject to laws and rules you have zero comprehension of.)
Back to the constitution. The real problem with the constitution is found in Article 1, sec 5, para 2 "Each house may determine the rules of its proceeding,…….".
That is what subverted republican representative democracy. It allowed congress to immediately establish the committee system and absolute power passed to the head of the committee which negates any power an individual representative may have had to represent his district without selling out to the committee head…..or to the party bosses. And, of course the right to appoint committee heads and members rests upon the dominant party in congress, which explains to the new and naive the desperate fight for majority status in congress.
Now as further proof of my contentions here is one other bit of a law that some of you may have had the opportunity to brush up against. The dreaded IRS Intent to LIEN and LEVY notice. If one has actually read it instead of panicking then one would have noticed that on the back of it is printed a copy of USC Title 26, subtitle F, Chp 64 Collection subchp D. Part II Levy Sec 6331.
Strangely enough though your friendly honest IRS (with full knowledge of congress and the US courts) begins their reprint with paragraph b. which tells basically what they can seize and how they are authorized to go about it.
Why paragraph b?
Maybe because if you saw paragraph a., you would realize that 6331 does not apply to you at all. It only applies to the officers and employees of the government. Oh wow! How about that….see next paragraph.
26 USC Sec. 6331 01/02/2006
-EXPCITE-
TITLE 26 – INTERNAL REVENUE CODE
Subtitle F – Procedure and Administration
CHAPTER 64 – COLLECTION
Subchapter D – Seizure of Property for Collection of Taxes
PART II – LEVY
-HEAD-
Sec. 6331. Levy and distraint
-STATUTE-
(a) Authority of Secretary
If any person liable to pay any tax neglects or refuses to pay
the same within 10 days after notice and demand, it shall be lawful
for the Secretary to collect such tax (and such further sum as
shall be sufficient to cover the expenses of the levy) by levy upon
all property and rights to property (except such property as is
exempt under section 6334) belonging to such person or on which
there is a lien provided in this chapter for the payment of such
tax. Levy may be made upon the accrued salary or wages of any
officer, employee, or elected official, of the United States, the
District of Columbia, or any agency or instrumentality of the
United States or the District of Columbia, by serving a notice of
levy on the employer (as defined in section 3401(d)) of such
officer, employee, or elected official. If the Secretary makes a
finding that the collection of such tax is in jeopardy, notice and
demand for immediate payment of such tax may be made by the
Secretary and, upon failure or refusal to pay such tax, collection
thereof by levy shall be lawful without regard to the 10-day period
provided in this section.
You see gents, and muirduck he/she/it, sec 6331 para a. tells "who" the whole thing applies to, and you don't see yourself in their do you? You own a sewing shop making alterations to clothes? And, you thought Title 26 6331 applied to you….tsk tsk. Never trust the government or its employees!
Now let's turn our attention to another little known fact that sits right out ther in the open and we don't recognize it.
The constitution establishes the Supreme court and no other. that third branch of Justice consists of one Supreme Court and its employees.
But, vidyohs, you say, what of the U.S.A. Fedral District Courts we see in major cities across this great land? Sorry folks but those are under the legislative branch, not the judicial. Look at Article III, sec one and you think that they (as inferior courts) are part of the judicial branch, but it is congress that establishes them.
How do you get from one place to the other?
The supreme court has ruled that "what congress creates, congress rules." That is why the District of Columbia, created by Congress, is ruled by Congress, and also why the inferior courts mentioned in Article III sec one answer to congress, not the Supreme Court, and why the Supreme Court "selects" the cases it chooses to hear from the appeals courts of the system created by congress.
Now if I am right, and the constitution is the corporation papers of the corporate USA, and you as an individual aren't mentioned in it, how does it gain jurisdiction over you? The "We the People" mentioned in the preamble clearly is not you. That was some two hundred plus years ago. You didn't sign it, you weren't even offered the opportunity to approve of it.
Even today, as an adult you have never been asked to approve it and sign it.
How did you get into its jurisdiction?
One word. Presumption. Look up the word in a Black's Law Dictionary. Notice the concept that presumption can be rebutted? The presumption stands if not rebutted.
That the association is founded in fraud is a bonafide claim for duress. How many of us know the true state of affairs vis-a-vis our relationship to government?
Does it matter. I don't know how you feel about it. To me, a lover of freedom, independence and the right to choose my associations, it matters.
Sori the following should read:
"Ever wonder why the IRS sends its mail to JOHN DOE, and "not" John Doe?
I really hated to throw that out there, but we should all know and understand that we are playing in a rigged game.
We lose.
Vidyods' point is stimulating, but ultimately it fails to appropriately capture the judicial dynamics regarding sustaining restrictions on free speech.
I agree with Vidyods that in banning leafleting or sound trucks, the interest of government is to prevent or penalize littering or nuisance, which are legitimate governmental interests. Thus, I believe Vidyods probably recognizes the position endorsed by the courts that a compelling governmental interest in a non-speech arena can justify some restriction of speech. Where it appears to me our positions diverge relates to the implications of this on the absoluteness of the "no" in the phrase "no laws" in the First Amendment.
The court decisions explicitly acknowledge that speech is restricted when a court upholds a ban on leafleting in parks or on sound trucks in residential neighborhoods at night. The courts do so under a balancing test, namely, is the interest of government in preventing littering or nuisance sufficiently compelling to justify the restriction on speech.
From my perspective, if the "no" in the phrase "no laws" of the First Amendment were absolute (as Vidyods asserts), then it would trump the government's interests in pursuing other public goods and not permit speech to be restrained in the interest of pursuing these other public goods, such as the prevention of littering, nuisance, or fraud. I do not see how you can have it both ways; i.e., claim that the "no" is absolute (as Vidyods asserts), but accept that it can give way or be subordinated to another compelling governmental interest, such as prevention of litter, nuisance or fraud.
I probably am as concerned as others about the perverse and detrimental aspects of laws restricting campaign contributions. But if we are to hope to intelligently oppose them, we need to be aware of the dynamics in operation. If persuasive empirical evidence were to be developed that demonstrated that the rationale for these restrictions of prevention of election fraud or improper influence is invalid, then we might have some basis for a court to decline to sustain the restriction. The formula is simple, if there is no compelling countervailing governmental interest, then no grounds to sustain a restriction on free speech exists.
DWG does a good job, yet I still maintain that a law against handing out leaflets in a park is not a restriction on free speech but a restriction on venue.
If the restriction was on the speech then it would be illegal to hand them out anywhere in any venue. Yet the writer and producer of the leaflets while not allowed to hand them out in the park can stand on a street corner and hand them out, or stand in front of a movie theater and hand them out, both of those venues as a place of distribution would require no alteration of the leaflet that could not be handed out in the park.
There is an absolute guarantee of free speech, but none of venue.
There is an absolute guarantee of free speech but none of protected crime.
Free speech is a right because of the need for people to be informed and educated.
Fraudulent speech is not protected because it isn't meant to inform or educate, it is meant to deceive. Slander and libel fall under this same concept.