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Why federal campaign finance disclosure laws are unconstitutional

Why federal campaign finance disclosure laws are unconstitutional

This article originally appeared in The Hill.

Many on the left are campaigning to “overturn Citizens United.” By this they mean they want to reverse the portion of Citizens United v. Federal Election Commission in which the Supreme Court upended a federal ban on corporations participating in candidate elections independently of the candidates’ campaigns.

The effect of the court’s ruling is to allow citizens to utilize the corporate form when participating in politics. By an accurate reading of the Constitution, the ruling was correct—not merely because contributions are protected by the First Amendment, but for a more fundamental reason: The Constitution, as originally understood, grants Congress no power to govern political campaigns. Although it does grant Congress some authority over the mechanics of congressional electionsregulation of campaigns was reserved to the states.

But Citizens United included a second decision, one rarely mentioned. In this part of the case, the court upheld federal laws requiring contributors to political ads to publicly reveal their names.

Unlike the first ruling, the second was a constitutional mistake. Although the court has since reaffirmed its position, it should promptly reconsider.

At the heart of the court’s error is the assumption that political advertising is an example of what the First Amendment calls “the freedom of speech.” In fact, it is what the First Amendment calls “the freedom of the press.” The distinction is crucial.

When the First Amendment was ratified, freedom of speech was exercised in person, so the speaker’s identity was almost always known. Freedom of the press, was exercised through a medium that enabled the author to remain anonymous.

The founders did not have electronic media: Their media were pamphlets, letters, posters, handbills, and newspapers. But the nature of the medium is irrelevant to the meaning of the First Amendment: Its phrase “freedom of the press” inherently included the right of the author to conceal his identity.

We know this, in part, because the founding-era records contain statements explicitly saying so. Writers on freedom of the press staunchly defended an author’s right to privacy. They contended that privacy enabled an argument to be considered on its merits without regard to the popularity of the author. Privacy encouraged contributions from the timid and the vulnerable. Privacy protected authors and their families from retaliation. Privacy enabled a person to participate in public debate without public debate taking over his or her life.

We know this also from how freedom of the press was exercised during the Founding Era. Writers on political subjects almost always concealed their true names by using pen names or not signing at all. The Federalist Papers were the most celebrated example of the dominant custom.

There was really only one limit to the right to author privacy. If a text was defamatory, treasonable, or otherwise represented a crime or civil wrong, a prosecuting attorney could insist that the media outlet reveal the author’s name. Otherwise, the author’s identity was no one’s business.

An incident that occurred in 1782 is illustrative.

An author had placed an article in a Philadelphia newspaper criticizing state government. Hearing that the editor had revealed the name of the critic to the governor, another writer accused the editor of “treachery.”

In response, the editor explained that the governor had indeed asked the editor for the critic’s identity, but only (said the governor) “if you are at liberty to mention his name.”

In response to the governor’s request, the editor asked the author whether the editor had permission to reveal his identity. The author responded, “You are at liberty to give my name to his excellency.” Only then did the editor comply with the governor’s request.

So not even an editor—much less the government—could disclose the name of an author who wished to remain anonymous. And if the author had not been consulted, anonymity was assumed.

The founders would have found the congressional law mandating disclosure of contributors to political advertising to be a gross—and very dangerous—violation of the First Amendment. 

New Study Shows Campaign Disclosure Rules Violate First Amendment

New Study Shows Campaign Disclosure Rules Violate First Amendment

041410 Rob Natelson-2

This article was first published at the American Thinker website.

Many commentators and politicians have attacked the Supreme Court’s 2010 case of Citizens United v. Federal Election Commission for holding that citizens do not surrender their First Amendment rights when they organize under state corporation law. The Vermont state legislature has even adopted an application for a federal convention to propose a constitutional amendment to “overturn[] the Citizens United decision.”

Almost no one seems to know that the Citizens United case contained another ruling in addition to the one on corporate issue campaigns. The other ruling should be just as controversial, for it upheld a broad congressional attack on the privacy of those exercising First Amendment rights. Yet the critics have been almost entirely silent about that part of the case.

In the second ruling, the Court sustained, over Justice Thomas’ sole dissent, a federal mandate that political issue committees publicly reveal the names of major donors. The Court did so although disclosure can lead to retaliation and personal harassment of individuals exercising First Amendment rights. In other cases, the Court has voided disclosure requirements that can result in free expression being unconstitutionally “chilled.” But the Court refused to do so in Citizens United.

The NYU Journal of Law and Liberty has just published an article in which I examine the question of whether forced disclosure of contributors to issue campaigns is consistent with the First Amendment, as the Founders understood it.

Here are my principal findings:

* Under the First Amendment, political advertising is best analyzed as a branch of “the freedom . . . of the press” rather than “freedom of speech.”

* During the Founding Era, the terms “liberty of the press” and “freedom of the press” were exact synonyms, with the former somewhat more common.

* Despite some peripheral uncertainties, the founding generation well understood the core meaning of “freedom of the press.” In other words, it was not a vague or indefinable term.

* During the Founding Era, the near-universal custom of those writing on political subjects of all kinds was to write either anonymously or under assumed names. Printers were expected to respect their contributors’ privacy by not revealing their true identity without explicit permission.

* There were important and completely legitimate reasons for author privacy, all of which continue to be valid today. In fact because of intervening changes in defamation law, those reasons may be stronger now than they were during the founding era.

* The historical record contains explicit statements that assert, or inescapably assume, that “freedom of the press” includes the right to conceal one’s identity. I found only one claim that forced disclosure was consistent with freedom of the press, but it referred to voluntary disclosure by a private printer, not government-forced disclosure.

* Under founding-era law, the right to privacy of identity ended in specific cases of “abuse.” When an author appeared to be guilty of one or more specific offenses, a prosecutor or other plaintiff could require the printer to disclose the name. These offenses included, but were not limited to, defamation, sedition, and treason. In the absence of such an offense, the author’s name was private and none of the government’s business.

A 1782 incident demonstrates the prevailing consensus:

An author had placed an article in a Philadelphia newspaper criticizing state government. Hearing that the editor had revealed the name of the critic to the governor (then William Moore), another writer accused the editor of “treachery.”

The editor felt compelled to respond. He explained that, although the governor had asked for the critic’s identity, the governor had asked for it only, “if you are at liberty to mention his name.”

In response to the governor’s request, the editor then asked the author whether the editor had permission to reveal his identity. The author responded, “You are at liberty to give my name to his excellency.” Only then did the editor disclose it.

This story shows how zealously author privacy was guarded during the Founding Era. Everyone assumed that freedom of the press incorporated a presumption of non-disclosure, even if the author had not asked to be kept anonymous. Editors and printers, as well as government officials, were subject to this norm.

Reading the historical record left me with the conviction that the Founders would have found mandatory disclosure of contributors to political advertising an outrageous violation of privacy — and certainly inconsistent with freedom of the press.

Get Members of Congress Out of the Business of Rigging Campaign Rules

Get Members of Congress Out of the Business of Rigging Campaign Rules

Rob at James Madison's home in Virginia
Rob at James Madison's home in Virginia

The Supreme Court’s latest campaign finance decision, McCutcheon v. FEC, has sent up the predictable howls. In McCutcheon, the Court struck down, as violating the First Amendment, certain incumbent-protection rules that Members of Congress had rigged for their own election campaigns.

But no one—including the Court—has yet convincingly addressed a question even more fundamental than the First Amendment issue: On what constitutional basis does Congress have power to regulate federal campaigns at all?

Remember: The Constitution grants the federal government only enumerated powers. If Congress has acted under one of those powers, then First Amendment implications can be important. But if Congress has acted outside its enumerated powers, then the rules of jurisprudence require the courts to void the action without reaching the First Amendment issue.

And, in fact, a careful review of the Constitution and its background demonstrates that regulation of campaigns for federal office is within the state, not the federal, sphere.

The only constitutional authority even remotely applicable to congressional regulation of federal campaigns is the clause the Supreme Court has relied on: Article I, Section 4, Clause 1, the “Times, Places and Manner” Clause—sometimes mislabeled the Elections Clause. It provides:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of choosing Senators.

The first notable aspect about this provision is what it doesn’t say: It grants power to regulate the “Times, Places and Manner of holding Elections for Senators and Representatives,” but says nothing about presidential elections. And with good reason: the “Manner of holding” presidential elections is treated in Article II, where the “place and manner” rules are laid out in some detail and Congress is given some limited authority over the “time” of the election and the counting of electoral votes. All other power over the choice of presidential electors is explicitly left to the state legislatures (“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors . . .”). This is simply not an area for Congress.

The second notable aspect of the Times, Places and Manner Clause is that addresses the “Manner of holding Elections,” but says nothing about campaigns. In the Founders’ understanding, they were different areas of law.

In a 2010 article for the University of Pennsylvania Journal of Constitutional Law, I surveyed what the Founders meant when they referred to regulation of the “manner” of election. (Justice Thomas cited this article in a case last term.) Such regulation did not cover campaigns at all, unless election-day bribery be considered a form of “campaigning.” Rather, regulating the “manner” of election meant determining the rules of the vote: Whether candidates were chosen by a plurality or majority, the rules of voter registration, whether the ballot was secret or vice voce, how votes were tabulated, and so forth—the same kind of detail set forth in Article II for presidential elections.

In the Founders’ understanding, the regulation of the “manner of election” and the governance of campaigns were distinct areas of law. The latter area included rules against corrupt practices and defamation, and the Constitution left those topics to the states to govern. There is no evidence—none—that the Times, Places and Manner Clause was designed to empower Congress to regulate its own campaigns.

Quite the contrary: As believers in the “public trust” theory of government, the Founders were keen to avoid the conflicts of interest that congressional regulation of federal campaigns would entail. In fact, even the very limited authority granted to Congress by the Times, Places and Manner Clause was controversial. Admirers as well as opponents of the Constitution criticized it.

In one respect, advocates of stricter regulation are correct: Because the Court has extended its First Amendment jurisprudence so tightly over state election laws and state defamation laws, the Court has impeded the states’ ability to experiment with different formulas so as to learn what works best. Perhaps the Court should lighten up in that area, while keeping Congress and the President out of the business of regulating federal campaigns.

One last note: A few advocates of greater congressional power over federal campaigns have cited my writings on public trust to argue that campaign finance laws promote fiduciary responsibility.

But a fundamental rule of fiduciary responsibility is avoiding conflict of interest. For members of Congress to pass laws restricting their opponents’ campaigns is a huge conflict of interest. That’s one reason the Constitution leaves governance of federal campaigns to the states.

Rebutting the Claim that an “Anti-Corruption” Principle Should Re-Write the First Amendment

Rebutting the Claim that an “Anti-Corruption” Principle Should Re-Write the First Amendment

2013-0414 RGN Law professors are overwhelmingly left-of-center, and they spend an undue amount of time trying to justify nearly unlimited federal power. Sometimes they torture constitutional history to do so.

For example, several have long asserted that the Constitution’s grant of power to Congress to regulate “Commerce” was designed to grant  authority to regulate the entire economy—or even all social relations. This silly argument has been disposed of multiple times (see this article and its footnotes), but it keeps emerging in articles whose authors are ignorant, or disregardful, of prior rebuttals.

Similarly, statists have portrayed the Necessary and Proper Clause as an “elastic clause,” giving Congress “vast power.” This despite the fact that copious Founding Era evidence shows that the Necessary and Proper Clause was designed to be a rule of interpretation that actually granted no authority additional to that already conferred.

The most recent series of incidents involve writings by law professors trying to justify Congress in dictating campaign finance rules. These professors argue that the Constitution contains a generalized “anti-corruption principle,” and that we should interpret the First Amendment through that principle. The principal promoters of this argument have little background in originalist research.

Professor Seth Tillman (who has a great deal of background in originalist research) has written a new essay, supported by a detailed underlying article, devastating their assertions. Just to quote one example of Professor Tillman’s comments:

Let’s be clear. Lessig and Teachout are asking us to embrace corruption as the key concept espoused by the Framers of the Constitution (and of the Bill of Rights). But when the Framers had a chance (actually multiple chances) to give this concept prominence in the Constitution’s actual text, the Framers chose not to do so. It is not as if they forgot to use this term or, instead, used some close synonym; rather, they actively took this term out of the Constitution. So why should we today embrace the corruption concept as one having constitutional scope or dimension? And, more importantly, how can Lessig or Teachout ask us to do so as an exercise in originalism or in the name of the long-dead Framers? (emphasis added)

I’ve been chagrined to see my own writings cited in some articles promoting the “anti-corruption principle” claims—most often my 2004 article, The Constitution and the Public Trust. Its heavily-documented thesis was that the Founders believed that government should be conducted on fiduciary principles, and that the Constitution’s phrases should be read with that understanding. But I never suggested those principles should trump constitutional text.

Anyway, trust principles actually cut against congressional campaign finance regulation, not in favor of it. This is because it is a clear conflict of interest for a Congress of incumbents to regulate the campaigns of candidates running against them.

Moreover, the Founders were conscious of this conflict of interest, and explained how it should be handled. During the ratification debates advocates of the Constitution expressly represented that Congress’s power (Art. I, Sec. 4) to regulate the “Manner of holding Elections” should be interpreted in a very limited way. I document all this in a more recent article (cited by Justice Thomas last term). That article concludes that the Constitution’s “Manner of holding Elections” referred only to subjects such as the type of ballot and the votes necessary to win. It did not extend to regulation of campaigns, except for bribery in the actual conduct of the polling. Regulation of federal campaigns was consciously left to the states, including state laws against defamation and corruption.

It should not be necessary for serious scholars like Professor Tillman to have to spend time rebutting what historians contemptuously refer to as “law office legal history”—that is, special pleading in historical garb. But the propaganda power of the law professoriate is considerable. So, regretfully, it is necessary.

Thanks to Professor Tillman for his work.

Federal "Campaign Finance" Laws are Mostly Unconstitutional

Federal "Campaign Finance" Laws are Mostly Unconstitutional

061712  RGN ThirlmereIn a recent posting, I wrote:

[I]t is dubious whether the Constitution even gives Congress power to regulate the source and amount of campaign contributions and expenditures. The background and meaning of the Constitution’s “Time, Places and Manner Clause”—which Congress uses to justify such laws—strongly suggests not.

The Time, Places and Manner Clause is Article I, Section 4, Clause 1. It reads as follows:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of choosing Senators.

Note that this provision grants Congress some authority to regulate congressional elections; it grants no power to regulate presidential or vice-presidential elections. The authority to oversee the choice of presidential and vice-presidential electors is reserved mostly to the states within the regulations in Article II, Section 1, and some other constitutional provisions. (A 1934 U.S. Supreme Court opinion to the contrary, Burroughs v. United States, is apparently based on the long-discredited “inherent sovereign power” doctrine, and clearly erroneous.)

About three years ago, I researched the original meaning of the Time, Places and Manner Clause. I examined the records surrounding adoption of the Constitution and contemporaneous election laws and other documents. I learned that the Founders understood the power to regulate the “time” of an election as authority to fix election days and hours and the length of the term of office. Since the terms of Senators and Representatives are fixed elsewhere in the Constitution, congressional authority to set the “time” of a congressional election means only to fix the days and hours.

I further learned that “place” referred to the location of voting and the districts from which candidates were to be elected. The Constitution also limited somewhat congressional authority to fix the “place” of a congressional election.

Finally, the Framers coined the phrase “Manner of holding elections” to refer to other voting mechanics. Under this phrase, Congress can determine such issues as whether voting is by closed or open ballot, whether a candidate needs a majority or merely a plurality to win, how the votes are counted and protected, and punishment for election-day misconduct, such as bribing election officials.

The historical record was clear that only the states, not Congress, were to govern campaign practices and finance. The states duly proceeded to do so through their criminal codes, their election laws, and their rules pertaining to slander and libel.

The Framers deliberately kept the scope of Congress’s Time, Places and Manner Clause rather narrow, because of the inherent conflict of interest in allowing Congress to regulate its own selection procedures. Many advocates of the Constitution represented that the power to regulate the “Manner of holding Elections” would mean only that the federal government could conduct a congressional election in case state officials were unwilling to so or (perhaps due to invasion) unable to do so.

When my article was published in the University of Pennsylvania Journal of Constitutional Law, I was unaware that any modern court had competently reviewed the subject. Just this past week, however, David Keating, the President of the Center for Competitive Politics, brought my attention to Vannatta v. Keisling, a 1997 Oregon Supreme Court case that explored the meaning of the phrase “manner of regulating, and conducting elections” in its own state constitution. That phrase obviously parallels the U.S. Constitution’s Time, Place, and Manner Clause. And it originates from an era when U.S. constitutional terms were generally better understood than they are today.

The Oregon Supreme Court concluded that the phrase granted no power to regulate campaigns:

If one were to utilize the modern definition of “election” as a “process,” there would be room for the Secretary of State’s argument for a sweeping interpretation of the word “elections” in [the Oregon constitution] because the “process” contemplated by the section could be deemed to be the entire electoral adventure, from the announcement of candidacy through the canvassing of election returns. However, the constitutional provision that we construe here was proposed in 1857, not in 1996. A dictionary relevant to that time gives a more limited definition of the word “election”: “The act of choosing a person to fill an office or employment, by any manifestation of preference, as by ballot, uplifted hands or viva voce[.]” Webster’s American Dictionary of the English Language (1828).
The dictionary on which we rely has no definition of “campaign” that corresponds to the present-day use of that word as a description of the effort to obtain public office or to obtain the passage of an initiated or referred measure. The concept of that time closest to what we now term “campaigning” was “electioneering,” which Noah Webster defined as “the arts or practices used for securing the choice of one to office.” Webster’s American Dictionary of the English Language (1828). It thus appears that, whatever the degree of their overlap today, the ideas of “electioneering” and “elections” were somewhat distinct at the pertinent time, viz., at the time that the Oregon Constitution was created.

Hence: One more fragment of evidence tending to show that incumbent Congressmen’s efforts to protect their own seats by “campaign finance reform” are flatly unconstitutional.