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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. 

A Liberal Supreme Court Majority Grants Businesses Bill of Rights Protection

A Liberal Supreme Court Majority Grants Businesses Bill of Rights Protection

Rob Natelson at St. Paul's Cathedral, London
Rob Natelson at St. Paul's Cathedral, London

Atop St. Paul's Cathedral, London: 10 years later
Atop St. Paul's Cathedral, London: 10 years later

This article was first published on the American Thinker website.

Some on the left now argue that only individuals—not businesses or business associations such as corporations—should enjoy First Amendment rights. To be sure, their argument contradicts decisions made, not just by the current centrist Supreme Court, but also by “progressive” Supreme Court majorities throughout the 20th century.

If it were true that businesses have no First Amendment rights, then they should have no Fourth Amendment protection either. In other words, businesses and corporations should not be able to challenge government searches and seizures. After all, the speech and press clauses of the First Amendment protect “the freedom of speech” and “the freedom of the press” without regard to who is speaking or writing. But the Fourth Amendment protects only “the people,” not businesses or organizations.

Yet a Supreme Court decision issued this week, City of Los Angeles v. Patel, clearly assumes that the Fourth Amendment protects businesses and organizations, not just individuals.

The case was brought by a group of plaintiffs. They included individual hotel operators—business people, in other words. They also included a lodging association—that is, an entity. The plaintiffs challenged a City of Los Angeles ordinance that required hotels to gather certain information about their guests and make it available to the police upon police request.

The Court proceeded on the assumption that hotels have a Fourth Amendment right to protect their registration records. The Court ruled that the ordinance was unconstitutional on its face, because the ordinance did not provide for review by an impartial magistrate before the hotel was forced to turn over its records to the police.

There’s more: The five-justice majority protecting the hotel businesses encompassed all the Court’s most liberal justices. Justice Sotomayor wrote the decision, which was joined by Justices Ginsburg, Breyer, and Kagen. Also in the majority was Justice Kennedy, a centrist.

The four more conservative justices (Roberts, Alito, Scalia and Thomas) all dissented. But they did not dispute the assumption that the Fourth Amendment protected businesses and business organizations. They argued only that police searches authorized by the city ordinance were “reasonable” and therefore in compliance with the Fourth Amendment.

If all the Court’s most liberal justices believe businesses and entities are covered by a part of the Bill of Rights that, by its terms, applies only to “the people,” then there would seem to be no basis for denying businesses the protection of the rest of the Bill of Rights as well.

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.

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.

The Supreme Court’s Citizens United Corporate Campaign case Should Be Controversial—But Not for the Reason You Think

The Supreme Court’s Citizens United Corporate Campaign case Should Be Controversial—But Not for the Reason You Think

RGN Montpelier '07

If you have any doubt about the ability of the political Left to set the agenda in this country, look at the controversy over the Supreme Court’s 2010 Citizens United corporate campaign finance case.

What most people have heard about the case is that it “allowed corporations to spend unlimited amounts in federal elections,” a ruling the extreme left considers controversial. (The Court voided a section of federal campaign law.) But we rarely hear that the Court upheld only the rights of corporations to spend independently of the candidates—and that the justices left in place the part of federal law that bans corporations from donating to candidates.

And we never hear that, over the dissent of Justice Thomas, Citizens United upheld federal requirements that corporate campaign expenditures be publicly disclosed. The Left does not consider that part of the decision to be controversial.

Yet from an objective constitutional point of view, the Court’s decision protecting corporate First Amendment rights is far more defensible than its decision upholding the disclosure requirements.

First, it 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, Place and Manner Clause”—which Congress uses to justify such laws—strongly suggests not.

Second, the position of the more extreme leftists—that corporate speech is not protected by the First Amendment—is absurd to anyone who has studied the evidence. The position is inconsistent with the plain language of the First Amendment, which does not discriminate according to who is speaking. It is inconsistent with the Founders’ understanding of the terms “freedom of speech” and “freedom of the press.” It is factually inconsistent with the guarantee of a free press, because, of course, most newspapers and broadcast stations are incorporated. And it is inconsistent with decisions of the Court itself—particularly those written by “progressive” justices—that have upheld the First Amendment rights of corporations such as the New York Times and the NAACP.

Third, the position that “freedom of speech” is severable from spending money getting out your message is similarly absurd: Every communication except, perhaps screaming on the street corner, requires expenditure to be effective. Microphones have to be purchased. Writers have to be employed. Advertising space and time has to be bought. And so on.

We spend public time discussing such ridiculous arguments only because the Left is able to put them on the public agenda.

We would do far better talking about the other part of the Citizens United opinion—the part concluding that anonymous speech is not protected by the First Amendment. That is the much more questionable part of the decision.

Anonymous and pseudonymous expression was part of what the founding generation meant by “freedom of speech” and “freedom of the press.” Anonymous and pseudonymous essays were central to the debate over the Constitution itself. The Federalist Papers, the most famous product of those debates, were written under a pen name. So were most of the other important articles and pamphlets arguing for or against the Constitution.

There were, and are, a several good reasons why people wish to make their arguments without their names being known.

* They may wish their arguments to be considered on their merits without being dismissed because of who wrote them. During the Founding Era, this was commonly given as a reason for anonymity. It is a particularly important consideration today, when publicists have become experts at destroying the credibility of perfectly good arguments by vilifying their authors.

* Writers may fear retribution from unscrupulous and powerful persons and interest groups. This, also, is a very modern concern.

* Writers may wish to participate marginally in politics without letting it consume their lives. Anyone who has been flooded with phone calls from reporters knows how disruptive that can be. Forcing people to disclose their names discourages all from participating who do not wish to become public figures.

What if an anonymous author abuses the First Amendment by hiding behind his anonymity to slander others? The Founding Generation had a good answer to that: the law of defamation. If the plaintiff had a decent case, he could sue the publisher of the article, and force the publisher to disclose the writer.

But occasional instances of abuse do not justify disclosure of those who are innocent of abuse.

In a fairer world, Citizens United would be a controversial case. But not because of the no-brainer ruling that people don’t give up their First Amendment rights when they incorporate. What would be controversial would be the Court’s refusal to protect the First Amendment right to contribute to the public debate without having one’s life destroyed.

One more point: Highlighting the corporate contribution part of the decision while ignoring the rest serves the purpose of inaccurately portraying the Court as “conservative.” But that’s a topic for another time.