R.I.P., Publius: First Amendment no longer protects all political speech

SOS Miller sees extensive use of freedom of speech rights as a problem

By Steven Miller
  • Tuesday, April 23, 2013

Part II

What has happened to the First Amendment?

Its actual wording — Congress shall make no law…abridging the freedom of speech… — is a prohibition as absolute as can be conceived.

True, its domain has always been citizens’ political expression — which excludes utterances outside that area: obscenity, fighting words, incitement, threats, etc.

But even political expression, for the last 40 years, has been repeatedly assaulted by Congress, most notably with the Federal Election Campaign Act of 1971, amendments to it in 1974, 1976 and 1979, then the McCain-Feingold so-called “Bipartisan Campaign Reform Act” of 2002.

The fig leaf that the pols in Congress have always hidden behind — along with a frequently wobbly U.S. Supreme Court — is avoiding possible political corruption.

In other words, congressional politicians can ignore the plain language of the First Amendment and burden Americans with laws that abridge — common synonyms include cut, reduce, shorten, diminish and curtail — freedom of speech if they suppose that the laws could discourage “corruption or the appearance of corruption.”

Is that not an argument that Vladimir Putin would find congenial?

The reality, of course, is that it is the expansion of American government itself that most multiplies the possibilities and incentives for federal office holders to become corrupt — and for the corrupt to seek federal office.

As Lord Acton observed, it is power that tends to corrupt, and absolute power that corrupts absolutely. But that particular source of corruption — almost certainly even more dangerous to the American republic than bribery — is a subject upon which Congress prefers to stay mum.

To acknowledge it, after all, could — to the extent the public listened — endanger every senator’s or congressman’s own power, the precious fruit, so beloved in Washington, D.C., of many previous forays by Congress, over the decades, into extra-constitutionality.

Staying quiet, on the other hand, allows one to continue profitably participating in what has become the federal government’s main business: taking the wealth created by some and bestowing it upon someone else — preferably one’s allies.

On such a skewed playing field, the whole sting goes much more smoothly for incumbents when the political expression of non-conforming citizen activists can be curbed. Thus the widely recognized incumbent-protection character of the McCain-Feingold law, more officially named the “Bipartisan Campaign Reform Act of 2002.”

In many states, including Nevada, professional politicians — most likely because they are professional politicians — have adopted this tainted federal system as a congenial model for their own state laws.

Here, Secretary of State Ross Miller has been the most aggressive, introducing in the last three legislative sessions an entire blizzard of new laws. As documented in Part 1 of this series, legislation he pushed through the 2011 session struck directly at every Nevadan’s right to speak as freely as did the Framers of the American Constitution during the country’s founding.

When Miller testified before the Assembly Legislative Operations and Elections Committee in March 2011, lawmakers questioned some of his proposals for restricting political advocacy. Miller, however, either ducked the questions or gave reassuring, but misleading, answers.

Assemblyman Cresent Hardy, for example, expressed concern that Miller’s bill — AB 82, recycled from the 2009 session — was redefining PACs, or political-action committees, too broadly:

During my candidacy, a number of individuals from a family gave me small contributions. Would these people have to register as a political action committee? Am I reading that wrong?

Hardy also noted that Miller’s legislation sought to make such small groups regularly file PAC reports with Miller’s office, signed under penalty of perjury by a representative of the group. Also in the bill were stiff financial penalties, should any of the groups his bill newly defined as “PACs” be tardy with their reports.

“How small or large does that group have to get?” asked Hardy. “If the contribution was over $100 and a family group made the donation, would they qualify as a PAC?”

Miller never answered the question. Instead, he changed the subject — away from his new definition for PACs to the topic of individual contributions and how his legislation now required every contribution over $100 to be reported.  

What Assemblyman Hardy had identified, however, was and remains a genuine problem in the language of AB 82. Nevertheless, neither Hardy nor any other lawmaker ever followed up on the matter, and the language requiring such groups to register with the state became law.

Consequently, NRS 294A.0055 today defines “committee for political action” as:

1. “Committee for political action” means any group of natural persons or entities that solicits or receives contributions from any other person, group or entity and:   

(a) Makes or intends to make contributions to candidates or other persons; or   

(b) Makes or intends to make expenditures,

[that are] designed to affect the outcome of any primary election, primary city election, general election, general city election, special election or question on the ballot. (Emphasis added.)

The word expenditure, in (b) above, has a technical significance in campaign-finance law: It refers to people spending to express their First Amendment rights to help select their elected representatives, to weigh in on those representatives’ behavior or to weigh in on ballot measures.

Thus, Rebecca Gasca, of the ACLU, told the Assembly committee that Miller’s broad inclusion of such groups in his new definition of PACs — making them all subject to his new mandatory reporting and registration requirements, penalties and fines — was “quite problematic from the First Amendment point of view.”

She noted that  sections 48, 54, 56, 62, 71 and 72 of the final version of AB 82 — now codified in Nevada law — saddle almost any Silver State residents who seek to exercise their First Amendment rights with complex state reporting requirements, felony perjury penalties and — if reporting deadlines are missed — stiff fines.

Thomas Cornell, representing the Libertarian Party of Nevada, focused on the unbridled power that Miller’s legislation gave the secretary of state’s office. “What really bothers me about this bill,” he said, “is the authority [that Miller] or his office would have to go on witch hunts, to raise fees and penalties, and most importantly to intimidate the rank and file, the average person, the man on the street, from participating in the political arena.”

Assemblyman Hardy also spotlighted provisions in another bill requested by the secretary of state, Assembly Bill 81.  Section 37 of that bill denies free-speech anonymity to anyone who advocates the election or defeat of a politician and spends “more that $100” or “has an Internet website available for viewing by the general public or … sends out an electronic mailing to more than 500 people.” 

“This provision,” Miller assured the Assembly lawmakers, “is borrowed entirely from federal statutes currently in place.”

That, however, is not what the Federal Election Commission, the chief regulator of federal elections, says. The FEC’s website has a frequently-asked-questions (FAQ) section where this question on Internet communications is explicitly posed and answered:

FEC: Can I use my computer for political activity in connection with federal elections?

How about a library computer, school computer, or neighbor’s computer?

Yes. An uncompensated individual or group of individuals may engage in Internet activities for the purpose of influencing a federal election without restriction. The activity would not result in a “contribution” or an “expenditure” under the Act, and would not trigger any registration or reporting requirements with the FEC. This exemption applies to individuals acting with or without the knowledge or consent of a campaign or a political party committee. (Emphasis added.)

Miller insisted to lawmakers that the purpose of his regimen of campaign-speech controls was “ensuring and maintaining” the “integrity of our election system,” which, he said, “relies on transparency and accessibility… Without public confidence in that integrity, participation decreases and democracy becomes less effective.”

Multiple witnesses, however, told legislators that conditioning Nevadans’ First Amendment rights upon obedience to Miller’s new laws and regulations will actually suppress citizen political activity.  

Janine Hansen noted that the 2007 Nevada Legislature — seeing attacks and harassment experienced by $100 contributors to California’s Prop 8 initiative campaign — had raised Nevada’s reporting floor from $100 to $1,000. Now, however, she pointed out, Miller was asking the Legislature to reverse itself.

“These laws suppress participation for challengers and third parties,” said Hansen, “because people are intimidated and afraid to give money … because they may then not be viewed favorably by those who get elected.”

The low $100 reporting floor especially penalizes third parties and candidates who challenge powerful political insiders, she said.

“I will give you an example,” said Hansen. “When I was running a campaign last time, I would ask for contributions, and people would say, “What is the limit?” I would say “$100,” and they would say, “I do not want anyone to know I gave.” So they would give only $100. For third parties and challenge candidates, the $100 limit makes it almost impossible to raise enough money to be a real challenger in a campaign. People will not give money, even though they support a candidate, because they do not want to be listed on a contribution report. They are afraid of the consequences from their employers or someone else.

“The real result of the $100 limit is that it helps incumbents. It discriminates against third party minor candidates and nonmajor candidates because they cannot raise the money they need due to the discrimination and persecution which takes place when people donate to them.”

Most of the criticisms of his proposed regimen of controls over campaign advocacy were met by Miller with simple assertions and denials:

This is not an issue of putting cumbersome requirements on people. This is a requirement if $100 is spent for the purposes of financing a communication related to an election, you have to disclose from whom it came…

We are not blazing the trail on the debate here between free speech and whether we can restrict this practice by putting this legislation in place…

This is not a controversial area of debate as to whether this is improper infringement on free speech…

Or, Miller would assert that “anonymous messaging” constituted “clear abuse”:

The proposal is reasonable and addresses clear abuse in Nevada campaign practices of anonymous messaging through the mailbox and on websites or political advertising by other methods. This language would require a person, a PAC, a political party or a committee sponsored by a political party to file a statement…(Emphasis added.)

However, when faced with arguments based on the First Amendment’s virtually absolute proscription of laws regulating speech, Miller professed to be at a complete loss:

I do not know what to say in response to the statements made that the government should not be in the business of mandating campaign finance, that we should abolish all of these measures, and it is none of the people’s business who is financing the campaigns of our elected officials….  

Significantly, Miller never addressed the clear precedents provided by the Framers of the American Constitution themselves. Janine Hansen, however, was happy to cite them:

Probably the most notable Founding Fathers who were in a dirty campaign were Thomas Jefferson and John Adams, and of course they did not have to report their campaigning to the Secretary of State.

In the long run, free speech prevailed and those campaigns brought us more liberty.

Hansen also noted another disturbing facet of Miller’s legislation: that it changed the law to give him new authority to launch investigations of Nevadans for possibly having the wrong “intent” — specifically, contributing to a PAC “with the knowledge and intent” that one’s donation to a PAC, combined with one’s personal donation to a candidate, would exceed the state’s statutory limit on individual donations to candidates.

Given the broad re-definition of PACs described earlier, the passage of AB 81 thus authorizes Miller, or any future secretary of state, to officially launch inquiries into the mindset of virtually any Nevadan who seeks to exercise his or her First Amendment rights in concert with others.

Two arguments for placing Nevadans’ free-speech rights under Miller’s regulation appear to have been most effective with lawmakers:

The first has already been explored — the claim that abrogating individuals’ anonymous free-speech rights constitutes part of “transparency.”

The second was that some of the lawmakers’ constituents simply object to receiving advocacy mail from people they don’t know. But is some voters’ dislike of political advertising by individuals and groups they don’t know ever a sufficient reason to abort other individuals’ First Amendment rights?

Any problems existing here, after all, are either non-existent or self-curing:

First, for unwanted messages, simple solutions already exist — wastebaskets or the TV remote’s mute button.

Second, the reality is that all political ads, anonymous or not, already meet with voter skepticism.

Third, mailers become increasingly cost-INeffective and self-defeating as allegations become more extreme and as the flood increases.

Fourth, anonymous ads already face a much higher credibility threshold with intelligent voters and media watchdogs. They must therefore rely entirely on the cogency of the evidence they cite or the arguments they advance.

Finally, does history at all suggest we can afford to put politicians and government in charge of deciding who gets to address the voting public and who cannot?

Secretary of State Miller clearly sees extensive use of anyone’s First Amendment rights as a problem — as over-use. Speaking to senators, he said, “[t]he definition in A.B. 81 provides a very clear definition of when you advocate sufficiently, you would have to file as a PAC and report your contributions.” (Emphasis added.)

Advocate sufficiently. That is a far cry from the clear meaning of the Bill of Rights. 

Steven Miller is vice president for policy at the Nevada Policy Research Institute. For more visit http://npri.org.

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