R.I.P., Publius: SOS Miller, AG Masto, target party’s opponents

Campaign finance laws let state officers use lawsuits to chill political speech

By Steven Miller
  • Tuesday, May 7, 2013

Part III

For the first 200 years of the American Republic, the First Amendment was generally believed to mean precisely what it says:

Congress shall make no law … abridging the Freedom of Speech…

Then, in the late 19th Century, the so-called “progressive” movement arose, infatuated with Prussia and the way it controlled and “guided” its subjects.

Increasingly, some members of Congress caught the virus and began adopting U.S. progressivism’s core notion — that, to the extent that the U.S. Constitution’s protections for individual human rights could somehow be evaded, the politicians and their advisors could similarly “guide” Americans and thus create a better world.

In the ensuing conflict between the Bill of Rights and the progressives’ agenda, a decisive number of federal politicians — as so frequently the case — positioned themselves as “moderates” in the controversy, “practical” men who would listen to and smile upon both sides.

And they duly achieved a “practical,” if hypocritical, solution: It was to split the difference, overtly going with the flow of progressivist passion, while passing only weak enforcement mechanisms. This ensured that the bills passed were, practically speaking, largely non-events. Only a small, politically negligible population of classic-liberal intellectuals would note the repudiation in principle of the First Amendment.

For the next six-plus decades, the pattern remained essentially the same. The Tillman Act of 1907 prohibited corporations and interstate banks from directly contributing to federal candidates. Then, in 1910 and 1911, disclosure requirements and spending limits for House and Senate candidates followed. General contribution limits were part of the Federal Corrupt Practices Act of 1925, while the 1939 Hatch Act imposed ceilings on political parties’ campaign expenditures and individuals’ campaign contributions. And in 1943 and 1947, the ban on corporate contributions was extended to unions by the Smith-Connally and Taft-Hartley acts.

All these transgressions against the clear wording of the First Amendment were passed with a wink and a nod — namely, being designed to be largely ineffective.

However, hypocrisy always has a cost, and those costs accumulate.

By the coming of the presidency of Richard Nixon, Congress had in place decades of precedent for trampling upon the First Amendment. At the same time, the Democratic Party — firmly in control of Congress — suddenly had a new and especially pressing reason to do so: It was deeply in debt and fearful for its future.

The 1968 presidential election had demonstrated the increasingly decisive impact of television broadcasting. Yet its costs were high and Democratic party leaders believed that Republicans, with greater business-community support, could better afford those high costs. Immediately, therefore, a task force was formed to study campaign financing and identify strategies to ensure the party’s continued dominance.

One such strategy called for compelling broadcasters to sell federal politicians air time at rock-bottom rates, and that became part of legislation Congress passed in 1970. However, Nixon vetoed that bill, saying it was unfair to impose cost controls only on broadcasters, and Senate Democrats were unable to muster an override.

A year later, after much negotiation, federal politicians of both parties found common cause on a law that would 1) assure them of federally compelled low TV advertising rates while also 2) amplifying their advantages, as incumbents, over challengers. The legislation was called the “Federal Election Campaign Act of 1971.” FECA was then signed into law by Nixon, that paragon of campaign-finance rectitude.

Clear on the law’s utility for suppressing active political dissent, the Nixon administration almost immediately deployed it in federal court. The U.S. Justice Department, led by John Mitchell, filed for an injunction against the National Committee for Impeachment, which had placed an ad in the May 31, 1972, issue of The New York Times. As described in a 1972 law review article, the ad was titled “A Resolution to Impeach Richard M. Nixon as President of the United States” and

… listed various officers, sponsors and attorneys of the National Committee and contained two contribution coupons soliciting public donations. Reprinted in the advertisement was the text of House Resolution 976, introduced into Congress on May 10, 1972, calling for the impeachment of President Nixon for his alleged unconstitutional usurpation of Congress’ war making powers by virtue of his conduct of the war in Vietnam.

A little over two weeks later, Nixon’s “plumbers“ were caught inside Democratic National Committee headquarters at the Watergate complex. The administration’s “Committee to Reelect the President,” often called CREEP, was then revealed to be funneling illegal corporate contributions into slush funds, paying for break-ins and trading cash for favors. On Aug. 9, 1974, Nixon resigned in disgrace.

In the aftermath of the affair, Congress amended the 1971 law in multiple ways. And while a shifting U.S. Supreme Court majority found unconstitutional the new FECA’s attempt to regulate some discussion of public issues, its basic holdings in Buckley v. Valeo were still a disaster for freedom of speech: No majority formed to simply defend the plain meaning of the First Amendment.

Instead, the Buckley majority chose to pretend that, while the Constitution technically bars Congress from passing any law “abridging the freedom of speech,” it nevertheless allows Congress to do so in practice — by levying upon core political speech all kinds of burdensome rules and additional costs. Why? To guard against even “the appearance” of possible corruption, said the Court.

It was a direct assault upon the clear meaning of the First Amendment.

Indeed, the definition of abridge leaves no doubt: Merriam-Webster’s online dictionary defines it as “to make less in extent or duration,” and gives as an example, “the library’s hours have been drastically abridged to cut costs.” It further includes as synonyms: abbreviate, curtail, cut back, dock, elide and truncate.

Undoubtedly, therefore, the rules and costs imposed by Congress in FECA and thereafter necessarily shrink the number of citizens who can afford to actively take part in federal elections, either as candidates, contributors or simply as citizens attempting to bring important issues before the public.

In essence, Congress imposed, and the U.S. Supreme Court endorsed, a heavy new tax — and a regressive one at that — upon Americans who seek to participate in the nation’s decision-making process. And, as the Court itself once observed, early in the nation’s history: “the power to tax involves the power to destroy.”

Here in Nevada, the inherently dangerous precedents in Buckley and later decisions were lobbied into state law in 2011 by Secretary of State Ross Miller. Then last year, when partisan Democrats and left-wing Internet activists complained about a conservative organization criticizing a Democrat state lawmaker, Miller and Attorney General Catherine Cortez Masto — both Democrats — filed, in Nevada’s First Judicial District Court, a complaint based on those 2011 changes in Nevada law.

Currently the state is targeting the Nevada chapter of Americans for Prosperity for three 2012 mailers that criticized the legislative record of Kelvin Atkinson, then an assemblyman and now a state senator. However, the state’s complaint appears to completely ignore the limits set on such prosecutions by the U.S. Supreme Court.

The Buckley decision had drawn an artificial line between issue advocacy, which was not to be regulated, and express advocacy — urging people to “vote for,” “vote against,” “elect,” or “defeat” a clearly identified candidate — which was to be regulated, and treated as a campaign contribution.

Later, in Federal Election Commission v. Wisconsin Right to Life, the Court further reduced the domain of free, unregulated political speech by expanding its definition of express advocacy to include ads that were held to be “functionally equivalent” to the “magic words” identified in Buckley.

However, in that 2006 decision, to avoid complete and immediate destruction of the First Amendment, the Court repeatedly emphasized that for an advertisement to be classed as “functionally equivalent” to express advocacy, there must be no other reasonable interpretation of the ad than to vote for or against the politician[s] named. And so it vacated, as unconstitutional, a portion of the McCain-Feingold act, also known as the Bipartisan Campaign Reform Act of 2003.

Said the ruling opinion, written by Chief Justice John Roberts:

Because [these] ads may reasonably be interpreted as something other than an appeal to vote for or against a specific candidate, they are not the functional equivalent of express advocacy …. To safeguard freedom of speech on public issues, the proper standard … must be objective, focusing on the communication’s substance rather than on amorphous considerations of intent and effect…. It must entail minimal if any discovery, to allow parties to resolve disputes quickly without chilling speech through the threat of burdensome litigation…. And it must eschew “the open-ended rough-and-tumble of factors,” which “invit[es] complex argument in a trial court and a virtually inevitable appeal.” … In short, it must give the benefit of any doubt to protecting rather than stifling speech.

In light of these considerations, a court should find that an ad is the functional equivalent of express advocacy only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate. (Emphasis added.)

In the Nevada case, exhibits included with the Miller-Masto complaint — fax copies of the actual mailing sent by AFP to voters — plus the state’s descriptions of those mailings in its brief, strongly suggest that the AFP mail pieces do, in fact, meet the Supreme Court’s test for genuine issue ads and are not cases of express advocacy.

Articulating that test, the Court said the Wisconsin Right to Life mailings met that standard because:

First, their content is consistent with that of a genuine issue ad: They focus and take a position on a legislative issue and exhort the public to adopt that position and to contact public officials with respect to the matter.

Second, their content lacks indicia of express advocacy: They do not mention an election, candidacy, political party, or challenger; and they take no position on a candidate’s character, qualifications, or fitness for office.

Likewise, the AFP flyers in Nevada also focused on a legislative issue — legislation introduced by Atkinson that would boost electricity costs for Nevada ratepayers — and exhorted voters to “Call Assemblyman Atkinson at (702) 457-9995. Tell him it is time to represent Nevada working families.”

Secondly, the mail pieces mentioned no election, candidacy, political party or challenger. Nor did they take a position on Kelvin Atkinson’s character, qualifications or fitness for office.

Nevertheless, the Nevada attorney general and secretary of state assert, in the complaint they filed with the First District Court, that each of those AFP flyers “constitutes express advocacy.”

It is true the flyers were not flattering to Atkinson, but that is not the test for express advocacy. Each of the mail pieces stated that Atkinson’s bill “would have cost NV Energy rate payers $1 billion” and asserted that, “A billion dollar increase is only a small amount to Kelvin, but Nevadans are struggling ....” Also, the last of the mail pieces showed the capitol building in Carson City, with the words “backroom deals,” “lobbyists,” “insiders” and “special interests” superimposed upon it.

But nowhere in the state’s complaint is there any legal argument or evidence to support the allegation that the AFP flyers constitute express advocacy. Apparently, the mere fact that they arguably portrayed a politician negatively was deemed sufficient. But to make that assumption, Miller and Masto had to entirely ignore what the flyers do expressly advocate: that people contact Atkinson and tell him to attend to the concerns of working families.

The complaint filed by the attorney general and secretary of state asks the court to levy multiple $5,000 fines on the organization:

For each “failure to register as a non-profit” or, alternatively, for “failure to register as a political action committee”;

For each “failure to file [contribution and expense] Report #2”;

For each “failure to file [contribution and expense] Report #3.”

Additionally, it asks that the court compel AFP to pay the state’s attorney fees and costs, and order the organization to register as a nonprofit or a PAC, and file the C&E reports.

All of the state’s requests, however, hinge on whether or not AFP’s flyers actually constitute “express advocacy.” But, under the test offered by the Supreme Court — the ultimate current authority on express advocacy — it is difficult to see how the flyers might qualify.

Which leads inevitably to the question: Is this just politics? Are two of Nevada’s constitutional officers intentionally subjecting AFP to what the Supreme Court called “amorphous considerations of intent and effect” for the purpose of what the Court called “chilling speech through the threat of burdensome litigation”?

Former FEC chairman Bradley A. Smith notes that the initials of the “Bipartisan Campaign Reform Act” — “BCRA” — are frequently said to really stand for, “Before Campaigning, Retain Attorney.”

Yet, for America’s current political class to have made the exercise of freedom of speech contingent on hiring expensive legal beagles, is a complete perversion of the Founders’ intent — and practice. Our political process was designed to be freewheeling and open. Today, however, campaign-finance laws increasingly attack the heart of that system, restricting and burdening participation.

Here in Nevada, suppression of your First Amendment political rights is now the rule, under the fig leaf called campaign-finance reform. And increasingly this new system reveals itself as merely a happy hunting ground for cynical pols and scalp-hungry prosecutors, wielding casually misinterpreted law.

The right to speech entails the right to fund speech or its distribution. It also entails the right to speak and write under a pseudonym, if that — as with Madison, Hamilton and Jay — may be your choice.

Speaking of that trio, they must today be spinning in their graves.

Rest in peace, Publius.

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

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