Archive for December, 2003

A Little Less Free

Wednesday, December 31st, 2003

It has been said that here are really only two choices with respect to campaign finance reform. Either such “reforms” will be ineffective as people and associations find alternative routes to convey their message and ideas, or they will violate First Amendment protections. Campaign finance reform cannot be successful in its own terms unless there are some messages that people and groups cannot convey under a reform regime that they can now.

In upholding key provisions of the Bi-partisan Campaign Reform Act (BCRA) in McConnell v. Federal Elections Commission (FEC), the US Supreme Court has managed to whittle away at the First Amendment. This is especially true with respect to the provision that prevents third parties from running ads critical of candidates within 60 days of an election.

The Constitution is very unequivocal. The First Amendment explicitly states that “Congress shall make no law … abridging the freedom of speech …or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” It does not say that these rights can be abridged, limited, or constrained if convenient of if some other government purpose is at stake. Usually limitations, if they are upheld at all, must pass severe tests.

There are some forms of expression which fall outside of protected speech. For example, it is constitutional to prevent the announcement of secret troop movements if such an announcement presents a “clear and present danger.” This is a very high standard and does not prohibit even publication of all classified material. The US Supreme Court upheld the publication of Pentagon Papers because the standard is not met.

Other times, governments are allowed to limit the “time and manner” of speech in the name of other government priorities. For example, the National Park Service may grant licenses for protests on public property as a way to address concerns of public safety. However, any such restrictions must be generally applied and must be content neutral. However, the BCRA targets particular speech. It bands the purchase of broadcast “electioneering” ads within 60 days of an election. Such speech is defined as any speech that “refers to a clearly identified candidate for federal office.” There are no restrictions on other types of speech. The content neutrality test is not met.

Moreover, in weighing whether time and manner provisions curtail First Amendments rights, courts must apply “strict scrutiny.” Any time and manner restrictions must serve a compelling interest and must impose the minimum restrictions possible. The Court realized that the under such standard, BCRA would not survive. Instead, in McConnell v. FEC, the majority said it could bypass the necessity of strict scrutiny on First Amendment restrictions to allow Congress “to protect the integrity of the political process.”

This could represent the first step in greater erosion of First Amendment protection. The goal of protecting the “integrity of the political process” is sufficient loose to allow all manner of mischief. Might a future Congress decide to restrict ads that mention a candidate 90 or 120 days before an election instead of just 60 to protect the “integrity of the political process?” Might a future Congress ration the number of press ads, fliers, or e-mails that could advocate the election or rejection of a candidate to protect the “integrity of the political process?” How could this standard be limited to broadcast ads? What if in the future most people receive most of their information from the Internet? Indeed, the BCRA limits communication that is sent via “broadcast, satellite, or cable” and it is not hard to stretch this to cover the Internet. Under the vague standard of protecting the “integrity of the political process” there is no principled way to limit Congress from constraining political spending and hence speech on anything from the Internet to bill boards.

The saddest point is that, if anything, protections on political speech should enjoy the highest level of protection. Despite any positive social consequences that might accrue from limiting simulated child pornography or sexually explicit programming on cable broadcast, the US Supreme Court has accorded these forms of expression First Amendment protection. The vital public good of unrestrained speech is so valuable even these vulgar and relatively unimportant expressions are not balanced against any positive social good that might accrue from even modest limitation of these forms of expression. How much more important must be political speech; speech the First Amendment was designed to protect? Apparently, such speech is not very important to this Court.

The majority in this case tries to avoid bumping against the walls of First Amendment protections by arguing that no speech is being limited, only spending on the means to procure such speech. However, the means to speech must be defended if speech is to be protected. Except by getting up on a soap box (assuming the soap box is free) and orating or handwriting a pamphlet (on free paper) any speech requires the interaction of people and that interaction is often mediated by money. As Justice Antonin Scalia in his dissent explained: “An author may write a novel, but he will seldom publish and distribute it himself. A freelance reporter may write a story, but he will rarely edit, print, and deliver it to subscribers. To a government bent on suppressing speech, this mod of organization presents opportunities: Control any cog in the machine, and you can halt the whole apparatus. License printers and it matters little whether authors are still free to write. Restrict the sale of books, and it matters little who prints them.”

The Founding Fathers would have been familiar with such circuitous methods to limit expression. That is why the First Amendment was so categorical: to prevent the very sort of usurpation of freedom endorsed by the Court in this decision. The Stamp Act of 1712 in Great Britain applied a tax on newspapers resulting in increased prices and decreased circulation. This was done with the express purpose of punishing and limiting negative coverage. Under the jurisprudence of the present Court, freedom of speech or of the press was not being regulated because the economics of speech were constrained, but not necessarily the content. When Great Britain applied similar legislation to the Colonies in Stamp Act of 1765, it probably hastened the American Revolution.

The BCRA may have been passed under the auspices of attempting to curb corruption, but its true intent is to curb speech, particularly speech directed against incumbents. In explaining the need for the BCRA Senator Barbra Boxer of California complained that “so-called issues ads are not regulated at all and mention candidates. They directly attack candidates without any accountability. It is brutal … We have an opportunity in the … [BCRA] to stop that…” It is a measure of how drug of campaign finance reform has so numbed the mind of a Senator that she can even utter the words “regulate” and “issue ads” in the same sentence. Clearly speech, i.e., critical political speech is what they are trying to regulate.

If Congress were really concerned about the effects of corruption, they would have not have constrained non-profit corporations like the National Rifle Association or the American Civil Liberties Union. Non-profit organizations are not usually looking for graft but to “petition the Government for a redress of grievances.” If Congress were concerned about corruption, why are third parties unassociated with political parties or candidates so regulated 60 days before an election.

Indeed, the proposition that money induces corruption itself is not borne by the facts. Usually money follows candidates with certain positions rather and driving candidates to other positions. A recent study by Ansolabehere et al. of the Massachusetts Institute of Technology published in the Journal of Economic Perspectives demonstrates that “campaign contributions as a percent of GDP [Gross National Product] have not risen appreciably in over 100 years — if anything, they have probably fallen” and “that when one controls for unobserved constituent and legislator effects, there is little relationship between money and legislator votes.” They found that “Legislators’ votes depend almost entirely on their own beliefs and the preferences of their voters and their party. Contributions explain a miniscule fraction of the variation in voting behavior in the US Congress.”

The final principle of campaign finance reform that appears always to be true is that laws will be so written as to increase the power and security of those writing the bills: incumbents. Incumbents enjoy natural advantages. They usually have high name recognition and their duties require them to be constantly in the public eye. It is a conventional wisdom for those practiced in the martial arts of electioneering that challengers often have to spend substantial sums just to achieve the same name recognition as incumbents. The more speech is limited, even if it is limited even-handedly, the more incumbents are protected from accountability. In the short run, this will benefit Republicans at the national level, but only at the cost of liberty. One day Democrats may enjoy a majority of incumbents and Republicans will suffer a similar fate. It seems that Democrats were the most fool hardly. They sacrificed political liberties without even the advantage of temporary electoral benefit.

BCRA also increases the power of the major media, because they will now alone be the filter of campaign messages, particular in the last 60 days of a campaign when independent ads by third parties endorsing or criticizing candidates cannot be purchased. It is ironic that the press that enjoys the freedom accorded by the First Amendment were among the most vocal proponents of limiting the speech of others.

The media fail to appreciate that there is no principled distinction between limiting third party from “electioneering communication” and limiting similar expressions from the press. In name of protecting the “integrity of the political process,” why could not Congress limit editorials by the press 60 days before an election? If not, could not wealthy corporations and individuals purchase media corporations and use them for electioneering. Indeed, in the early days of the republic, newspapers where generally organs of political parities.

Congress was irresponsible in passing BCRA, but sometimes Congressmen are like lemmings following the popular lead of the press. After all, at best they are only vote in 535 and can separate themselves emotionally from responsibility for their actions. Five of the nine justices on the Supreme Court should now be embarrassed by their complicity in limiting speech. We can only hope this aberration will be undone in some future decision when the Court is compelled to revisit the issue as Congress becomes more emboldened to fend away criticism via legislation. The severest criticism should be leveled at President George W. Bush who probably in his heart of hearts believed the BCRA was unconstitutional. He shirked his responsibility to “preserve and protect” the Constitution. He hoped that the courts would be shield him from the responsibility of taking the unpopular action of vetoing the legislation. He knew better, but did not act.

Nixon and Clinton and Bush

Sunday, December 14th, 2003

It is hard to find three more personally different individuals that served as president than Richard Nixon, Bill Clinton, and George W. Bush. Nixon was a deeply flawed individual whose sense of inferiority over his humble beginnings fueled not only the healthy ambition of the poor, but paranoia about the conspiracies of political opponents. Whereas Nixon’s humble origins formed a morose and taciturn adult, Clinton’s wrong-side-of-the-tracks childhood gave rise to a gregarious adult perhaps a little too concerned about what others thought of him. Bush was the child of privilege, a frat brother who was not as serious as he should have been as a young adult and apparently had a substance abuse problem. Nonetheless, all of them managed to exercise sufficient self discipline and political astuteness to become president. There are many angry and driven individuals who have not become president. Nixon did. There are many “bubbas” who have not avoided dissipation by their appetites and not risen to the presidency. Clinton did. There are many earnest children with impeccable political pedigrees who have gotten close, but have never become president. Ask Al Gore about whether familial destiny is sufficient?

These three presidents share a political fate that distinguishes them from many others who served in the office. They seem to have incited a deep and visceral animosity on the part of their political adversaries. This hostility is not born of the normal competitiveness of political differences. Jimmy Carter had the same political ideology as Clinton, but even people who opposed Carter politically never seemed to detest him with the fiery intensity devoted to Clinton. Reagan was not only a Conservative, but he was “Mr. Conservative.” No person who is more Conservative could have been elected. The Left opposed him politically, even tried to ridicule him, but few apparently hated him with the visceral distaste associated with Nixon and now Bush.

Indeed, from an objective standpoint this animosity seems oddly misplaced. As flawed as Nixon was and in spite of illegal activities, he was about as Liberal in his policies as his political opponents could have hoped for. He proposed and helped pass environmental legislation like the Clean Air and Water Acts and instituted the Environmental Protection Agency. Nixon bowed to organized labor and helped create the Occupational Safety and Health Administration (OSHA). He expanded affirmative action into the racial spoils system so many Liberals now embrace. In foreign policy, Nixon, the great anti-communist, began a rapprochement with the Soviet Union with the policy of Detente. Who else could have recognized Communist China and forged a more open relationship with it? Even, or should I say especially, the French appreciated Nixon.

Clinton also was about as Conservative as Republicans could have hoped for from a Democrat. Clinton was a “New Democrat” who quickly realized the futility of national health care legislation, declared the age of big government over, and to the anger of true-believing Liberals, joined with a Republican Congress to pass successful welfare reform.

Bush too is a moderate man by nature who generally seeks to get along. He has allowed Congress to spend like the metaphorical drunken sailor, yielded to Edward Kennedy on education reform, and just passed the largest expansion of Medicare in a generation. He is hardly engaged in a Conservative counter revolution.

Unfortunately for all three, they pressed the wrong political buttons and were forever cast in irrationally ideological terms. Early in his career as a young Congressman on the House Un-American Activities Committee, Nixon investigated the Liberal Alger Hiss. Hiss was ultimately jailed for perjury. Many on the Left believed that Nixon created evidence to help convict Hiss. For this belief, Nixon was never forgiven. The fact that the poised and debonair Hiss was brought down by the uppity Congressman from California added a touch of Left-wing elitism to the anti-Nixon fervor. To cast this in contemporary terms, just imagine the rancor if even years from now Kenneth Starr, the special counsel appointed to investigate the Clintons, runs for political office.

Clinton and Bush, fairly or unfairly, earned animosity by the circumstances of their election. Clinton was elected in a plurality caused by the third party candidacy of Ross Perot who siphoned votes primarily from the incumbent President George Bush (Bush I). For some, Clinton really did not have legitimacy. Similarly, George W. Bush was narrowly elected earning the requisite number of electoral votes while not achieving a popular majority. Add to this the intervention of both the Florida and US Supreme Courts, and the animosity level intensified. Over the last three years, the sore of Bush hatred has festered.

Ironically, the hatred of Nixon, Clinton, and Bush by their political adversaries shield them from criticism within their own political parities, protecting them from their more extreme elements. This allowed Clinton and Nixon to garner the support of moderate voters. Of course, there were grumblings within their own parties about shifts to the center, but these complaints were suppressed by the natural tendency of people to rally around their leader when under assault. The consequence of conspicuous hatred on the part of their political adversaries energized Nixon and Clinton supporters and afforded both Nixon and Clinton comfortable reelection victories. Nothing compels future events to mimic past ones, but it will be interesting to see whether the same scenario plays out next fall for Bush.

Disciminating Against Religioius Instruction

Sunday, December 7th, 2003

James G. Blaine was a Republican Speaker of the House of Representatives in the late 1800’s who tried to amend the US Constitution to forbid the states from funding “sectarian” institutions. At that time the term “nonsectarian” did not carry the connotation of “secular” as it does now. The Protestant majority believed that “sectarian” described groups out of the Protestant main stream. Many were concerned that state funds might indirectly aid Catholics who were establishing their own schools to avoid the Protestant-centric instruction common at the time. Blaine’s amendment to the US Constitution managed to pass in the House, but then died when if failed to garner the super majority required in the Senate. Nonetheless, Blaine used his political influence to urge some states to pass similar amendments and to insist that as new states enter the union they attach Blaine amendments to their constitutions.

One such amendment is incorporated in the constitution of the State of Washington. It is far more restrictive than the US Constitution and explicitly states that “No public money or property shall be appropriated for or applied to any religious worship, exercise for instruction, or the support of any religious establishment.” The question the US Supreme Court is taking up in the case of Locke v. Davey is whether the prohibition is written so broadly that it infringes on the “free exercise” clause of the First Amendment.

This case began when Joshua Davey was granted the Promise Scholarship by the State of Washington. The scholarship was granted on the basis of academic excellence and need. The scholarship was valid for any field of study save one, the study of theology taught from a religious perspective, {\it i.e.,} instruction that “resembles worship and manifests a devotion to religion and religious principles in thought feeling, belief, or conduct.” The limitation on the scholarship was consistent with the state constitution and relevant state law. Davey was forced to forego the scholarship. Nonetheless, Davey was convinced the restrictions violated his First Amendment rights. If Davey were willing to fudge a little on his course of study, he probably could have managed to study the courses he wanted to and still retain the scholarship. Instead of sacrificing his integrity, he sued.

Davey lost at trial. However, the Ninth Circuit Court of Appeals, the notorious Circuit Court famous for striking down the use of “under God” in the Pledge of Allegiance and the Circuit Court with dubious distinction of having its decisions overturned by the US Supreme Court more frequently than any other Circuit Count, surprisingly ruled in favor of Davey. Wanting to retain the prohibition against the use of scholarship funds for religious study, the State of Washington asked the Supreme Court to review the case. The case is now under consideration.

The question boils down to whether Washington’s Constitution is so restrictive that it violates the US Constitution’s free exercise clause of the First Amendment. Case law is clear. If state law is more restrictive of individual liberties than US Constitution, state law must yield.

The previous jurisprudence of the Supreme Court suggests that any law that makes any classification based on religion must pass strict scrutiny. In Rosenberger v. University of Virginia, the Court found that the University of Virginia could not deny funds to a student religious group when it granted funds to other student groups. Indeed, treating religious groups differently in this case was tantamount to stigmatizing religion, when government’s role should be one of neutrality. The Court concluded that no reasonable person could conclude that the funding of the student led group constituted an endorsement. Will they draw a similar conclusion in the Locke v. Davey case?

The case if full of ironies. The American Civil Liberties Union (ACLU), which usually beats its chest about the necessity of tolerance for minorities, in its amicus curie brief before the Court is siding with the State of Washington and the Blaine Amendment originally motivated by intolerance of Catholics. It suggests that the ACLU position is more reflexively anti-religious than based on a principled understanding of the First Amendment. On the other hand, Conservatives who are usually sympathetic to state autonomy are seeking to use the Federal Courts to override state action. It sometimes seems that the arguments about state versus federal rights is based less on a thoughtful theory of federalism, on more on whether the state or federal government happens to be on the favored side the issue.

Not surprisingly, Court handicappers believe the case might hinge on the vote of Sandra Day O’Connor.