Frank’s Case Book

The Founding Fathers were always profound, but not always right. How could they be? They often disagreed with each other. The Federalist Papers were a series of newspaper articles by Alexander Hamilton, James Madison, and John Jay intended to persuade fellow citizens of the wisdom of adopting the proposed new constitution. One of the concerns was that the original document did not include a bill of rights. This deficiency was alleviated by the first ten amendments, the Bill of Rights, adopted shortly after the adoption of the Constitution.In his defense of the original document, Alexander Hamilton in Federalist 84 noted that some protections, like the writ of habeas corpus were already in the Constitution. However, Hamilton argued that constitutions as a rule were too general to contain a specific enumeration of rights. He feared that such an enumeration might “even be dangerous.” A failure to enumerate a particular right might suggest it did not exist. Fortunately, Hamilton’s position did not ultimately prevail or who knows what predations ever expanding governments might have visited upon us.

While some fret over additional powers to pursue terrorists that may be granted to the government under the Patriot Act, many seem to neglect a concerted government attempt to limit political speech. The Bi-partisan Campaign Reform Act (BCRA) represents just such an effort. It appears from this vantage point that this threat is greater than any posed by the Patriot Act. After all, if we can maintain free political speech, we at least have the opportunity to remedy other problems that may crop up from time to time.

Presently, the BCRA is working its way through the courts in the case of McConnell v. FEC. There is particular doubt as to the constitutionality of the Snowe-Jeffords Amendment to the BCRA. The provision prohibits companies, labor unions, and non-profit advocacy organizations from broadcasting messages that mention a political candidate within 60 days of a general election. The National Abortion Rights League is prohibited from running a television ad that says “Vote for candidate Smith because he supports abortion rights.” The National Rifle Association may not run an analogous ad in support of a candidate sympathetic to its views.

One of the criteria courts use to assess the constitutionality of a law is “overbreadth analysis.” Is the BCRA so broad that it might inevitably infringe on constitutionally protected speech? Would a provision that bars electioneering ads also prevent the expressions of ideas? Laying aside for the moment the critical issue of whether even ads that mention candidates made by organizations independent of the candidates or parties should enjoy First Amendment protection, the appeals court wanted to quantify the potential empirical effect of the BCRA. David Tell for the Weekly Standard has examined whether intellectually dishonest approaches were used to push forward the case for reform in making this empirical determination.

Political scientist Kenneth Goldstein of Arizona State University assembled a database from 1998 election year broadcast ads. Students were enlisted to watch and listen to broadcast ads and decide whether the ad was primarily electioneering or issue advocacy. This database was then analyzed by the Brennan Center for Justice of New York University “not simply to advance knowledge for its own sake, but to fuel a continuous multi-faceted campaign to propel campaign finance reform forward.” This certainly sounds like science recruited in the service of a political agenda. While it is possible for a passionate advocate to conduct a dispassionate inquiry, it requires a careful donning of the robes of scientific neutrality. Tell’s investigation of the Brennan Center’s use of the Goldstein database suggests that the Brennan Center not only neglected to wear those robes, but is streaking in only a pair of sneakers through the campaign finance reform debate.

Josuha Rosenkranz, President of the Brennan Center, has testified to the Senate that if the BCRA had been effect in 1998, analysis of the Goldstein database indicates that only 7 percent of issue ads would have been unfairly prohibited from broadcast. Other investigators have looked at the same data and found that likely 40 percent of issue advocacy ads would have been suppressed.

James Gibson, of Washington University, may have located Rosenkranz’s error. Gibson was able to replicate the 7 percent number only by making an incorrect calculation. As Tell explains it, “The numerator was the expected one: genuine issue oriented-ad broadcasts that the Snowe-Jeffords 60-day blackout would have unfairly swallowed up. But the denominator was an apples-and-oranges anomaly: all issue-ad broadcasts of the entire calendar year.” There are now even questions of whether the Goldstein database has been improperly altered. Time will likely prove if the broken dam of enthusiasm for campaign finance reform washed away the scientific integrity of the Brennan Center.

For our purposes here, let us assume for now that the Brennan Center was absolutely correct. Let us assume they made no errors unintentional or otherwise. Assume that only 7 percent of legitimate issue-oriented ads, political speech in its pristine form, would be suppressed under BCRA. Should we accept such a First Amendment restriction? By analogy, would we allow the government to engage in what is now considered “unreasonable” search and seizure if only 7 percent of those convicted were actually innocent? After all that would make it easier for the state to prosecute the guilty? Would we welcome a 7 percent conviction error rate for the cost savings of not having to provide counsel to the accused? I should think not. Freedoms and rights can be whittled down to nothing in increments of a few percent at a time.

The First Amendment is direct and terse. “Congress shall make no law … abridging the freedom of speech…” By contrast, the BCRA is complex and unwieldy. It takes many miles of creative intellectual thread to weave a shroud dense enough to shield the brilliance of the First Amendment. The BCRA represents a far graver to threat our freedoms than is commonly assumed.

“The nation of Iraq — with its proud heritage, abundant resources and skilled and educated people — is fully capable of moving toward democracy and living in freedom.” — President George Bush, February 26, 2003.

Middle East scholar Bernard Lewis has noted that democracies are difficult to create, but once created they are difficult to destroy. Now that the Coalition has liberated the Iraqi people from the grips of Saddam Hussein’s vicious police state apparatus, it remains to be seen whether it is possible to raise a stable democracy from the ashes of three decades of brutality. If Iraq is allowed to slip back to authoritarian rule, the US will not have completely filled the obligations assumed in taking control. However difficult this task might be, a democratic Iraq is likely to offer more stability in the long run. Any authoritarian rule will likely not truly respect the different minority populations, the Sunnis, the Shiites, or the Kurds that comprise Iraq. If a pluralistic democratic federation can be formed, it will stabilize the region, provide the opportunity for rapid economic development, and serve as a model for Islamic democracy.

Not all the French are like the current President Jacques Chirac who apparently believes that governance is merely the art of cynical exploitation for political and economic power. In the early nineteenth century, Frenchman Alexis de Tocqueville visited the United States, at that time a rare democracy. He came with an intellectual desire to understand and document for his countrymen the underpinnings of such a political system. How had the United States managed to construct a democratic and free society?

The result of de Tocqueville’s explorations was the seminal book Democracy in America. In it, he attributed America’s democratic success to three factors: the availability of land and opportunity, the structure of laws, and the manners of the people. He ranked these three factors arguing, “The laws contribute more to the maintenance of the democratic republic in the United States than the physical circumstances of the country, and the manners more than the laws.”

Physical circumstances, in present terminology, are the economic opportunities that allow people to divert their energies to economic pursuits rather than political exploitation. However, such economic opportunities to De Tocqueville were not sufficient to explain American democratic success. De Tocqueville noted that lands colonized by the Spanish in Central and South America were blessed with natural resources as great as those of the United States, but none of these lands had nurtured democracies.

Similarly, appropriate laws and political structures may be necessary for democracies, but they are not sufficient. De Tocqueville pointed out that in 1824, Mexico had adopted a federal constitution consciously modeled after the United States Constitution. It provided for an executive, an independent judiciary, a bi-cameral legislature and a federation of states. However, in a few years the experiment collapsed. Clearly, the willingness of the people to respect democratically agreed upon laws, the readiness to acknowledge the rights of others, and the maturity to sublimate aggression into economic activity are keys to stable democratic societies.

Given such necessities, the challenge of nurturing a democratic Iraq appears daunting. It is difficult to be sanguine about current prospects. Iraq has not enjoyed democratic political culture. A brief experiment with a national parliament in the 1930s did not take root. Moreover, various factions and groups that occupy the diverse country will have to learn to respect each other. Can such tolerance be learned? The recent experience of Algeria is not heartening. In 1990, radical Islamists were elected with the goal of imposing an Islamic state. The military intervened and the country is now in political turmoil.

Nonetheless, perhaps de Tocqueville was too pessimistic in assuming that only a very narrow set of circumstances make democratic republics possible. Despite the experiences of Mexico, Algeria, and others, constructing a large-scale democracy with a number of factions could add to stability. Following the political model of James Madison, we can hope that different factions, as they compete for democratic political power, may prevent any single group, (e.g., the Shiites, the Sunnis, or the Kurds) from acquiring tyrannical control. Also on the positive side of the ledger, Iraq has a mercantile middle class and a relatively educated populace. The openness and transparency of a commercial society mitigate against authoritarianism.

In the two centuries since de Tocqueville, we have learned that given economic prosperity and models like the United States, people gravitate to and prosper in liberal democracies. As each new democracy emerges, we find different modalities for different cultures and people with different histories to embrace democratic institutions. The glue of commercial interest has often proved to be an adhesive keeping countries from flying apart. In addition, if democratic structures can be maintained, the culture and manners necessary for such a society are nurtured. The longer democracies exist, the more stable they become.

History is on the side of democracy. In 1790, there were only 3 democracies and even by 1900 there were only a dozen or so countries ruled by the assent of the governed. However, by the end of the last century the number of such countries exploded to over sixty led by the newly emerging democracies of South America. For years, political scientists had believed that the enormous wealth disparities in Latin America would condemn these countries to suffering under authoritarian regimes. While Latin America still struggles, most Latin American countries at least aspire to democracy.

Counting the number of democratic countries is a little misleading. With the break up of colonial empires, there is now a larger number of countries. Nonetheless, at the beginning of the century only 20 percent of the world lived in democracies, while by 2000 the fraction had grown to 60 percent. Save for perhaps Turkey, democratic institutions have had a difficult time establishing themselves in Islamic countries. If ways can be found to nurture such development in Iraq, it will serve as a model for the gradual political liberation of the rest of the Islamic world.

In one important respect, it may be difficult for the United States to provide an example for democracy in Islamic countries. Although democracy blossomed in the United States in a fecund ground fertilized Judeo-Christian values, there is no established religion in the United States. Ironically for Islamic countries, Israel may provide the most appropriate model on how to integrate democratic values, including respect for religious liberty, while having special state recognition of a particular religious faith.

Unfortunately, recent jurisprudence has sometimes stood the rest of the constitution on its head in order to protect absolute access to abortions under virtually any circumstance. These usurpations have even extended to infringements upon the First Amendment. For example, in Hill v. Colorado in 2000, the Supreme Court ruled constitutional a 1993 Colorado law making it illegal for anyone to approach within eight feet of someone in the vicinity of medical facilities “for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education, or counseling with such other person…” It is, therefore, a salutary relief that in Scheidler v. NOW the high court refused to allow the extension of the Racketeer Influenced and Corrupt Organizations Act (RICO) to anti-abortion protestors by a decisive 8-1 margin.

RICO was written to prosecute organized crime syndicates that were involved in extortion. In 1989, the National Organization fpr Women (NOW) sued Joseph Scheidler of the Pro-Life Action League who was offering seminars on abortion protest strategies. Some of these strategies involved nonviolent civil disobedience techniques that blocked access to abortion clinics. Typically, similar civil disobedience results in arrests by police while protestors sing protest songs. In this case, NOW (and sadly US Solicitor General Ted Olsen) argued that the fact that the clinics were being deprived of business constituted extortion. The lower courts agreed and the triple damages imposed by the RICO law financially devastated Scheidler and his organization. The protests were effectively curtailed.

This broad interpretation of the law endangered protests of other kinds. During the oral arguments before the Court, it was suggested that such an interpretation of RICO could have been used to cripple the 1960s civil rights movement if lunch counter sit-ins closed businesses that refused service to African-Americans. People for the Ethical Treatment of Animals (PETA) a left-of-center animal rights extremist group sided with Scheidler fearing application of RICO to their protests in front of fur stores. Given the recent rise in anti-war protests, some of the Left have been more than a little nervous about the precedent the case could set. Even the American Civil Liberties Union concedes that “use of civil RICO as that remedy … poses its own problems.” No doubt these concerns contributed to the lopsided 8-1 decision.

It is prudent for the Supreme Court to decide each case on the narrowest possible grounds. This allows the court some maneuvering room in the face of new and unexpected cases. The Supreme Court noted that the RICO law was predicated on “extortion” as defined by the 1951 Hobbs Act. In this case, even if abortion clinics were effectively closed, the organization of protests did not constitute extortion since the protestors did not “receive something of value … they could exercise, transfer, or sell.” Scheidler and his group had not engaged in extortion by the defintion established in United States v. Nardello.

The Court left open the boundary between future laws and the First Amendment. For example, if a future Congress made it illegal, with severe penalties, to engage in nonviolent civil disobedience would such a law infringe on the First Amendment? Do we not want a country where nonviolent civil disobedience is dealt with in conventional ways with simple arrests and proportional penalties or do we want a country where such dissent is crushed with harsh and brutal sanctions? At what point do such penalties become so severe as to have chilling effect of legitimate protest? We would all be better off if the government chooses not to test such boundaries.

“The smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, … the more easily they will concert and execute their plans of oppression. Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens.” — James Madison, Federalist No. 10.

Freedom of speech is such a dirty and messy business. It means that we must endure drivel of the stupid, the hate of the evil, and the blather of the ill-informed, as well as learn from the learned and bask the beauty of the poet. Sometimes the value of this tradeoff is not appreciated, but it remains the foundation of stable democracy. A broadly recognized discipline of tolerance for the speech of others is a necessary component for stable rule by the consent of the governed.

At the time of the American Revolution, the long-term stability of democracies was an open question. Relying on the experience of the Greeks, many believed that democracies could only be successful in relatively small communities where the values and interests could be homogeneous.

The genius of the American Founding was that it turned this notion exactly on its head. The greatest danger is tyranny. The Founders understood that large expansive democracies are more stable, because a diversity of interests insures that no single faction or interest could assume sole control. The Founders also understood that one could not rely on good motives. Freedom, especially freedom of speech and the press, and the structure of government outlined in the Constitution allow ambition to counter ambition.

It is, therefore, with particularly poignancy that the end of this election cycle marks the beginning of the application of the “Bipartisan Campaign Reform Act of 2002,” the most ambitious attempt yet to regulate political expression. Champion of free speech, Senator Mitch McConnell is suing the Federal Election Commission over the constitutionality of the act. At this point, the case rests with the United States District Court for the District of Columbia. The case, however, will likely find its way the US Supreme Court for final adjudication.

This act is particular egregious in that it limits independent groups from running political adds within 60 days of an election — a time when political speech is perhaps most valuable and most deserving of broad protection.

Recent efforts at campaign finance reform are an abdication of the belief that speech is self-regulating. It posits a belief that there is such a thing too much speech, that Americans are unable to make decisions unless the government properly rations political speech. Campaign finance reformers are not, as they pretend be, populists. They do not exhibit the necessary faith in regular Americans.

The bromide used to defend campaign finance reform — reform that constrains the dollars that are spent or donated to campaigns — is that “money is not speech.” The phrase is easy to remember. It has only four words, which makes it simple to thoughtlessly and endlessly repeat. However, as with many rights, the right to use economic resources to speak and allow the speech to be heard by many is encompassed in the freedom of speech.

“Money is not freedom of the press,” but surely it would be unconstitutional to limit the amount of money a newspaper could use in the production of the paper, even if the editorial content is ignored. “Money is not freedom of religion,” but surely it would be unconstitutional to limit the amount of money that individuals could donate to support their churches, even if the nature of the religious observances were ignored. “Money is not the right to counsel,” but surely it would be unconstitutional for the government to limit the amount of money a person could pay his defense counsel.

The Cato Institute and the Institute for Justice are Libertarian advocacy groups that have filed a brief of amici curiae in the District Court case. Their brief offers a more expansive argument that even disclosure requirements on the part of individuals for donations constitute a violation of freedom of association. Disclosure can have a chilling effect on speech. Perhaps you do not want you neighbors or your boss knowing to whom you contributed. However, if you venture to the Federal Election Commission on the web today you can do a name search to find to whom your neighbor, your friend, or your employee made political contributions.

The argument against compelled disclosure relies heavily on the case of NAACP v. Alabama. In that 1958 case, the state of Alabama tried to compel that National Association for the Advancement of Colored People (NAACP) to reveal its membership. It is obvious that having the state of Alabama know you were member of the NAACP in 1958 would have been intimidating. The US Supreme Court ruled that anonymity of association is a protected right:

“Petitioner, [the NAACP], has a right to assert on behalf of its members a claim that they are entitled under the Federal Constitution to be protected from being compelled by the State to disclose their affiliation with the Association.”

It is too much to hope for that the present US Supreme Court would be bold enough to recognize that this precedent allows donors to contribute anonymously (anonymous to the recipient as well) to political campaigns and to advocacy groups. It would probably be salutary if they just recognized that expenditures of independent advocacy groups are protected under the First Amendment, even within 60 days of an election.