Category: First Amendment

Scott Johnson of Power Line writes a powerful argument about the true intent of the BCRA and its carefully selected targets in today’s Daily Standard. Titled “Dream Palace of the Goo Goos,” Johnson’s article points out the hypocrisy of sanitizing political speech in an era where the courts have permitted all kinds of activity to act as speech, therefore granting them the protection of the First Amendment umbrella:

Even if the McCain-Feingold law and the “press exemption” are unclear on the extent of their application, wouldn’t the First Amendment protect freedom of speech on the Internet? The Supreme Court’s modern First Amendment jurisprudence has afforded Constitutional protection to such vital speech as nude dancing, flag burning, simulated online child pornography, and sexually explicit cable programming. Surely the First Amendment protects the rights of bloggers to express themselves on the Internet as they see fit in connection with elections to federal office?
The First Amendment itself speaks to the point with great clarity: “Congress shall make no law . . . abridging the freedom of speech, or of the press . . . ” And there is no gainsaying that the core purpose of the First Amendment is the protection of political speech. Yet the Supreme Court has beat a remarkable retreat in the face of the congressional onslaught on political speech in the name of campaign-finance reform. In its decision affirming the constitutionality of the basic provisions of the McCain-Feingold bill, the Supreme Court has already demonstrated that it cannot be counted on to protect the right of free speech in the context of campaign-finance law. In affirming the constitutionality of the McCain-Feingold bill’s key provisions, the court cut Congress substantial slack to regulate otherwise protected speech in the name of “preventing corruption or the appearance of corruption.”

But Scott finds his most devastating argument in the dissent of Justice Antonin Scalia, whose words in opposition to the BCRA sound as those of a true seer. Scalia went through the Congressional debates of both McCain-Feingold and Shays-Meehan which created the BCRA, and had much more of a grasp on the true intent of the BCRA’s muzzle than his colleagues (emphases mine):

[L]et us not be deceived. While the Government’s briefs and arguments before this Court focused on the horrible “appearance of corruption,” the most passionate floor statements during the debates on this legislation pertained to so-called attack ads, which the Constitution surely protects, but which Members of Congress analogized to “crack cocaine,” 144 Cong. Rec. S868 (Feb. 24, 1998) (remarks of Sen. Daschle), “drive-by shooting[s],” id., at S879 (remarks of Sen. Durbin), and “air pollution,” 143 Cong. Rec. 20505 (1997) (remarks of Sen. Dorgan). There is good reason to believe that the ending of negative campaign ads was the principal attraction of the legislation. A Senate sponsor said, “I hope that we will not allow our attention to be distracted from the real issues at hand-how to raise the tenor of the debate in our elections and give people real choices. No one benefits from negative ads. They don’t aid our Nation’s political dialog.” Id., at 20521–20522 (remarks of Sen. McCain). He assured the body that “[y]ou cut off the soft money, you are going to see a lot less of that [attack ads]. Prohibit unions and corporations, and you will see a lot less of that. If you demand full disclosure for those who pay for those ads, you are going to see a lot less of that . . . .” 147 Cong. Rec. S3116 (Mar. 29, 2001) (remarks of Sen. McCain). See also, e.g., 148 Cong. Rec. S2117 (Mar. 20, 2002) (remarks of Sen. Cantwell) (“This bill is about slowing the ad war. . . . It is about slowing political advertising and making sure the flow of negative ads by outside interest groups does not continue to permeate the airwaves”); 143 Cong. Rec. 20746 (1997) (remarks of Sen. Boxer) (“These so-called issues ads are not regulated at all and mention candidates by name. They directly attack candidates without any accountability. It is brutal . . . . We have an opportunity in the McCain-Feingold bill to stop that . . .”); 145 Cong. Rec. S12606–S12607 (Oct. 14, 1999) (remarks of Sen. Wellstone) (“I think these issue advocacy ads are a nightmare. I think all of us should hate them . . . . [By passing the legislation], [w]e could get some of this poison politics off television”).

So what are all of these Senators decrying? The ads used by outside interest groups to highlight real and perceived deficiencies in an incumbent’s voting record. Why did outside groups run these ads? Thanks to earlier, misdirected attempts to “reform” campaign financing, candidates and political parties couldn’t raise enough money to do that themselves. Instead, the money flowed to PACs, which then worked with the campaigns, allowing a reduced if still open responsibility on the candidates for the message. (Now, with coordination completely outlawed, the money flows to groups which spout messages with no responsibility whatsoever.)
In other words, as Scalia pointed out to the Supreme Court, BCRA never amounted to anything more or less than an attempt by the entrenched political class to stifle criticism and protect their incumbencies.
Does this mean that the attacks will go away now? Hardly, and that’s where the FEC comes in. With readership soaring on the blogosphere, the campaigns and the partisans will find ways to get the information needed to independent voices, such as bloggers, to report to their readers. Once that happens, the FEC will come under Congressional pressure to enforce an ever-widening net of legislation ostensibly to protect virgin American eyes and ears from “poison politics”, but truly to save these pork-barrel incumbents’ bacon.
Make sure you read all of Scott’s analysis.

Ryan Sager writes a powerful column in today’s Tech Central Station that exposes the big money behind campaign-finance reform and the BCRA. Sager spots a report by Political Money Line which traces an astronomical amount of money that got spent by just a handful of sources to push the BCRA, and all of them from the Left:

Consider a report just out from the folks over at Political Money Line, “Campaign Finance Reform Lobby: 1994 to 2004.” Ignored by the media to date, it details how the supposedly grass-roots campaign-finance reform movement has been funded over the last decade to the tune of $140 million. Of that $140 million, the vast majority ($123 million) came not from retirees scraping together their last nickels for the cause of democracy, nor from schoolchildren collecting deposits on cans plucked from dilapidated playgrounds.
No, the money came from just eight ultra-liberal foundations (including the Ford Foundation and George Soros’ Open Society Institute), the same folks who fund: the Earth Action Network, the NOW Legal Defense and Education Fund, People for the American Way, Planned Parenthood, the Naderite Public Citizen Foundation and the Feminist Majority Foundation. …
Payments to the media found by Political Money Line include: the $132,000 to the Prospect, $69,000 to Public Radio International, $935,000 to the Radio and Television News Directors Foundation and more than $1.2 million to National Public Radio for items such as, in the words of the official disclosure statements, “news coverage of financial influence in political decision making.”
No wonder McCain-Feingold contained a “media exemption.” The media — on top of having their voices amplified when private citizens, labor unions and corporations are barred from speaking — are relatively easy to write some checks to. (Millions of bloggers, on the other hand, might be a little harder to corral — hence the calls for a crackdown.)

In fact, some of the same people can be found through the donors page of John McCain’s Reform Institute, a fact that Sager misses although he savages McCain’s connections to RI. As I blogged on Wednesday evening, the RI appears not only to float key McCain election aides between campaigns (which Sager notes), but it does so using foundation grants from some of the most left-wing organizations in the US. George Soros’ OSI has been one of RI’s biggest donors, as has Teresa Heinz Kerry’s Tides Foundation and Tides Center, The Proteus Fund, and the Educational Foundation of America.
Politics make strange bedfellows, but it looks like the media also likes to hop into the same bed despite all protestations of purity. Now we know why the BCRA gave the old-line media its exemption but its sponsors sued the FEC to strip the Internet of theirs. More than ever, we need to repeal the BCRA and eliminate the Byzantine campaign-finance laws and IRS exemptions that create these backchannel corruptions. The only reform we need is direct contributions, directly and immediately disclosed. (via Tapscott’s Copy Desk)

I have given Howard Kurtz some harsh criticism over his lack of coverage in the Eason Jordan controversy, but today he does an excellent job of covering the wide-ranging debate over the FEC and its new charge to strip the Internet of its exemption from the BCRA. Kurtz notes that with the media exempted from the BCRA, the strategy at the moment is to get the FEC to explicitly define bloggers as journalists to work under the same exemption — a notion for which he sympathizes:

I’m not one of these people who thinks you need a graduate degree, an ID card or an official stamp of approval to call yourself a journalist. Anyone with an idea and a computer can now play the role of reporter, commentator or social critic. People can tell the difference between a New York Times correspondent and BozoBlogger.com, and both have something to contribute.
But this is starting to matter for legal reasons. Time magazine’s Matt Cooper and Judith Miller of the New York Times may wind up going to jail for protecting their sources in the Valerie Plame case, but at least they have the standing as journalists to challenge the prosecutor who wants to imprison them. Would a blogger have the same standing?
What about the heavy hand of government regulation? The Federal Election Commission, as you may have heard, is considering slapping some restrictions on political bloggers following a federal judge’s ruling on some McCain-Feingold litigation.

Kurtz covers and links to the Shays-Meehan v. FEC decision, the Apple v. Does court case, and Russ Feingold’s blog post on MyDD to set the table. He also extensively excerpts from a number of other bloggers, specifically CQ and LaShawn Barber, and reports what I think are the most pertinent arguments to the Post’s readers. Be sure to read the entire article.

With the pending FEC regulations on Internet politicking percolating through the blogosphere, the prevailing wisdom goes two different directions. Either the decision by Judge Kottar-Kotelly to strip the Internet of its BCRA exemption portends even more encroachment on political speech by regulating bloggers to death, or the threat has been overblown and the FEC wouldn’t dare to try it. No one in the blogosphere has argued on behalf of greater regulation.
That is, no one until Chris Nolan wrote this piece for eWeek. Nolan argues that bloggers have become so influential in politics that regulating us should be a high priority for the FEC, in order to prevent our interference with campaign finance reform:

It’s silly to think Smith’s warnings will all come to pass and that the FEC will attempt to figure out, for instance, the actual monetary “value” to a campaign of a hyperlink from a blogger or anyone else for that matter.
And the FEC is unlikely to craft brand spanking new regulations for online advertising, completely different from those that already cover hardcopy counterparts.
But it is looking into how bloggers are compensated by campaigns as part of an exploration into how campaigns coordinate their messages with blogs or other outside organizations.
At this point, a bit of disclosure on my side is in order. Since I run a political Web site, these rules could affect how I run my business.
And many of the people I have spoken to for this column about the FEC, its efforts and the efforts to amend the commission’s rules have purchased ads on my site or provided the site with the very kind of support the commission may be looking at: hyperlinks and referrals.

Nolan appears mostly concerned with bloggers who are compensated by political campaigns, such as Markos Moulitsas and Jason Van Der Beek, but the two are not related. First, one would have to establish whether the blogging was what initiated the compensation or other services separate from the blogging. Moulitsas, for instance, raises funds as an activity outside of his blogging, although many campaigns bought ads on his site. Essentially, that puts money in Moulitsas’ pocket, not the campaign; after all, campaigns don’t have specific spending limits per resource, only contribution limits. The FEC would have to judge what Moulitsas did on his blog as to whether he wrote it out of conviction or meant it as a campaign contribution, and then would have to determine a scale to judge its value as an in-kind contribution.
It’s thought-policing of the worst order, and the BCRA inevitably pushes towards that end. The FEC will have the power to determine whether or not bloggers, especially those who are politically active, engage in speech or cashless contributions. Moreover, the language in Shays-Meehan v. FEC ominously portends that the burden of proof will rest with the blogger, not with the FEC, to prove the negative: that he or she did not intend their speech to be a campaign contribution.
As I wrote earlier, that opens the doors for tremendous pressure on bloggers to simply stop writing. The FEC will have to react to complaints, which would be easily influenced by swarms targeted at political opponents. My friends at Power Line have faced numerous accusations, even in our local newspaper, of receiving secret funding from the Republican Party and GOP activists — all untrue. One of them, John, has had a campaign of scurrilous lies and crank phone calls to his family and his office intended on intimidating him into silence. If these people had an opportunity to file complaints against bloggers they target, can anyone doubt that people like John or myself would find ourselves overwhelmed with the efforts of defending ourselves and producing financial records to prove the negative?
Nolan attempts to excuse her retreat from free speech by using her political website to establish her blog bona fides. However, Nolan also has a column in eWeek, which gives her the mass-media exemption written into the BCRA. When she wants, she can use her eWeek column to promote her political views as she sees fit, without any restrictions, regardless of whether she works on a campaign or not. Why does she want to restrict that right for the rest of us?

I had not known about this beforehand, but CNN put together a short piece on bloggers and the FEC for last night’s broadcast. Hosted by Howard Kurtz and lasting about two minutes, it covered the framework of the threat the BCRA and the recent stripping of the Internet exemption holds for bloggers. Howard Kurtz hosted it, and quoted from CQ (using my full name) and La Shawn Barber. Trey Jackson has the video.
UPDATE: For a short segment, Kurtz did a good job, I thought. Let me know what you think about it. BTW, I must have a face built for radio; while I see many of my fellow bloggers getting talking-head time on cable debate shows, my cherubic visage has yet to grace the small screens of America. You can consider this a good example of Adam Smith’s Invisible Hand of market wisdom, I suppose …

When CQ first covered the Bradley Smith interview that started the blogswarm on the FEC and the BCRA this week, I noted several unusual relationships between the donors and the institute, all hinging on Richard Davis, RI’s president and John McCain’s campaign manager. Since Davis also acts as McCain’s chief political advisor, I found it odd that the RI — which pays Davis a $110,000 “consulting fee” annually instead of a salary as its president — received money from donors such as the sources that follow below.
Bear in mind, please, that foundations don’t just line up to hand out cash. Rick Davis has to apply and then campaign for these funds, as budgets are limited even for the richest foundations. They carefully select their grantees to ensure that they support the overall mission of the foundation. Why would a close political advisor to John McCain go to these sources almost exclusively for the major funding of the non-profit that seeks to support McCain, a supposedly conservative Republican?
* The Tides Foundation, which heavily promotes “reproductive justice”, giving over $500,000 to pro-abortion efforts. They also actively oppose the death penalty (so do I, FYI). John McCain opposes abortion and supports the death penalty, so why is his chief political advisor getting so much support from those who ostensibly oppose him?
* Educational Foundation Of America, which also supports abortion. EFA also opposes drilling in ANWR, an issue on which McCain has an ambivalent record. It also supports euthanasia and assisted suicide through the Death With Dignity National Center, a group which it gave $45,000. It gave $100,000 to the Alliance for Nuclear Accountability, which opposed the Yucca Mountain nuclear depository (McCain supported it), and opposes development of low-yield nuclear “bunker buster” bombs, which McCain supports.
In fact, EFA appears to contribute to just about every left-wing cause imaginable, as well as a number of noncontriversial charities and outreach efforts.
* The Proteus Fund, which also opposed the Yucca Mountain repository, spending $75K to stop it. That pales in comparison to the $935K they spent on supporting gay marriage initiatives, which McCain strongly opposes. They have also spent over $800,000 funding nuclear-disarmament and antiwar causes in each of the last two years. Their Security Policy Working Group contains nothing but left-of-center groups like Project on Defense Alternatives, which calls the Iraqi elections “faulty” and predicted disaster for the Bush administration’s “program of coercive transformation throughout the region.”
* OSI (Open Society Institute), founded and funded by George Soros. Among a litany of left-wing causes supported by OSI are People For The American Way, to support their Supreme Court Project. (Hint: It isn’t intended on assisting Bush get his nominees confirmed.) They also gave $150,000 to the Campaign Legal Center, which will be important shortly.
* David Geffen Foundation also shows up on the list, although not in the top tier. David Geffen is an entertainment-industry mogul who supports Democrats and left-wing causes. They do not have a website I could find, but Activistcash.com notes that in 2002, most of the grants Geffen gave went to environmental activists and the Tides Foundation and Tides Center.
But the oddities don’t end at the donors page for Reform Institute. We’ve already detailed how McCain’s chief political advisor earns a six-figure income from the nonprofit which heavily promotes McCain and the BCRA. As the New York Times noted yesterday, RI provides a back-channel method of keeping his campaign staff employed without McCain having to do any fundraising for his political campaigns — and avoiding the donation caps that come into play for his donors. And Davis isn’t the only beneficiary of this loophole.
Trevor Potter works as General Counsel to the Reform Institute. Coincidentally or not, Potter also worked as general counsel to McCain during his 2000 run for the presidency. Potter also is employed as President and General Counsel to the Campaign Legal Center, making him a direct beneficiary of the George Soros donation to this non-profit group as well as at RI. Potter also released a “don’t worry, be happy” statement about the FEC’s decision not to appeal the Shays-Meehan lawsuit judgment overturning the Internet exemption to the BCRA which failed to disclose Potter’s connections to RI, Soros, or McCain.
John McCain, who has long campaigned on a promise to rid politics of big money, not only has built himself a lucrative third-party solution for fundraising but also a shelter to keep two of his top campaign operatives employed between elections. These top strategists also have an odd taste for funding sources, considering McCain’s public positions on key issues for his base. That money pays their salaries and indicates a certain amount of influence among McCain’s political staff. It demonstrates better than anything else could the corrosive nature of hidden money and back-channel dealings, which the BCRA not only doesn’t resolve but almost requires for campaign fundraising.
This shows the futility of the BCRA just as much as it does the hypocrisy of John McCain in creating it and expanding it. The only solution for corruption is direct contributions that get immediate and full disclosure, not limitations on political speech. I can’t think of a better example than the Byzantine mess I’ve described above to make that point.

The Rocky Mountain News apparently won’t drink the old-line media Kool-Aid regarding McCain-Feingold and the media exemption. The RMN appears to have an editorial board that remains old-fashioned enough to protect the First Amendment, even when the BCRA gives them a political advantage:

Little wonder, since the immediate victims of such a scheme would be the proliferating number of bloggers who devote themselves to online political commentary. Current FEC rules count any Web link to a candidate’s Web site as “coordination” with that candidate’s campaign. If applied to the Internet, that could make individual bloggers subject to the much more restrictive rules that now govern the activity of special-interest groups.
As “Captain Ed” Morrissey of the political blog Captain’s Quarters said in an open letter to Sens. McCain and Feingold, during the presidential campaign he linked to Kerry’s Web site four times as often as to Bush’s, “which would have meant to the FEC that I was a major contributor to his campaign.” In fact, he was a Bush supporter.
This proves yet again that McCain-Feingold was misbegotten. It’s bad enough the law unconstitutionally restricts the right of citizens to contribute their time and money to the candidates of their choice. But it also restricts the right of some groups even to talk about candidates – for or against – within 60 days of an election.

The exception to that rule exempts the mainstream media and the political candidates themselves. Others, such as unions and corporations but also independent people purchasing advertising, must remain muzzled in the final days of any election. That puts tremendous power in the hands of a few media conglomerates to disseminate the information they deem important — and to bury that which might not reflect well on their causes or candidates. McCain-Feingold essentially tells people that two classes of citizenry exists when it comes to politics: those free to speak their minds at any time, and the rest of us unwashed heathen who need to be told when to speak and when to shut up.
The RMN wants none of the advantage that the BCRA gives the media as a bribe to forget the First Amendment. Good for them. Let’s remember to support the Rocky Mountain News as we fight to repeal the BCRA.

As usual, Chris Muir nails the issue in real time:

I’ll have more on John McCain and the Reform Institute later today. In the meantime, if you don’t read Day by Day on a regular basis, you should start today. Eventually a syndicate is going to wise up and hire Muir — and then we’ll have to subscribe to a newspaper or the syndicate to get our fix…

In order to understand John McCain’s present circumstances, it may be helpful to recall his entry into the Senate, tarnished with scandal over the savings and loan system collapse in the late 1980s. John McCain had been a recipient of over $100,000 in donations from Charles Keating, the owner of Lincoln Savings and Loan and American Continental Corporation. Keating used the S&L to float out bad bonds in ACC, resulting in a $2 billion loss and bailout from the FSLIC and the loss of millions of dollars to ordinary shareholders in ACC.
McCain ran interference for Keating, as the Arizona Republic’s Bill Muller wrote:

In 1982, during McCain’s first run for the House, Keating held a fund-raiser for him, collecting more than $11,000 from 40 employees of American Continental Corp. McCain would spend more than $550,000 to win the primary and the general election.
In 1983, during McCain’s second House race, Keating hosted a $1,000-a-plate dinner for McCain, though he had no serious competition and coasted into his second term. When McCain pushed for the Senate in 1986, Keating was there with more than $50,000.
By 1987, McCain had received about $112,000 in political contributions from Keating and his associates. …
The first meeting, on April 2 in DeConcini’s office, included Ed Gray, chairman of the Federal Home Loan Bank Board, as well as four senators: DeConcini, McCain, Alan Cranston, D-Calif., and John Glenn, D-Ohio. … The second meeting was on April 9. The same four senators attended, along with Sen. Don Riegle, D-Mich. Also at the meeting were William Black, then deputy director of the Federal Savings and Loan Insurance Corp., James Cirona, president of the Federal Home Loan Bank of San Francisco, and Michael Patriarca, director of agency functions at the FSLIC.
In a recent interview with The Republic, Black said the meeting was a show of force by Keating, who wanted the senators to pressure the regulators into dropping their case against Lincoln. The thrift was in trouble for violating ”direct investment” rules, which prohibited S&Ls from taking large ownership positions in various ventures.
”The Senate is a really small club, like the cliche goes,” Black said. ”And you really did have one-twentieth of the Senate in one room, called by one guy, who was the biggest crook in the S&L debacle.” … ”They presented themselves as a group,” Black said, ”and DeConcini is the dad, who’s going to take the primary speaking role. Both meetings are in his office, and in both cases it’s ‘we’ want this, with no one going, ‘What do you mean we, kemo sabe?’ ”

And in both meetings, the message from one-twentieth of the Senate was clear: Keating needed to get special treatment. McCain would later argue that he was just looking out for his constituent, but the five Senators made it plain that they wanted the investigation to end immediately if Lincoln could not be charged with any violations at the time. John Glenn in particular made it plain that regulators needed to act or pack it up, and DeConcini insisted that their intervention on behalf of Lincoln was proper to protect an employer who had promised to clean up if left alone.
These meetings eventually became public as federal regulators, two years later and an untold millions of dollars lost to investors and the FSLIC, finally closed down Lincoln Savings and charged Charles Keating with fraud. The damage done to the five varied; Cranston never ran again for public office, while McCain managed to reinvent himself as a crusader — but some forget that it wasn’t just the campaign contributions that Keating made which tied him so closely to the “maverick” Arizona Senator:

On Oct. 8, 1989, The Republic revealed that McCain’s wife and her father had invested $359,100 in a Keating shopping center in April 1986, a year before McCain met with the regulators.
The paper also reported that the McCains, sometimes accompanied by their daughter and baby-sitter, had made at least nine trips at Keating’s expense, sometimes aboard the American Continental jet. Three of trips were made during vacations to Keating’s opulent Bahamas retreat at Cat Cay.
McCain also did not pay Keating for the trips until years after they were taken, when he learned that Keating was in trouble over Lincoln. Total cost: $13,433.

And when the Arizona Republic made these connections public, McCain erupted in one of his characteristic outbursts that earned him the sobriquet Senator Hothead:

”You’re a liar,”’ McCain snapped Sept. 29 when a Republic reporter asked him about business ties between his wife and Keating. ”That’s the spouse’s involvement, you idiot,” McCain said later in the same conversation. ”You do understand English, don’t you?”
He also belittled the reporters when they asked about his wife’s ties to Keating. ”It’s up to you to find that out, kids.”
And then he played the POW card. ”Even the Vietnamese didn’t question my ethics,” McCain said.

Eventually, the Senate Ethics Committee wound up giving McCain and Glenn the least of the censures it handed down to the Keating 5, rebuking them for “poor judgment” while inflicting no punishment. The Keating collapse wound up costing taxpayers and investors a total of $3.4 billion, a number that could have been mitigated substantially had the five not interfered with the regulatory agency’s investigation of Keating.
Now, what exactly has changed? McCain has intervened on behalf of a contributor — an indirect contributor, to be sure, but one solicited by and benefitting his chief political advisor for a group that closely allies itself to McCain and his agenda and heavily promotes the Senator. Within weeks this intervention, the contributor cut a six-figure check solicited by Rick Davis. The only changes to the Keating scenarios are that McCain learned to put a buffer or two between the money and himself and that he acted alone to intervene with a regulatory agency on their behalf.
This activity is what McCain promised he’d correct, first when he apologized for his role in the S&L scandal, and later when he assaulted the First Amendment and limited political speech during election campaigns. In other words, nothing has changed except McCain’s pomposity and hypocrisy.