This is a surprise:
The rights of citizenship do not stop at the ballot box. They include the free speech right to devote one’s resources to whatever cause or candidate one supports. We oppose any restrictions or conditions that would discourage Americans from exercising their constitutional right to enter the political fray or limit their commitment to their ideals. As a result, we support repeal of the remaining sections of McCain- Feingold, support either raising or repealing contribution limits, and oppose passage of the DISCLOSE Act or any similar legislation designed to vitiate the Supreme Court’s recent decisions protecting political speech in Wisconsin Right to Life v. Federal Election Commission and Citizens United v. Federal Election Commission. We insist that there should be no regulation of political speech on the Internet. By the same token, we oppose governmental censorship of speech through the so-called Fairness Doctrine or by government enforcement of speech codes, free speech zones, or other forms of “political correctness” on campus.
That’s part of the 2012 Republican platform. Seriously. Four years after Senator John McCain was the Republican nominee for President, the platform now calls for full repeal of McCain’s signature legislative achievement.
It has been a bumpy ride for campaign finance over the last four years, but better winds for free speech. The Federal Election Commission (FEC) has not updated its Campaign Guide for Nonconnected Committees since 2008, and for campaign finance lawyers it makes for a great drinking game, with a swig of beer for every regulation that’s been overturned. Although I think that would be fun, for anyone interested in engaging in the political arena without a law degree or campaign finance experience and with a lot of time in his hands, the guide is worthless. The FEC put out a notice in 2011 emphasizing the dated nature of its guides and encouraging activists to get up to speed on everything that’s been going on in campaign finance law, but the underlying message is unavoidable: leave politics to the professionals.
Although the Republican platform now makes an excellent, strong statement dispelling this notion, our Democratic President’s online forum yesterday proves even many professional politicians don’t actually understand the nuances of campaign finance law:
QUESTION: What are you going to do to end the corrupting influence of money in politics during your second term?
OBAMA: Money has always been a factor in politics, but we are seeing something new in the no-holds barred flow of seven and eight figure checks, most undisclosed, into super-PACs; they fundamentally threaten to overwhelm the political process over the long run and drown out the voices of ordinary citizens. We need to start with passing the Disclose Act that is already written and been sponsored in Congress – to at least force disclosure of who is giving to who. We should also pass legislation prohibiting the bundling of campaign contributions from lobbyists. Over the longer term, I think we need to seriously consider mobilizing a constitutional amendment process to overturn Citizens United (assuming the Supreme Court doesn’t revisit it). Even if the amendment process falls short, it can shine a spotlight of the super-PAC phenomenon and help apply pressure for change. (Emphasis added.)
It is curious that the President considers donors undisclosed, because Super-PACs, like all political committees, must disclose all donations they receive over $200. If an organization spends more than $1,000 on express advocacy of candidates and has the major purpose of electing a federal candidate or candidates, it must register as a PAC and report contributions and a whole lot of other things. There is already ample disclosure for PACs, even “super” PACs.
It is very likely that the “undisclosed” donations that concern the President are being given to various issue advocacy organizations, many of which are hammering (or supporting) President Obama and just about every other federal candidate (regardless of party) for their positions on certain issues. Since there is no money going to candidates, and the ads advocate positions on issues that will not change whether or not candidates are elected or re-elected, these ads do not constitute regulated “express advocacy” for the election or defeat of candidates, and thus do not constitute expenditures, and thus do not fall into the realm of political committee regulation. (Follow all that?)
President Obama and some friendly regulators at the FEC do not like this distinction. They believe every group that says anything about a candidate that might influence a listener’s opinion of said candidate should have to register and report with the government. They believe it is not a burden on political speech to register and file monthly reports detailing miniscule accounting under the threat of civil fines or even criminal prosecution for noncompliance. We don’t believe this at WyLiberty, hence our representation of Free Speech in its case against the FEC.
While we continue to vindicate First Amendment freedom in court, it’s outstanding that one party is embracing free speech, which could influence the legislative and possibly executive branch. If this keeps up, I might be out of a job. Bring it on!
