May 17, 2013

CFJ: Overturn Contribution Limits

This week, the Committee for Justice filed an amicus curiae brief in McCutcheon v. FEC, the next big campaign finance case before the U.S. Supreme Court.  CFJ’s brief supports the Republican National Committee and individual plaintiff Shaun McCutcheon in their First Amendment challenge to the aggregate contribution limits imposed by McCain-Feingold.  The Supreme Court will hear arguments in the case this fall.

CFJ president Curt Levey described the brief as “part of CFJ’s continuing effort to battle judicial activism.  Prior to the Roberts Court, the Supreme Court functioned more as legislators than judges on this issue, bending the First Amendment to accommodate the push for campaign finance reform.  The result is a politically convenient but constitutionally groundless interpretation of the First Amendment that allows the government to treat campaign contributions as a lesser form of speech.”

The aggregate limits being challenged in McCutcheon restrict the total amount of political contributions a donor can make over a two-year election cycle, even if the donor’s individual contributions comply with McCain-Feingold’s base limits – for example, the $2,600 per candidate per election limit.  The aggregate limits specify that no one can give more than $48,600 to all federal candidates combined over the election cycle. Thus, the contributor is limited to supporting nine candidates if he gives each one $2600 for both the primary and general election.

Similarly, there is a two-year aggregate limit of $74,600 on contributions to non-candidate committees, such that a donor could not give $32,400 per year – the base limit – to committees for both Senate and House races (say, the NRSC and the NRCC).

Mr. Levey notes that “It is hard enough to square McCain-Feingold’s base limits with the First Amendment, but it’s even harder to justify the aggregate limits, which serve no significant interest – constitutionally valid or otherwise – when added on top of the base limits.  Striking down the aggregate limits would be both important in its own right and a critical first step towards ending the second-class treatment of political contributions under the First Amendment.”

CFJ’s brief points out that the base limits are purported to serve the only two interests – countering the occurrence or perception of quid pro quo political corruption – identified by the Court as constitutionally sufficient to justify contribution limits.  Therefore, the aggregate limits can add nothing more than ensuring that no one engages in too much political speech, an interest the Court has rejected.

CFJ’s brief goes on to focus on the perception of corruption, detailing how public opinion surveys over the last several decades demonstrate that the aggregate limits do not and cannot affect the public perception of corruption.  In fact, the surveys show that public distrust in the government is caused by factors other than campaign spending.

CFJ’s brief also focuses on the perverse effect of the aggregate limits, which serve to direct the flow of money away from candidates and political parties and towards entities, such as Super PACs and 501(c)(4) organizations, that engage in unregulated independent expenditures – in other words, away from organizations with an interest in moderation, compromise and consensus and towards groups with narrower interests and often less moderate views.

Explains CFJ’s Levey, “The resulting flow of money away from candidates and political parties and towards independent expenditure groups is completely counter to the one interest expressed almost unanimously by the public – the desire for more political compromise and less hyper-politicization of campaigns.  As a 501(c)(4) organization, the Committee for Justice is well aware that (c)(4)’s and Super PACs cannot serve the unique and important role that political parties play in the political process, a role that is being weakened by McCain-Feingold’s aggregate limits.”

CFJ’s brief was authored by Emory Law School’s Supreme Court Advocacy Project and CFJ President Curt Levey.  A copy of CFJ’s brief is available upon request.


May 07, 2013

The Case for Citizens United

The Citizens United v. FEC decision has drawn a lot of criticism for giving corporations rights to free speech. Some have argued for a constitutional amendment to limit corporate speech. The CATO Institute recently published a Policy Analysis by John Samples making the case against these amendments. Samples writes,
Concerns about the putative political and electoral consequences of the Citizens United decision have fostered several proposals to amend the Constitution. Most simply propose giving Congress unchecked new power over spending on political speech, power that will be certainly abused. The old and new public purposes cited for restricting political spending and speech (preventing corruption, restoring equality, and others) are not persuasive in general and do not justify the breadth of power granted under these amendments.
The core of his argument is that any perceived negative effects of the Citizens United decision are not worth expanding the rights of congress to control freedom of speech.

Attacks on Religious Freedom

The Obama administration has made serious efforts to limit free exercise of conscience and religious speech in the public square. This is the position taken by Alan Sears writing for the National Catholic Register. He chronicles the administrations anti-religious policies,
the Obama administration's many attacks on religion include allowing U.S. taxpayer  dollars to be transferred to non-governmental agencies that perform abortions abroad; defunding successful efforts to halt sex trafficking for advocates opposing abortion; discontinuing the White House tradition of sponsoring an event on National Prayer Day; ordering the Justice Department to stop defending the federal Defense of Marriage Act; and eliminating the reference to our “Creator” when quoting the Declaration of Independence. 
Further, Sears argues that the passage of healthcare reform has hurt freedom of conscience,
The attacks on religious freedom escalated with the creation of Obamacare. The administration has ordered American employers to provide employee health insurance that covers “free” contraception, sterilization and abortion-inducing drugs — or face crippling fines. 

HHS Mandates

Writing for National Review, Ed Whelan explains the substantial burden created by HHS mandates related to the healthcare overhaul. He reasons,
the HHS mandate substantially burdens an employer’s refusal, for religious reasons, to provide health insurance that covers contraceptives and abortifacients. Simply put, the HHS mandate makes such refusal illegal and subjects the refusing employer to massive fines. Under clear Supreme Court precedent, this plainly amounts to a substantial burden.
The HSS mandate does not recognize an employer's freedom of conscience and requires them to provide coverage contrary to their beliefs. In a longer essay Ed Whelan addresses all issues related to the mandate.  

Obama and Free Speech

In an editorial by Elisha Maldonado for International Business Times  analyzes the implications of President Obama's speech before the United Nations. He writes,
If President Barack Obama was serious last week when he addressed the United Nations, then he just quietly declared war on the First Amendment. If he wasn't serious, then he is pandering to murderous mobs who demanded that he denounce an obscure YouTube video critical of their faith.  
In his speech Obama argued that it was time to "marginalize" those whose speech was slanderous and hurtful. However, Maldonado observes that,
"Slander" is speech. "Hate" usually takes the form of speech too. Is Obama calling on world leaders to join him in ridiculing nonviolent people whose speech he does not like? Or by “marginalization” does he mean something worse than tough words from the bully pulpit?  

CISPA and Cyber War

The Cyber Intelligence Sharing and Protection Act (CISPA) re-introduced by Mike Rogers (R-MI) has caused quite a bit of controversy over the past few weeks. Most express concerns about privacy and government access to information online. Writing for RedState, Neil Stevens makes the case for the legislation,
We need to be proactive, and that means putting together all the information we can about attacks past, present, and future. We need to be able to deal with attacks before the spin up fully. We need to pass along warnings before it’s too late. And that means we need legislation to prevent trial lawyers from making a mess of all of this. So that’s why it’s time to pass CISPA.
He addresses the argument against CISPA,
But nebulous privacy concerns are not an argument in themselves. Improving this bill is something that must be done in a constructive way.