FAC 6 (First Amendment Conversations) The Law & Politics of Money: A Q & A with Professor Richard Hasen – Part II
This is Part II of my interview with Professor Richard Hasen concerning his new book Plutocrats United: Campaign Money, the Supreme Court, and the Distortion of American Elections (Yale University Press, 2016) (cloth: $32.50, 256 pp.). Part I of my first interview appears here.
→ A hyperlinked list of previous FAC interviews can be found at the end of this Q&A.
→ First Amendment News (FAN 100) will return next Wednesday.
Is Compromise Possible?
Collins: “Any set of limits and rules” on campaign funding, you have written, “must be careful not to squelch too much political speech and competition.” To that end, in your book you propose a compromise:
“An individual or entity may contribute, spend from one’s own personal or general treasury, or both, no more $25,000 in each federal election on election-related express advocacy or electioneering communications supporting or opposing candidates for that election. Such limits shall not apply to the press, to political committees that solely spend contributions received from others, or to money contributed or spent in a voluntary government-created public finance program. An individual also cannot contribute and/or spend more than $500,000 total on all federal election activity in a two-year election cycle.”
In light of your “brief formula,” permit me to make a comment and then ask but three questions, the kind that would be raised time-and-again by election-law lawyers who make it their business to circumvent such rules:
Comment: Since you equate the spending of electoral monies with speech, your formula seems like another way of saying that the Government may dictate when a citizen may or may not speak during an election. Is that a fair statement? If so, how does it square with the command that “Congress shall make no law”?
- Would your proposed law apply to an “entity” that created 20 other entities, say non-profit corporations, and then gave them each $500,000 to be spent during a two-year federal election period? Presumably, the $500,000 cap would not bar this since it applies to an “individual.”
- Do “electioneering communications” as you understand those terms include books, including e-books?
- Would your proposed rule bar a Rupert Murdoch or George Soros from starting a “Save America” TV cable station, the purpose of which was to advance certain political candidates and causes? Presumably it would not bar this since your limits do “not apply to the ” True?
Hasen: I find the entire question whether “money is speech” to be an unhelpful way to think about the question. Money facilitates political speech, and we all agree that a law which would completely bar anyone from spending any money to support or oppose a candidate for office implicates the First Amendment.
Similarly, I find the use of the “Congress shall make no law” formulation also very unhelpful. Of course, it is no law abridging the freedom of speech, and we all agree that some laws which limit speech may be constitutional.
Consider, for example, a federal law that barred Canadian lawyer Benjamin Bluman from spending 50 cents at Kinkos to make flyers saying “Vote Obama” to distribute in Central Park. That’s a law some might say limits freedom of speech. Yet, as I quote in Plutocrats United, Floyd Abrams, Bradley Smith, and James Bopp (three leading First Amendment deregulationists) believe the federal ban on someone like Bluman spending a penny on election-related advertising is consistent with the First Amendment. I urge you to read the quotes on this point in the book, which show that, contrary to Citizens United, sometimes the identity of the speaker does matter for First Amendment purposes even to ardent opponents of regulation.
So let’s move beyond clichés about “no law” and “censorship” and “money is speech” and recognize that all of us believe that in certain circumstances the government has a compelling interest in limiting campaign spending. The question then is when and how.
- I should have stated this aspect of my proposal more clearly. We would need anti-circumvention rules that prevent the creation of shell corporations and other artificial entities for the purpose of getting around campaign limits.
- The term “electioneering communications” originates in the Bipartisan Campaign Reform Act (more commonly known as McCain-Feingold), and it applies only to certain television and radio ads broadcast close to an election featuring a candidate for office. My proposal would extend to those, as well as to Internet based advertising which is like television and radio ads, not e-books. This question, for the uninitiated, echoes a question Justice Alito asked at the oral argument the first time the Court heard Citizens United v. FEC. Justice Alito asked if Congress had the power to “ban” books. I discuss this question (and the right answers) in detail in my book.
- Of course they could set up a TV station. Think of Rupert Murdoch owning FOX News or Sheldon Adelson recently buying the Las Vegas Review Journal. And these entities get the press exemption, so long as they are bona fide press. I offer tests for how to figure out what the press is, especially in the social media age, in my book. One example I give is NRA News, which started out as a way of pushing the boundary on what counts as press. In the end, NRA News became a bona fide press entity.
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