I received the following email from Dan Crawford last evening:
Fwd: Blog Post Idea: SCOTUS Must Protect Free Speech in Ohio and Beyond
Is this interesting?
———- Forwarded message ———-
From: Kristen Thomaselli <email@example.com>
Date: Wed, Sep 11, 2013 at 6:25 PM
Subject: Blog Post Idea: SCOTUS Must Protect Free Speech in Ohio and Beyond
I wanted to share an oped from this weekend’s Wall Street Journal that I thought you might find interesting (http://online.wsj.com/article/SB10001424127887324009304579040671355619380.html and pasted below).
It’s by Brad Smith, a former chairman of the Federal Election Commission, and it focuses on one man’s fight in Ohio to exercise his First Amendment right to speak freely about political issues in his community. In his piece, Brad calls on the Supreme Court to accept this important case, as it could have huge ramifications for Americans’ First Amendement rights — and states’ efforts to deprive them of those rights.
Few people know more about these issues than Brad, so his piece is quite instructive — and could provide fodder for a great blog post.
Please let me know if you have any questions — or if you end up writing about Brad’s piece!
All the Best,
(202) 471-4228 ext. 101
Bradley Smith: The Supreme Court and Ed Corsi’s Life of Political Crime
How one Ohio man’s blog on politics got him in trouble with campaign-finance law.
By Bradley A. Smith
In the winter of 2008, Ed Corsi decided that he was tired of stewing about the politics in his home of Geauga County, Ohio, and the country at large. He started a website, put Thomas Jefferson’s quote, “The price of freedom . . . constant vigilance” at the top, dubbed the site “Geauga Constitutional Council,” and set about blogging his thoughts on local and national politics. So began his life of political crime.
Over the next two years, Mr. Corsi and a few friends would sometimes gather to talk politics. He occasionally sponsored meetings featuring speakers (not political candidates) on public policy issues (not elections), and charged a nominal fee for seating to offset his costs. He and two friends passed out political pamphlets they made at the Geauga County Fair.
Mr. Corsi spent $40 a month to maintain his website, and perhaps a couple hundred dollars a year in other expenses. According to the state of Ohio, however, these activities are illegal under campaign-finance laws because Mr. Corsi did not first register with the state, report to the state on his activities, and subject himself to the regulations governing the operation of a state political action committee.
When he was summoned to a hearing before the Ohio Elections Commission in April 2011, Mr. Corsi asked, “Do I have to hire a lawyer to [do] these things?” Commission Chairman Bryan Felmet replied, “Yeah, I guess so. I think that it’s very complicated without going to those lengths.” The commission ordered Mr. Corsi to register and report his activities to the state.
When the Supreme Court reconvenes in October, the big campaign-finance case will be McCutcheon v. Federal Election Commission, which nervous censors have dubbed “the next Citizens United.” McCutcheon deals with the ability of affluent Americans to contribute to political parties and candidates. Never mind that the candidates and causes these people support represent the views of millions of citizens. “Reformers” argue, and many Americans seem to agree, that “big money” in politics must be regulated.
It is inconceivable, however, that America’s founders thought the First Amendment would allow the government to routinely require citizens to report their political activity, and be subjected to such complex regulations. They wanted to prevent government from doing precisely this sort of thing. Yet Mr. Corsi lost in state court. Now he waits to see if the Supreme Court will agree to hear his case.
The “big money” in politics can afford the accountants, consultants and lawyers needed to cope with campaign- finance law. The burdens frequently fall more heavily on grass-roots politics-the very thing we ought to be encouraging. There also is abundant anecdotal evidence that the main result, if not the purpose, of campaign-finance laws is to allow political insiders and government officials to harass grass-roots activists. The IRS targeting scandals are merely the most prominent example of the way these laws are used by those in power to harass their opposition.
On his blog, Mr. Corsi was critical of Ed Ryder, the chairman of the Geauga County Republican Party and a member of the county Board of Elections, and of various officials and candidates supported by Mr. Ryder. The initial complaint against Mr. Corsi was filed by Mr. Ryder, who admitted spending two months to find out who constituted the “Geauga Constitutional Council,” so he could file a complaint against Mr.Corsi.
In Buckley v. Valeo (1976), and again in Federal Election Commission v. Massachusetts Citizens for Life (1986), the Supreme Court held that the regulatory requirements of operating a political action committee could not be imposed on groups that lacked the primary purpose of supporting or defeating political candidates in elections. But across the country, states are flouting that command, imposing rigid requirements on ordinary citizens who are trying to express their political opinions.
In Colorado, for example, a group of friends calling themselves the Coalition for Secular Government operate a website on which they posted a long policy paper on abortion and church-state relations. The paper concluded by urging Coloradans to vote “no” on a ballot measure. For that, the state says they must register as a political committee and report their activities, income and expenses.
Most state statutes now simply ignore the Supreme Court and require that two or more citizens who spend even nominal amounts on politics to register and report to the government. Even printing yard signs or running an email list can trigger these requirements. In Ohio, a single dollar in expenditures will do, so be careful if you talk politics over a cup of coffee.
As a former commissioner at the Federal Election Commission, I have seen the effects these laws have on citizen participation and civic-mindedness. I have read the plaintive letters from citizens who could not afford a lawyer, and could not believe their government was fining them for political activity.
In the past, both liberals and conservatives on the Supreme Court were sensitive to this problem. Liberal Justice William Brennan wrote the majority opinion in the Massachusetts Citizens for Life case. But that sensitivity appears to be vanishing.
Forty-seven years ago, in Mills v. Alabama, the court struck down a lawprohibiting election-day newspaper editorials, noting, “there is practically universal agreement that a major purpose of [the First] Amendment was to protect the free discussion of governmental affairs.”
Is that still true? Will the court leave millions of Americans who want to engage in politics at risk of prosecution? Will it leave Mr. Corsihanging?
Mr. Smith, a former chairman of the Federal Election Commission, is a law professor and chairman of the Center for Competitive Politics, which is representing Mr. Corsi at the Supreme Court.
Hmm. Happy to oblige, Kristen.
Yes, this is very interesting. Especially because Smith’s piece actually focuses on one man’s fight in Ohio to misconstrue Ohio campaign-finance law as impinging upon his right to speak freely about political issues in his community. Or as having anything to do with his right to speak freely about political issues in his community.
Or maybe it’s really about one high-profile Washington, D.C. lawyer’s longstanding anti-regulatory, anti-campaign-finance laws crusade. Bradley Smith, a former chairman of the FEC upon appointment by George W. Bush, is a longtime rightwing, anti-regulation crusader.
Which may be why he says in that piece that McCutcheon deals with the ability of affluent Americans to contribute to political parties and candidates, rather than that McCutcheon deals with the ability of affluent Americans to contribute as much as they wish to political parties and candidates.
Or maybe it’s just that factual accuracy is not his forte. He did, after all, baldly misrepresent in the op-ed that the IRS targeted conservative political groups, but not liberal ones, for harassment, saying, “The IRS targeting scandals are merely the most prominent example of the way these laws are used by those in power to harass their opposition.” Since actually the IRS used its power to try to prevent misuse of exemption regulations by liberal as well as conservative groups, that statement is merely the most prominent falsity in Smith’s article. But maybe the Ohio Elections Commission, unlike the IRS, would target only Republican social welfare groups. Hurray! Apparently Ohio law doesn’t exempt social welfare groups such as Mr. Corsi’s.
In any event, the issue in McCutcheon is whether it is unconstitutional for government to place any limits at all on campaign contributions directly to parties and candidates, not whether affluent Americans can be barred from contributing to parties and candidates within the same amount limitations as everyone else.
What is Smith’s forte, apparently, is the artful sleight of hand, the use of the non sequitur as sophism. Which may be why he claims that because the candidates and causes that, say, the Koch brothers want to financially sponsor represent the views of millions of citizens, the Koch brothers should be allowed to pay for millions of dollars of TV ad buys in order to try to persuade millions of other people to vote for these candidates.
Why, of course, David Koch should serve as campaign proxy for the minimum-wage Walmart employees he wants to enlist in his cause of lowering the Kochs’ income tax and eventual estate tax obligations, of disassembling the social safety net, of keeping the minimum wage at $7.40 an hour, and of ensuring the continuation of Chamber of Commerce control of the entire federal and most state judicial systems! The Kochs are altruists! The Walmart employees can’t pay millions of dollars in campaign contributions for TV ads that will convince them to vote Republican, so the Kochs will do that for them! (Tautologies are another Smith specialty, apparently.)
It may well be inconceivable, as Smith claims, that America’s founders thought the First Amendment would allow the government to routinely require citizens to report their political activity, and be subjected to such complex regulations. But the government does not routinely require citizens to report their political activity; it requires them to report–or rather, requires those to whom they give monetary support in election campaigns–to report that funding, so that those whose votes are solicited as a result will know who, exactly, is soliciting their vote.
And as for those complex regulations, anyone who complains about that should try instead to navigate, say, the federal court system as a non-corporate and non-wealthy litigant. It’s unlikely that America’s founders, or at least the Framers of the Reconstruction Amendments, thought the Constitution would allow the government to methodically turn the civil, criminal and habeas judicial processes in this country into bureaucratic regulatory labyrinths navigable only by rightwing crusaders, Chamber of Commerce members, others who can retain $1,000-per-hour “name” counsel, and state and local governments (dignity for states, except the ones that enact affirmative action programs!); no one else need apply.
Who knew that Rube Goldberg was a Federalist Society member?
And, while I do recognize that the Framers thought it fine that the right to vote be limited to the landed gentry and others who could afford to pay a steep poll tax, I’m not sure they actually had campaign contributions in mind when they drafted the First Amendment’s speech clause. Nor do I recall learning in Civics class that George Washington, et al., thought corporations are people, my friend. But maybe I was absent from school the day of that lesson. Or just didn’t attend Mitt Romney’s, Anthony Kennedy’s or Bradley Smith’s elementary school alma mater.
Unlike Mr. Smith, who, I guess, did. Which is nice for the Fab Five members of the Supreme Court. Mr. Smith, who went to Washington long ago, already has provided them the first draft of their opinion in the Corsi case. Justice Scalia will join his four other fair-weather dignity-of-the-states-crusading colleagues in striking down the Ohio statute, just as the five of them summarily struck down a Montana one last year, before he returns, briefly, to indignant-umbrage posture at the very suggestion that courts should strike down duly enacted legislation. Briefly is a very safe bet; there is, after all, another Obamacare challenge heading toward the Supreme Court. Not to mention the likelihood of another state-university-admissions affirmative-action case, surely soon.
I hope Ms. Thomaselli likes this blog post. If not, I can beef it up a bit. Trust me.