Another Court Criminalizes Political Activity -- Will It Be Applied Equally?

The U.S. Court of Appeals for the Eighth Circuit has ruled, in United States v. Benton (8th Cir. May 11, 2018) that three officials from Ron Paul's 2012 presidential campaign committed criminal acts by (1) paying an Iowa State Senator for various services, including his endorsement, through a sub-contract with a video production vendor and (2) reporting the purpose of the expenditure as "audio/visual services."

The State Senator indeed provided "audio/visual services" to the Paul campaign by recording telephone messages and appearing on television for the Paul campaign.  He also traveled for the campaign and encouraged support for the campaign.  But federal prosecutors claimed the main purpose of the payment was the State Senator's "endorsement," which was not reported as the purpose of the payment.

All three of the Republican political operatives were convicted and punished.  One had his house raided and went to prison.    

The ruling has serious implications for the Hillary Clinton campaign and the Democratic National Committee.  News media have reported that the Clinton campaign and DNC funneled money to the Perkins Coie law firm, which in turn sub-contracted with an opposition research firm, Fusion GPS, which in turn sub-contracted with a foreign operative, Christopher Steele, to perform opposition research about Donald Trump.  The foreign operative reached out to Russians with Kremlin connections for information that might harm Donald Trump's candidacy.  The Clinton campaign reported the purpose of its payments to Perkins Coie as "legal services."  One liberal group has filed a complaint with the FEC over the activity. 

RNLA member Prof. Brad Smith noted that this decision could impact Perkins Coie:

“If I'm Perkins Coie, right now I'm a bit nervous about the reporting of payments to Fusion GPS,” said Brad Smith, a former FEC chairman and current chairman of the Institute for Free Speech.

Republicans do not support the criminalization of politics.  But Republicans do respect the rule of law and equal justice.  

Top 10 Republican Lawyer Posts for 2016

Here are the top 10 posts for 2016 from The Republican Lawyer blog.  These posts show how the left is trying to destroy the First Amendment and how out of control the Obama Administration was on matters of speech.  Furthermore, they prove once again how Donald Trump’s victory was also a victory for the Constitution. 

10. "Judge Sanctions DOJ Attorneys for Putting Politics Ahead of Truth, Ethics, and Justice."  We will be happily working to confirm Senator Sessions as Attorney General to fight the ethical abuses and politicization of the Department of Justice under President Obama. 

9. "Brennan Center: The Only Democrats in New York who Don't See Vote Fraud." Any honest Democrat in New York would admit to you that vote fraud is real and that voter ID is needed; just most know that partisan groups like the Brennan Center will attack them for saying it.

8. "Democrats Keeping the Zombie Vote Alive."  Colorado Secretary of State Wayne Williams stated:  "It is impossible to vote from the grave legally” but apparently Democrats do it anyway. 

7. "Former SEC Commissioners Reject Political-Disclosure Rulemaking."  Obama Administration efforts to force mandatory disclosure of corporate spending on political and other advocacy activities should be viewed as primarily political rather than economic and, as such, would not serve to help shareholders evaluate corporate performance or promote shareholder value

6. "FEC Democrats Vote to Censor Books, Documentary Films."  FEC Democrats voted to assert regulatory power over books and films.  That means they believe the FEC has the power to censor certain books and documentary films.

5. "Congress Shall Make No Law: Protecting the First Amendment from Attack."  Preventing attacks on the First Amendment can only be done through fighting back against speech suppressive activity.

4. "RNLA Explains What Open, Fair and Honest Elections Mean."  By “open,” we mean a process in which all sides can have “observers” and the process is determined by legislatures well in advance.  By “fair,” we mean election officials should be from both parties and they should administer the election process in an orderly, unbiased fashion.  By “honest,” we mean free from fraud.

3. "Reactions to Donald Trump's Potential Supreme Court Justice List." One of the most popular issues for Donald Trump was his list of potential Supreme Court nominees. 

2. "Leader McConnell Won the Fight on the Scalia Vacancy."  Thank you, Sen. McConnell, for your leadership on judicial nominations and fighting to protect the judiciary from judges who will legislate from the bench and not respect the rule of law and the role of the courts.

1. "A Great Justice, Ignored Because of his Race."  The left excludes Justice Clarence Thomas from the National Museum of African American History and Culture despite his remarkable and impactful 25 years on the court.  

FEC Democrats Vote to Censor Books, Documentary Films

Last week, FEC Democrats voted to assert regulatory power over books and films.  That means they believe the FEC has the power to censor certain books and documentary films.  After the famous colloquy between Justice Alito and the federal government in the Citizens United case, FEC Democrats still have not learned there are limits on the FEC's power to restrict free press rights.  The vote was on a motion by Commissioner Lee Goodman to add books and films under the categories of press protected from regulation under the FEC's Press Exemption.  Listen to the debate here, at minutes 8:53 - 22:30.  

FEC Democrats Vote in Favor of Regulating the Internet...Again

We recently discussed how the three Democrats on the FEC voted to ignore the settled exemption from campaign finance regulations granted to internet communications in the complaint against Foundation for a Secure and Prosperous America:

Democratic Federal Election Commissioner Ann Ravel moved this week to deny a conservative nonprofit group legal protections that exempt most online political communications from federal political spending limits and disclosure laws. 

Experts say the move is an attempt to undermine the “internet exemption,” as the provision is known, without going through normal legislative and regulatory processes. In effect, they say, Ravel was denying legal protections to the group simply because she disagrees that those protections should exist.  

The FEC Democrats voted against applying the internet exemption in yet another complaint regarding internet videos:

The commission also split 3-3 in a recent case that asked if the Internet exemption also exempts a webcast of a discussion with political candidates that provides a link to contribute to candidates. The Republicans said it was exempt; the Democrats disagreed.  

Goodman, a Republican, said the decisions are likely to have a chilling effect on free speech. 

“Political speakers who are careful about what they do, and who are advised by lawyers, may be chilled from communicating on the Internet, in the light of a 3-3 divide on the commission,” he said. “There is definitely a chilling effect.”

As the FEC is currently constituted, the three Republican commissioners protect against the Democrat commissioners ignoring the law to regulate speech on the internet, but there are proposals to change the composition of the FEC:

Goodman said while the 3-3 split on the commission stalls any Internet regulatory push, he warned that if legislation in Congress passes to make the body a five-person body, it could give the Democrats the majority they need. 

“If the commission were to be reconstituted, I believe we’re looking at full-blown regulation of political speech on the Internet,” he warned.

We thank Chairman Petersen and Commissioners Goodman and Hunter for standing up for the rule of law and protecting free speech on the internet.

Double Standard FEC Democrats

Following up on our post of Tuesday, a month ago, yet another organization, Foundation for a Secure and Prosperous America, posted videos on YouTube.  The three Democrat Commissioners voted against applying the Internet exemption to dismiss the case.  This is the second time in two years the Commission split 3-3 over YouTube videos posted for free.  The Republican Commissioners' Statement on the case can be found here.   

Both times, Commissioner I-Don't-Apply-The-First-Amendment Ann Ravel issued statements explaining that she voted to countermand existing law because she -- get this -- needs additional information about technology and politics before she can vote to enforce well-established law.  Well, Commissioner Ravel has been on the FEC for three years.  She's had three years to get the necessary information.  But her votes to countermand the 2006 Internet exemption aren't about more information -- Commissioner Ravel tried to regulate bloggers as head of the California Fair Political Practices Commission and she's still trying to regulate free speech on the Internet at the FEC.   Her obfuscating Statement can be read here.   

Of course, a few months ago, Ravel, Weintraub and Walther needed NO additional information about technology in politics in order to apply the Internet exemption and vote to dismiss a complaint against Obama for America. So the 2006 Internet exemption remains good law when it's convenient.  The Commission's Factual & Legal Analysis dismissing the Obama campaign under the 2006 Internet exemption is located here. 

So much for consistent treatment of all Americans under the rule of law as duly adopted and written.    

An Honest Liberal on Citizen's United

Both Hillary Clinton and Bernie Sanders have stated they will only appoint Supreme Court Justices who will overturn Citizens United, a promise that would go against judicial ethics.  Noted liberal Michael Kinsley points out why they are wrong on the substance:

The First Amendment right of free speech is generally considered to be a liberal cause. So it's disappointing to see how quickly liberals abandon it when the speech is something they disagree with. Money isn't speech? Ridiculous. Of course it is.

As Kinsley further explains:

Liberals hope that someday the Lousy Decision Hall of Fame will include Citizens United v. Federal Election Commission (2010), which held that corporations (and unions) have the right to free speech under the First Amendment. . . . For liberals, Citizens United has come to represent the nefarious role of money in politics, which many feel has eroded if not destroyed our democracy. Money is blamed above all this year for Donald Trump, although Citizens United doesn't apply to him if, as is widely supposed, he is a human being and not a legal fiction.

Kinsley cattiness aside, the success of Trump and for that matter Sanders proves that Citizens United is not the bogey man the left makes it out to be.  One of the reasons Kinsley cites:

The analogy I like (as did the Supreme Court in its ruling) is to a newspaper. Suppose Citizens United were reversed and President Trump decided one day that he was sick of The New York Times. So he proposes a law setting a ceiling on the amount any individual or organization can spend putting out a newspaper. Constitutional? I hope not. But it's hard to see the difference in principle between this and a law limiting the amount a corporation or union may spend promoting a political candidate.

Part of the left’s opposition is based on scoring political points.  Part it is just wrong.  Kinsley has it right.  

Hillary Clinton's Wisconsin Speech, Part 1: Hypocritical Attack on Citizens United

Among other things, Hillary Clinton discussed using a litmus test for potential Supreme Court justices during a visit to Madison, Wisconsin, yesterday. We addressed a similar issue some time ago coming from another Democrat, Bernie Sanders.

Hillary made several comments about election law during her speech, echoing the earlier comments from Sanders on current election law:

A lot of Americans are concerned about money in politics, and rightly so. It’s a serious problem that we have to address.  

But Supreme Court justices are appointed for life.  They’re not making decisions based on campaign contributions . . . . And consider, if you will, the dangerous turn the Court has taken in recent years toward protecting the rights of corporations over those of people. 

Now you may have heard of the case Citizens United.  The Court ruled that corporations have an unfettered right to free speech, just like you and me.  That means no limit on what corporations can spend independently to influence elections.  And – big surprise – a flood of money from rich people, corporations and special interests has poured into our politics.  

Citizens United opened the door to the creation of Super-PACs and between the 2008 and 2012 presidential elections, spending by outside groups tripled.  In 2014, the top 100 donors to super PACs spent nearly as much as all 4-million-750-thousand small donors in the country combined.  

Now the idea, I believe, that money is speech turns our Constitution upside down.  Wealth should not be privileged in the courts – in fact, it should have no privilege.  Yet at a time when inequality between working Americans and those at the top is starker than ever, the Supreme Court has given the wealthiest Americans even greater power to affect what happens in our democracy.  

. . . If the Court doesn’t overturn Citizens United, I will fight for a Constitutional amendment to limit the influence of money in elections.  It is dangerous to our country and poisonous to our politics. 

Hillary seems exceptionally concerned about super PACs. Yet the super PAC supporting her is leading the fundraising race of the super PACs supporting all candidates remaining in the field. She is benefitting from the corporate spending and speech that she rails against.

As we have detailed regarding Clinton's calls for a constitutional amendment to overturn Citizens United in the past, scholars on the right and left agree that such an amendment would have disastrous effects on the right to free speech and protect the power of the political establishment against the voice of ordinary citizens.

The assertions in the statement above speak to Clinton's misunderstanding of the importance of free speech, the nature of the political system, and the purpose and power of the Judicial Branch, especially given the clearly articulated ABA Rules of Judicial Conduct. On one hand Clinton argues that the Court has a great deal of impact and should be respected; on the other she states that it’s irrelevant and she will work to amend the constitution should the Court decide contrary to her assessment of Citizens United. 

The next target for the Democrats? Freedom of Speech.

The NY Times released a transcript of the Democratic debate that took place on February 4, 2016. The debate took place in a vivid dream world where priorities, reason, and logic cease to exist and are replaced by individual desires, general disregard for the laws and judicial system of our country, and a desire to place limitations on our freedom of speech. It is a world where hopeful democratic politicians believe that being president would grant them the right to throw Supreme Court decisions out the window and threaten our most fundamental of rights. The level of absurdity was ample, depressing, and quite frankly terrifying.

MODERATOR: So there are three big lifts that you’ve talked about: immigration, gun reform, climate change. What do you do first? Because you know the first one is the one you have the best shot at getting done.

[. . . ]

[SEN. SANDERS:]

... I am absolutely supportive of comprehensive immigration reform and a path towards citizenship for 11 million people today who are living in the shadows. All right? We got to do that.

But you miss — when you looked at the issues, you missed two of the most important. And that is you’re not going to accomplish what has to be done for working families and the middle class unless there is campaign finance reform.

No nominee of mine, if I’m elected president, to the United States Supreme Court will get that nomination unless he or she is loud and clear, and says they will vote to overturn Citizens United.

Thus, according to Sen. Sanders, one of the most important problems facing our country and one of the first things he would do as president is overturn Citizens United v. FEC. With all due respect Sen. Sanders, it does not work that way. I wonder where he got that idea. Perhaps, it was through watching the actions of our current administration.

Sen. Sanders' sheer level of disconnect from the actual problems facing this country is almost unfathomable. Poll after poll, citizens point to general economic/employment concerns, immigration, terrorism, and the federal budget/deficit as the most important problems for the United States. 

Overturning Citizens United would have a drastic effect on our First Amendment rights, as without it, books could be banned in the United States.  Our freedom of speech is under attack and overturning Citizens United is merely the first shot.  If this is the type of issue that is the top priority for a potential Sanders administration, I shudder to think of what other fundamental rights would come under fire if he became President.

Buckley. Defender of First Amendment Rights, Slayer of Political Equality Ideology.

Buckley v. Valeo has recently turned forty. This case may not be as recognizable as others in our lifetime, but its imperfect yet continuing role of protecting our rights under the First Amendment is unquestioned. One key but often forgotten aspect of Buckley is how it protects us from forced equality of speech. Former RNLA campaign finance blogger Paul Jossey points out that without it, the absurd idea of political equality in this country would have continued to proliferate.

On the positive side Buckley’s wending opinion cemented its place in First Amendment lore with a single line: “[T]he concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.” Buckley thus rejected “political equality”—equity being decided by those in power—as a legitimate reason to subjugate individual speech rights. Instead government could only curtail speech in order to combat “corruption” or its “appearance.”

By forbidding government from rationing speech through equality, Buckley unshackled the political marketplace that has since flourished with competing and diverse voices. Contrarily the Court’s stance provided perpetual heartburn for a generation of would-be speech policers. Politicians who abhor criticism cite equality as a rationale to abate individual First Amendment rights. Academics—particularly the Harvard law faculty—have supplied intellectual support for their fight. 

Buckley changed the political landscape. In addition, it continues to protect our First Amendment rights by rejecting the irrationality of political equality in the United States political system.

More Liberal and Obama Adminstration Attempts to Chill Free Speech

Is the key to violating campaign finance laws to the left is who violated them?  If it is someone like the Clintons, all is forgiven and Bill Clinton’s chief campaign finance advisor is hired to run the Brennan Center.  If it is someone who is critical of Barack Obama, well then all hell breaks loose.  Andrew McCarthy details some of this in his review of Dinesh D’Souza’s new book “Stealing America: What My Experience with Criminal Gangs Taught Me about Obama, Hillary, and the Democratic Party.”

To be clear Dinesh D’Souza did break the law and deserved to be fined. 

D’Souza forthrightly concedes that he violated the law. Wendy Long, his good friend and Dartmouth classmate, was waging a futile campaign against incumbent U.S. senator Kirsten Gillibrand (D., N.Y.). With the press of business leaving him unable to be more of a campaign presence, D’Souza decided to provide financial support. He had, however, already donated the personal maximum of $10,000. So he convinced two friends to be nominal contributors, with D’Souza reimbursing them the combined $20,000.

While D’Souza is guilty, he did not do so as a quid pro quo.  He also did not do so to gain favor as so many Democrat donors have done from the Riadys to the Clintons, to the donors to the Obama campaign in 2008 (fined only), the IRS employees who went after tea party groups, etc.  D’Souza was merely overly eager to support a friend who had no hope in winning her Senate Race.  Normally this would not be a big deal.  However, D’Souza had released a book and a documentary critical of President Obama.  Thus, Obama’s Department of Justice came down hard on D’Souza. 

It is no coincidence, D’Souza convincingly argues, that the Obama Justice Department scorched the earth to convict and attempt to imprison him. The brazenness of its aggression took the breath away from such hardened criminal-defense attorneys as Harvard’s Alan Dershowitz, an Obama supporter who found the vindictiveness of D’Souza’s prosecution shameful, and Benjamin Brafman, the legendary New York City defense lawyer who represented D’Souza.

The political progressive Brafman went from almost dismissing D’Souza as an Obama conspiracy theorist, to becoming a believer that D’Souza prosecution was another vengeful attempt by liberals to silence the speech of their critics.

Among the highlights of the book is the transformation of Brafman, another political progressive, who started out believing that D’Souza was paranoid to think that the president of the United States even cared about his case, much less had it in for him, but ended up convinced that D’Souza had been railroaded. The conclusion is inescapable: His client was indicted in a matter routinely disposed of with a fine; to get bail, D’Souza had to post a bond of $500,000 (i.e., $125,000 more than the mere fine the Justice Department allowed the Obama 2008 campaign to pay in settlement of violations geometrically larger than D’Souza’s); to pressure D’Souza to plead guilty, prosecutors gratuitously charged a second felony count — a “false statements” offense that should not have been added since a campaign-finance violation necessarily involves a false statement; after D’Souza did plead guilty — rather than risk seven years’ imprisonment — Justice pressed the court to impose a 16-month jail sentence despite the de minimis nature of the crime; and, in so pressing, prosecutors blatantly misrepresented the applicable sentencing law.

The last straw for Brafman was the start of the sentencing hearing, when Judge Richard Berman subjected D’Souza to a bizarre tongue-lashing. Clearly, the jurist appointed by President Bill Clinton was poised to accede to prosecutors’ demand for a prison term. The outraged lawyer responded with a tour de force, placing the case and D’Souza’s basic decency in context. It worked: Berman was dissuaded from imposing a prison term.

So with  an illegal but pointless attempt by an Obama critic to help a friend in a hopeless Senate race the Obama Department of Justice comes down with full force.  However, when the IRS attempts to stop the efforts of a number of conservative tea party groups in an effort to influence a Presidential election, the Department of Justice does nothing.  The left is at war with free speech and the D’Souza case is just another example of their efforts to chill free speech.  

Senator Warren's war on academic freedom

Senator Elizabeth Warren (D-MA) obviously doesn’t think much of her former colleagues in academia. Last week she forced the resignation of a Brookings Institute researcher who disagreed with her about the costs of a labor rule she and the president support by claiming his study’s funding source conflicted his findings. 

Apparently Ms. Warren believes economist Dr. Robert Litan would discard a 40-year affiliation with Brookings, including time as its director of economic studies; a government career, which included associate director of the Office of Management and Budget in the Clinton administration; and his reputation for integrity all for the grand total of $38,000.

Her bullying worked; Mr. Litan resigned from Brookings within hours of Warren’s objection.

That Brookings head Strobe Talbot would fold like a cheap suitcase on the pressure of nothing more than a piqued letter says as much about Warren’s power as it does his fortitude.

The progressive icon apparently believes scholarship is illegitimate if funded from an unbefitting, i.e. nongovernment source. As the Wall Street Journal noted, “The Warren agenda is to force liberal intellectuals to report that government is an unalloyed good, business is bad, and corporate sponsorship is corrupt. This is corrosive to the Democratic Party and the country.” (For his part Litan stands by his work and invites academic challenges to his conclusions).

Warren’s approach aligns with her tendency to shut up anyone who doesn’t agree with her all while hiding her own questionable conflicts. And it’s not just the Journal that found her actions untoward. Her war on academic freedom is not playing well even in Democrat circles.

A group of left-leaning economist blasted the Bay State Senator in a letter shortly after the Litan scalping. The group which included Harvard professors and former Clinton administration officials stated, “Those who differ with Litan should offer a substantive rebuttal to the paper in question, which would do much more to clarify the issue than implicitly depicting him as being inherently corrupted by the sponsorship of his work . . . To attack him as being ‘bought,’ or to sever ties with him over an incidental bureaucratic issue, is below the standards that support free and open policy debate.”

But this assumes Warren wants “free and open policy debate.” The evidence suggests the opposite. She has called for ending the democratizing effects of Citizens United v. FEC, through a First Amendment-inimical constitutional amendment. In her last campaign she promoted the so-called “Peoples Pledge” which did nothing to lower costs but lots to diminish the number of speakers hostile to her campaign. And in that same race she demagogued corporatism while coyly avoiding discussing her own former corporate clients.

But that’s just the beginning. As National Review reports:

The senator maintains a cozy relationship with Better Markets, a Washington, D.C.–based 501(c)3 organization funded almost exclusively by multi-millionaire hedge-fund manager Michael Masters. The hedge funder’s advocacy group is so tight with progressives’ favorite senator that the two often operate as a united front in the fight for stricter financial regulations — Better Markets’s stake in the finance industry notwithstanding. . .

By failing to adequately disclose its relationship with Masters to lawmakers, observers say Better Markets is doing exactly what Warren accused Brookings of doing — covertly taking money from a finance-industry player to influence regulators with the power to approve policies from which that player can earn huge profits.

Apparently for Warren, full disclosure and disqualifying conflicts, as her former Harvard colleague Larry Lessig might say, is only for the little guy.

By Paul Jossey

CREW affiliate attempts to stifle speech in Colorado

When Hillary Clinton-votarist David Brock “acquired” Citizens for Responsibility and Ethics in Washington (CREW) last August DC insiders immediately recognized the significance. Politico described it as “a major power play that aligns liberal muscle more fully behind the Democratic Party . . . The reconfigured CREW [will] expand its focus into state politics and donor targeting and will operate in close coordination with Brock’s growing fleet of aggressive Democrat-backing nonprofits and super PACs.”

Brock has since moved on to opposition research for Hillary Clinton’s presidential campaign but his partisan imprint on CREW’s Colorado affiliate, Colorado Ethics Watch (CEW), was hardly necessary. Since 2006, the “watchdog” has used the state’s imprimatur to amass a resume of complaints against Centennial State conservative groups—chilling speech rights in the process. But an upcoming ruling from a federal judge may finally expose CEW’s nefarious methods and motivations.

Last year CEW used a private-enforcement provision in Colorado’s campaign finance statutes to sue Rocky Mountain Gun Owners (RMGO) and Colorado Campaign For Life (CCFL). The alleged illegal activity centered on some mailers sent to Republican primary voters discussing their issues as the election approached. The groups did not engage in “express advocacy”—overt political activity—but merely wished to inform voters of candidate positions during the time they are most likely paying attention.

Courts since Buckley v. Valeo have repeatedly afforded public policy organizations greater relief from campaign finance strictures than straightforward political outfits like candidate committees, parties, and now Super PACs. RMGO and CCFL are 501(c)(4) nonprofits that engage in advocacy about contentious and highly emotional issues. Donor privacy enables these groups to advocate without fear of reprisal from either government or agitprop concerns like CEW. Nevertheless CEW demanded these groups reveal any donors that gave a mere $250 dollars for electioneering communications.

With paramount First Amendment rights at stake, the groups instead sued the state and CEW on constitutional grounds. The groups believe CEW engages in retaliation and viewpoint discrimination against speakers they disagree with, and the numbers back them up. By one count 41 of the 52 prosecutions CEW has undertaken have targeted conservative groups. Of the other 11, 10 were either unknown or against government. 

Like its parent organization, CEW realizes ‘the process is the punishment.’ Forcing policy-oriented nonprofits to defend legal actions at the height of the election season diverts time and resources away from advocacy, stifling their message. The plaintiffs’ lawyers, led by RNLA Board of Governor Member David Warrington, have sought to depose CEW principals to discern whether they bring suits for improper means. According to Warrington:

CEW has employed a pattern of pretextual targeting of conservatives and conservative groups. Plaintiffs anticipate that such discovery will demonstrate CEW’s animus towards their organizations, their bad faith motives in bringing the state court case, and their intent to retaliate for political speech based upon disfavored viewpoints.

Unsurprisingly CEW has reacted with the customary umbrage of ‘ethics’ watchdogs when placed on the defensive.

Regrettably the situation is not unique to Colorado. FEC Commissioner Lee E. Goodman created a stir last week when he asserted employing hard deadlines for resolving enforcement decisions would disproportionately harm conservative groups—currently 49 of 65 docketed FEC actions. Even more than Colorado, Washington is awash in ‘complaint mills,’ like the Brock-connected American Democracy Legal Fund, whose website consists of nothing but actions against Republicans. Campaign Legal Center and Democracy 21 are now even asking the Justice Department to police federal campaign finance statutes because of what they perceive as Republican Commissioner intransigence.  

Of course lost in the calls for “enforcement” of the laws and ever more regulations is the toll on First Amendment guarantees. When a technology executive is hounded out of his job for a six-year-old contribution, or a google cam is focused on one’s home, or as in Wisconsin, overzealous prosecutors turn peoples’ lives upside down on a  coordination “theory,” the system is off kilter. When as little as a $250 donation can potentially wreak havoc on someone’s life and livelihood the real goal is not information but silence. RMGO and CCFL are hopefully taking the first steps toward rebalancing.

By Paul Jossey  

The FEC, ‘the system,’ and the cave

Amidst alleged intractable difficulties, FEC Chairwoman Ann Ravel has been hosting vanity panels and blitzing reverent media with woebegone tales of Commission “paralysis,” “dysfunction,” and “public betrayal.” Despite her full schedule, however, her quest’s philosophical underpinnings remain in tatters. 

Ravel hosted the controversial Women in Politics

forum last week. The confab produced questionable substance even putting aside obvious concerns over authority for taxpayer-funded forays into chromosome politics. 

By the Inter-Parliamentary Union’s count, the U.S. ranks 73rd in female legislators. The top five, however, are hardly preferred realms of emulation: 1. Rwanda, 2. Bolivia, 3. Cuba, 4. Seychelles, and 5. Switzerland.

Nevertheless, what’s to be done about America’s political XX crisis? One panelist suggested dismantling our economic system. ‘No Capitalism, No Cry,’ as the song goes.

Harvard professor Pippa Norris had an equally drastic proposal: “I know in America . . . it’s a radical revolutionary – I won’t say left-wing agenda [editor’s note: go ahead Pippa you can say it] – but nevertheless brand new idea . . . If you’re in Britain and you’re running as a candidate of any party, you can’t really spend that much money – $15,000 to $20,000 maximum . . . You can’t buy ads, so that gets rid of that. You shove a pamphlet through people’s doors, that’s it, and then you meet people.”

Eureka! Abolish the First Amendment and gender parity ensues! Except the percentage difference in U.S. and U.K. female legislators barely registers: lower house 3.4%; upper chamber 4.1%. Eradicating our free speech tradition seems a high price for a miniscule rise in female participation. One might also inquire if the Brits like their constrained system. They don’t. Nine out of ten people say the UK government is run by a few big entities acting in their own interests. A 2006 NGO report stated, “Trust in politics and politicians is low and the UK political establishment is perceived by the public to be the most corrupt of any UK institution.” Of course as Larry Lessig has proven time and again, Harvard’s imprimatur inspires a certain devil-may-care nonchalance about pedestrian issues of academic rigor.

Although unfortunately absent from the forum, Lessig and Ravel do share a populist philosophical view of campaign finance. As articulated by Brookings Institute’s Jonathan Rauch:

The populist school equates legitimacy with direct participation by ordinary individuals and corruption with intermediation or influence on the part of organizations or interests, especially large or wealthy ones. For the populist reformer, the solution to almost any political problem involves more democracy, more participation . . . For the populist . . . private money . . . is corrupting—unless it comes from small donors, in which case it counts as participation (even if the government has to purchase said participation with a tax credit and a six-fold match) . . . . For the populist, transparency is virtuous in and of itself . . .

Ravel concurs: “Somehow we have to get to a system that encourages people to participate not just by voting but by giving money so that the policy needs of most people will be listened to as much as those of wealthy donors . . . The system is bad for everyone . . .”

There are several shortcomings with ‘the system’ approach to campaign finance. First it’s empirically deficient. Second it incorrectly assumes popular political involvement is artificially less than some more perfect baseline. Third, it mistakes ordinary transactional politics with corruption. And fourth it’s doctrinally unworkable; as Rauch explains, “The system is corrupt’ [is] a good statement of the ideology which has made modern progressivism an inherently unstable and uncontainable doctrine.”

As a philosophy major, Chairwoman Ravel is surely familiar with Plato’s allegory of the cave. In it, Socrates explains the existence objective truth beyond what some choose or are even capable of understanding. One who has left the cave and experienced sunlight may find themselves ridiculed when returning to explain truth to the cave’s permanent dwellers.

Lessig and Ravel cast themselves as enlightened sunbathers nobly teaching obdurate cave dwellers. And yet, their real problem is misconstruing the populace. It’s not that those who look askance at hipster adverts, keep electing the wrong gender, and spend their time away from theoretical arguments need teaching, they just aren’t buy ‘the system’ remedy. The internet provided the light; no one is left in the cave. 

By Paul Jossey