Wednesday, May 28, 2014

Using the First Amendment to shut others up

One emerging axiom in the perpetual war over campaign finance law is those who seek to silence others shout the loudest. No two fit the zeitgeist better than Harry Reid and Campaign Legal Center. The unfortunate irony is both use the very protections enshrined in the Constitution to foster speech as a bludgeon of suppression.

For the luckily unaware, Senate Majority Leader Harry Reid really doesn't like conservative funders Charles and David Koch. He daily takes to Senate floor spewing ad hominem invective at the media-shy capitalists. They are, according to Mr. Reid, “un-American,” responsible for all manner of national ills from global warming to healthcare.  

The Constitution protects Mr. Reid’s speech from civil consequences as he dutifully tries to shame the Kochs into shutting up. First, the Speech or Debate Clause gives Reid immunity from the—in some cases—provable lies he daily spouts. Like Joseph McCarthy before him, Reid has taken advantage of this constitutional protection. Unlike McCarthy, however, Reid benefits from a compliant media more interested in discussing his “strategy” than the wickedness of his acts. 

Second, Reid is protected by the First Amendment’s public-figure doctrine. This status elevates the civil liability standard. Thus even if Reid were not a Senator, the Kochs would have to prove he acted with “actual malice”—perhaps not a difficult barrier after all.  

Campaign Legal Center also employs the First Amendment—the right to petition the Government for redress of grievances—to demonize and chill the speech of their opponents. And petition it has. By their own account, CLC has been on a three-year crusade to have the IRS declare Crossroads GPS a “527”—essentially a political group, which must reveal its funding sources.

CLC’s crusade has included 11 letters to the IRS complaining about the group—the first penned just one month subsequent to Crossroads’s IRS application. The letters are, of course, coordinated with attendant press releases and other accoutrements of a public pressure campaign.

And like Harry Reid, CLC’s bombast is short on facts. The organization has never much concerned itself with the veracity of its public statements; see here and here. Its Crossroads crusade is no exception.

As Allen Dickerson of the Center for Competitive Politics explains, in their zeal to demonize Crossroads, CLC engages in a flurry of misstatements and half-truths. CLC erroneously states a staff report by the Federal Election Commission’s Office of General Counsel “confirms” their position Crossroads should be classified a “527.” But the OGC merely recommended an investigation. And regardless, whatever OGC proposes must be adopted by at least four Commissioners to be an authoritative FEC position. That did not happen, the Commission split 3-3 on whether Crossroads was primarily political.

The deadlock is a further source of obfuscation. CLC asserts the vote means the Commission “takes no official position on the matter.” But for purposes of federal election law, the deadlock means the dissenters’ opinion controls, staying further Commission-level action.

CLC’s insistence on oppressive IRS oversight seems driven more by an ideological axe to grind than any adherence to rules. Particularly in light of the recent IRS decision to scrap its nonprofit rulemaking after withering criticism, the Service should tread lightly in dispensing controversial tax classifications.

Those who shout loudest when trying to shut others up should perhaps reflect on what the First Amendment really does. It is not an “equalizer,” it levels no fields. Nor is it a means to “bring about the political and social changes desired by the people.” It is simply a restriction on government in one area civil life, enabling all to speak their mind without fear of coerced silence by would-be bullies.  

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