Yesterday’s post drew some lively comments and interesting issues, so I’m going to prolong that discussion with this post.
First, I appreciate Dan Foley’s clarification that it was an amendment to the law passed last year (SB555 SD1 HD1) that prohibited fundraising events by state or county officials while the legislature is in session. I made the mistake of consulting the version of the statute posted on the Campaign Spending Commission’s website, which does not include the 2022 amendments, which only took effect at the beginning of this year. So this year’s bill merely adds a prohibition on soliciting or accepting contributions during the same period, extending the prohibition beyond fundraising events to all fundraising activities.
But while I stand corrected, it doesn’t change my view of this law and the proposed amendment. I still see it as unwise, unnecessary, and open to challenge on constitutional grounds, based on any absence of any reasonable nexus between fundraising by county officials or OHA trustees, and the public’s perception of the honesty of state legislators.
In comments on yesterday’s post, there were several references to the Citizens United decision. While I agree that the U.S. Supreme Court’s 2010 decision in the case of Citizens United v. Federal Election Commission, inflicted considerable damage on our democracy, the main damage wasn’t caused by its view that raising and spending money in political campaigns are exercises of the First Amendment right to free speech, in this case free political speech, which has long been recognized as constitutionally protected.
That had been relationship had been firmly established in the case of Buckley v Valeo, a decision issued back in 1976.
Here’s a summary of the Buckley decision from the Constitutional Law Reporter.
The classic Supreme Court decision on this issue is the 1976 case Buckley v. Valeo, which controlled the law on this topic for decades.
The law at issue in the case is the 1974 Amendments to the Federal Election Campaign Act, which had been enacted after the Watergate investigations revealed serious campaign finance misdeeds in the 1972 presidential elections. The 1974 Amendments limited contributions, limited personal expenditures, created disclosure requirements, and created public funding for presidential elections.
The Court began the opinion by determining that unlike other symbolic speech, which would normally be analyzed through the O’Brien test, the giving or spending of money can be either speech alone, conduct, or both. This is because “virtually every means of communicating ideas in today’s mass society requires the expenditure of money.” Therefore, the Amendments would be analyzed under strict scrutiny as restrictions on political speech.
Under this analysis, the Court upheld the restrictions on contributions. Unlimited monetary contributions can cause corruption or the appearance of it, such as a “quid pro qou” deal where a candidate does a favor in exchange for a contribution. The Court felt that the government preventing this was essential to a functioning democracy. Limiting a contribution still allows someone to make a statement or message with their allowed contribution, so speech was not overly restricted.
Similarly, the Court upheld financial disclosure requirements, using the same anti-corruption rationale. Limits on expenditures, however, were struck down as unconstitutional. The Court determined that limiting independent expenditures did not have the same anti-corruption impact – there being less danger of a quid pro quo deal if the individual isn’t directly contributing. Additionally, the Court rejected the argument that these limits were necessary to make candidates equal, stating the idea of restricting some speech to enhance the speech of others was “wholly foreign to the First Amendment.”
Following a similar line of reasoning, the Court struck down total limits a candidate could spend on themselves, stating that it was the role of the individual – not the government – to determine how much one could spend to promote their own views.The last portion of the decision upheld the public financing of elections because it did not restrict speech. By allowing for public financing of candidates who met the requirements, speech could be expanded to a broader pool of candidates and electors.
What the decision in Citizens United v FEC added was the extension of the political freedom of speech to fictional entities such as corporations and unions, and providing that the free speech rationale allows unlimited spending by wealthy individuals, corporations, and so-called “Super Pacs” as long as their election-related activities are “independent” of candidates and their campaigns.
In my view, those are the damaging parts of the Citizens United decision, not the idea that we have a right to be able to contribute to the candidates of our choice, and that spending by candidates, and by extension their ability to raise campaign funds, implicates that same right to free speech.
Here’s the Brennan Center for Justice on Citizens United:
In the court’s opinion, Justice Anthony Kennedy wrote that limiting “independent political spending” from corporations and other groups violates the First Amendment right to free speech. The justices who voted with the majority assumed that independent spending cannot be corrupt and that the spending would be transparent, but both assumptions have proven to be incorrect.
With its decision, the Supreme Court overturned election spending restrictions that date back more than 100 years. Previously, the court had upheld certain spending restrictions, arguing that the government had a role in preventing corruption. But in Citizens United, a bare majority of the justices held that “independent political spending” did not present a substantive threat of corruption, provided it was not coordinated with a candidate’s campaign.
As a result, corporations can now spend unlimited funds on campaign advertising if they are not formally “coordinating” with a candidate or political party.
Worrying about whether a neighbor island county official holds a fundraiser or solicits campaign funds while the legislature is in session hundreds of miles away is nothing more than political theater that impinges unnecessarily on their rights of political speech. At least that’s my view of the situation.