In the News
Wall Street Journal: Congress Abetted the IRS Targeting of Conservatives
By Brad Smith and David Keating
On Monday the Center for Competitive Politics filed a complaint with the Senate Select Committee on Ethics against nine U.S. senators: for interfering with IRS tax proceedings; for misusing official resources for campaign purposes; and for improper conduct that reflects poorly upon the Senate. Attempting to use the IRS to advance a partisan, electoral agenda is a fundamental assault on good government. We believe these elected officials have staged such an assault.
The complaint documents how the senators improperly interfered with IRS adjudications to further their party’s electoral prospects. They pressured the IRS to undertake income-tax investigations of specific organizations, to find that specific organizations were in violation of the law, to reach predetermined results pertaining to pending applications by individual organizations for nonprofit status, and to adopt specific regulatory interpretations and policies to further their campaign goals.
A year ago in May it became public knowledge that the IRS had improperly targeted conservative organizations. Republicans have since attempted to find a “smoking gun” directly linking the scandal to the White House. That likely does not exist, because that’s not the way these things are done. Meanwhile, their quest has helped enable the press to ignore obvious abuses of power emanating from the Senate.
Free Beacon: Koch-Addled Democrats Slapped With Ethics Complaints
By Andrew Stiles
Meanwhile, a number of Reid’s Democratic colleagues are facing a separate ethics complaint from the Center for Competitive Politics for their alleged roles in the IRS targeting of conservative nonprofit groups. The complaint accuses several Senators—Carl Levin (D., Mich.), Dick Durbin (D., Ill.), Chuck Schumer (D., N.Y.), Jeanne Shaheen (D., N.H.), Tom Udall (D., N.M.), Sheldon Whitehouse (D., R.I.), Al Franken (D., Minn.), Michael Bennet (D., Colo.), and Jeff Merkley (D., Ore.)—of “improperly interfering with the administrative proceedings of the IRS.”
Previously, Reid and his Democratic colleagues have come under fire for posting anti-Koch attacks on their taxpayer-funded websites, another possible violation of Senate rules.
Wyoming Liberty Group: WyLiberty Attorneys File Free Speech Brief in Texas Case
AUSTIN, TX – Wyoming Liberty Group attorneys filed a friend-of-the-court brief today on behalf of WyLiberty and the Center for Competitive Politics in Texas v. DeLay. The brief is the second filed on behalf of both organizations, discussing the free speech implications of a criminal case with origins over a decade old.
CCP
Senate Ethics Complaint Filed by Center for Competitive Politics
The Center for Competitive Politics (the “Center”) respectfully requests that the United States Senate Select Committee on Ethics undertake an investigation of Senators Carl Levin, Richard Durbin, Charles Schumer, Jeanne Shaheen, Tom Udall, Sheldon Whitehouse, Al Franken, Michael Bennet, and Jeff Merkley to determine whether any of them violated Senate rules and standards of conduct by improperly interfering with the administrative proceedings of the Internal Revenue Service (“IRS”) for the purpose of suppressing the First Amendment speech rights of certain nonprofit organizations. As explained below, these Senators appear to have violated Senate rules and norms, and abused the power of their office in an effort to advance their political party’s campaign and electoral objectives between 2010 and 2012.
The seriousness of such behavior cannot be understated. Attempting to use the IRS for partisan campaign purposes undermines its core revenue function, gravely threatens public confidence in the impartial administration of government, and reflects unfavorably upon the Senate. Indeed, one of the Articles of Impeachment during the Watergate scandal was that the President had “endeavoured to obtain from the Internal Revenue Service, in violation of the constitutional rights of citizens, confidential information contained in income tax returns for purpose[s] not authorized by law, and to cause, in violation of the constitutional rights of citizens, income tax audits or other income tax investigations to be initiated or conducted in a discriminatory manner.”[1]
To varying degrees, each of the Senators named in this complaint has engaged in exactly this type of conduct, in violation of Senate rules. This Committee must act to ensure that this course of conduct is not repeated, lest it become an accepted political campaign practice.
Changing Perspectives: Senators’ Newfound Support for Amending the First Amendment (Issue Review)
By Luke Wachob
Sen. Patty Murray (1995): “Our Constitution guarantees all of us this freedom, including the right to free speech. I believe we should be very cautious about altering this document, because to do so alters the fundamental ideals on which our country was built.”[29]
Sen. Barbara Boxer (2006): “This Constitution is more than just an outlet for our justifiable frustrations. It is concise. It has worked. It is the enduring ideal of our Nation, and we should not unnecessarily amend it.”[30]
Sen. Richard Durbin (2006): “It is a matter which we will likely debate the rest of this week. The reason we are going to spend this much time on it is because this one-page document represents a historic change in America. If this amendment were to be ratified, it would mark the first time in our nation’s history that we would amend the Bill of Rights of the United States of America.”[31]
Sen. Richard Durbin (2006): “It takes a great deal of audacity for anyone to step up and suggest to change the Constitution… I think we should show a little humility around here when it comes to changing the Constitution. So many of my colleagues are anxious to take a roller to a Rembrandt.”[32]
Letter to Colorado Secretary of State: Citizens United’s Petition for Declaratory Order
On June 2, 2014, the Center for Competitive Politics (“CCP”) filed comments before Colorado Secretary of State Scott Gessler supporting Citizens United’s Petition for Declaratory Order. Citizens United—yes, that organization—asked the Secretary to declare whether its activity qualified under Colorado’s press exemption to the definitions of “expenditure” and “electioneering communications” of Colorado Constitution Article XXVIII.
The press exemption is designed to keep campaign finance laws from stifling news and commentary by the press. But the state’s law is unclear on terms like “other periodical” and “broadcast facility”—especially in the age of new technology like video on demand, streaming, and DVD sales.
In its comments, CCP examined the grave vagueness problems with Colorado’s press exemption. CCP noted that the definition of “press” is not a static concept, but evolves with technology. Without guidance, Colorado faced costly litigation and chilling the speech of Citizens United and like groups. Therefore CCP recommended that Secretary Gessler use the power granted by the voters and legislature of Colorado to recognize Citizens United as under the press exemption. By issuing the Declaratory Order, Secretary Gessler could help protect the freedom of speech in Colorado.
Recapping “Amending the First Amendment: Silencing Free Speech?”
By Luke Wachob
On Monday, the Heritage Foundation hosted a panel of campaign finance experts to discuss recent developments such as the McCutcheon v. FEC Supreme Court ruling, the IRS’s stalled proposed rulemaking restricting the activities of 501(c)(4) social welfare organizations, and Sen. Udall’s constitutional amendment proposal under consideration in the U.S. Senate, which would amend the First Amendment. The panel featured Bobby Burchfield, partner at McDermott, Will and Emery; Don McGahn, former FEC Chairman; and Hans von Spakovsky, former FEC Commissioner and Senior Legal fellow and Manager of the Heritage Foundation’s Election Law Reform Initiative.
The three speakers described recent events in the realm of campaign finance as part of an ongoing attack on freedom of speech from politicians hostile to the First Amendment and groups who wish to further regulate political speech. Burchfield called the McCutcheon decision “plainly correct” and described the federal aggregate contribution limit at issue in the case as an attempt to “level the playing field” (which the First Amendment does not allow) disguised as an anti-corruption measure.
McGahn marveled at the vagueness of the Udall amendment and its promise of “political equality for all.” The proposed amendment seems to allow the government to silence speech selectively. McGahn also criticized the amendment’s press exemption as insufficient and exclusionary to bloggers and other groups that fall outside of mainstream media corporations.
Amending the First Amendment
Heritage: Amending the First Amendment: How the Campaign Finance Amendment Will Silence Free Speech
By Hans A. von Spakovsky and Elizabeth Slattery
Frustrated with the Supreme Court’s consistent defense of political speech protected by the First Amendment, the Left is driving a movement to amend the Constitution to allow Congress to limit fundraising and spending on political speech. Supporters of this amendment claim that restricting the amount of money that may be spent on political speech and activity is not the same as limiting speech, but as the Supreme Court has recognized, bans on spending are indeed bans on speech. Limiting spending on political communication necessarily affects the quantity and quality of that speech. Rather than “level the playing field,” this constitutional amendment would protect incumbents and violate a fundamental right of Americans.
An effort is underway in the Senate to amend the Constitution to restrict free speech by allowing Congress to limit fundraising and spending on political speech. A constitutional amendment proposed by Senator Tom Udall (D–NM) would grant Congress the power to regulate the raising and spending of money in elections. Supporters of this amendment claim that restricting the amount of money that may be spent on political speech and activity is not the same as limiting speech, even though “virtually every means of communicating ideas in today’s mass society requires the expenditure of money.”[1]
Wisely, the Framers of the Constitution ensured that amending the Constitution would not be an easy task. Thus, advocates of this constitutional amendment that would severely cut back the protections of a fundamental part of the Bill of Rights will face an uphill battle.
Independent Groups
More Soft Money Hard Law: The Troubles of Political Parties and Misreadings of Citizens United
By Bob Bauer
We’ve seen in recent years that corporate money is not the fuel that independent activity has run on. Lawyers pondering what was necessary for this money to be accepted and spent independently would not care all that much about Citizens Unitedand had little reason to feel more secure about their clients’ position after Citizens United than before. Buckley was fully sufficient to provide the necessary constitutional cover.
This is not a defense of the reasoning of Citizens United, but more a question of where to situate it in tracing the origins of the problem that Heather has identified with the growth in “shadow parties.” Over the course of the development of campaign finance, such organizations may have endured a long gestation, but their appearance was inevitable. Campaign finance lawmaking and jurisprudence has been singularly inhospitable to party institutions, most notably in McConnell. Still earlier, in theColorado Republican cases, the Court first recognized parties’ right to independent expenditures if they keep their distance from their own candidates, then upheld limits on spending they coordinated with those candidates. And then there is the contribution of Congress, weightier even than that of the courts: McCain-Feingold, which attacked soft money sources of parties and set them inexorably on the road to the phenomenon that Heather describes of party elites funding party-type interests outside the formal party structure.
SCOTUS/Judiciary
National Law Journal: ‘Money Is Speech’ Was Never Spoken
By David Schultz
If — or when — the Roberts Court in the next couple of years strikes down the last remaining Watergate-era campaign finance laws, the question will shift to: Who is to blame? It will be easy for liberals to say it was the conservatives, especially those on the U.S. Supreme Court, the Republicans or even the Koch brothers. But the reality is that the seeds of campaign finance reform’s demise lie in the very case that started it all – Buckley v. Valeo, which tested the constitutionality of political contribution and expenditure limits.
The core of the 1976 Buckley analysis was simple — the Federal Election Campaign Act’s “contribution and expenditure limitations both implicate fundamental First Amendment interests.” At no point in Buckley did the court ever say “money is speech.” The language was more ambiguous, suggesting that money raised First Amendment concerns; that the use of money was neither pure conduct nor pure speech; and that money was linked to free expression, especially when it came to political expenditures. The court eschewed promoting equality as a compelling interest justifying restrictions on money, settling on preventing corruption and its appearance as reasons for limiting contributions, but not so for expenditures.
The Buckley rules were never clear. How is money related to speech? What is corruption or its appearance? Is it really possible to draw lines between political contributions and expenditures? And who is entitled to speak with money? All these are vague legal doctrines, and opponents of campaign finance reform have exploited the ambiguity, arguing that there was no principled way to draw lines that separate speech from conduct.
Candidates, Politicians, Campaigns, and Parties
National Journal: How David Vitter Shattered Another Campaign Finance Rule
By Shane Goldmacher
David Vitter had a $1 million problem. Back in January, by the time the Louisiana senator announced his long-rumored run for governor, Vitter had already lined up supporters and developed a campaign battle plan. Still, one major hurdle remained: State law barred him from using the seven-figure sum he had amassed in Senate campaign funds.
But through a super PAC and some creative lawyering, Vitter and his allies appear to have found a way to redirect all of that money to support his gubernatorial campaign. And in doing so, they’ve pioneered a new method for politicians nationwide to get around old prohibitions on spending federal money on state races, and vice versa.
