Yesterday I participated in a panel discussion on the Citizen’s United v. Federal Election Commission decision by the Supreme Court.  Here is a statement following my experience there. 

My assigned task was to give a Libertarian impression on the decision concerning the “Constitutionality of Corporate Campaign Contributions”, Citizens United v. Federal Election Commission (FEC).  I was the only person on the panel who was not an accomplished lawyer.  Therefore, I approached this from the point of view of a candidate subject to the incredibly complex FEC rules, and from the point of view of an average American citizen.

I also had to take a simplified approach as compared to the complex legal approach my fellow panelists were able to take.  I began with my personal, political rules-of-thumb:

   -       There is no perfect solution.

   -       There are no isolated or single issues.

   -       Complex laws get selectively enforced upon an unlucky few. 

   -       You must have both social AND economic freedom or you will find yourself with neither. 

   -       If you think it is expensive now, wait until government makes it free.

The Citizens United decision concerned freedom of speech, so here is the text of the First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

By applying my rules-of-thumb to this amendment, right away we see it is wonderful, but not perfect, or isolated.  For instance, freedom of speech is not meaningful if you don’t have 4^th Amendment rights to security in your person and property.

It is also interesting that the 1^st Amendment polls as the least popular amendment.  People want to be able to speak freely, but they don’t really like it when they hear someone saying something they disagree with. 

There are several components to this decision.  The first is freedom of speech, then campaign finance including corporations, foreign and domestic, and disclosure.  Implicit in the issue are the ideas of fairness, safety, accuracy, and trust.

Freedom of speech, and a movie about Hillary Clinton

Citizens United put together a politically charged, so-called “documentary” about Hillary Clinton in 2008.  “Hillary the Movie” was a movie about a nationally known person, running for national office during an election year.  From the beginning, we can easily agree this is an act of freedom of speech.  In the movie people such as Larry Kudlow, Dick Morris, and Ann Coulter, use words such as “liar”, “European Socialist”, “dangerous”, and “deceitful” to describe a candidate for the office of president.  No surprise so far, and no problem with the FEC yet.  When someone in the movie says that Hillary Clinton is, “not fit to hold office”, The FEC steps in.  In the opinion of the FEC, a faceless bureaucracy controlling what they decide is fit for our eyes and ears, some imaginary and arbitrary line gets crossed.  So, they take action.

At this point, the average person knows something it wrong.  Clearly the movie is an act of freedom of speech.  What could possibly be wrong with that phrase “not fit to hold office”, that wasn’t already wrong with the whole movie.  The conclusion Americans reach is that the law is not written for the average person, but instead for lawyers.

There is nothing in the Constitution about campaign finance.  We have gotten it involved with the First Amendment.  Was if free for the early Representatives to print campaign literature or to publish their writings?  Certainly they had some expense to their campaigns.  Yet, there is nothing in the Constitution about campaign finance.

From the Amicus brief by the Institute for Justice:

 “…the First Amendment has been an afterthought in campaign-finance cases, as the government and often this Court have placed concern for circumventing campaign-finance laws above the concern that those laws were circumventing the First Amendment.” – IJ 

Campaign finance

“The hardest thing in the world to understand is the income tax.” – Albert Einstein

Einstein might have been right about the income tax then, but he never contemplated FEC rules.  I have.  To define them as burdensome only begins to describe the complex limitations they put on a candidate and the candidates contributors. 

In 2008 Barak Obama gathered over $700 million in campaign donations, the vast majority of which was from individual contributors.  In the same campaign year, Bob Barr, Libertarian candidate for President, received about $1.3 million in donations.  The FEC found an accounting error in the Barr campaign.  According to one of his campaign staff, the error was less than $100.  Without alleging illegal or unethical intent, I think it is reasonable to ask, did the Obama campaign precisely account for every dollar of that $700 million?  This is a clear example of complex law being enforced selectively on an unlucky, unconnected few.

Running a third-party campaign, I am familiar with the impact a low cost structure can have.  In 1978, a Libertarian named L. Neil Smith ran for State Representative in Colorado.  He spent $44 dollars and got 15% percent of the vote.  (He is still proud he never put on a tie while campaigning.)  Last week, in a Rasmussen Poll, a generic, third-party candidate for Senator, polled at 3%.  That’s me, 3%, and I haven’t spent $1000 yet.  So far, the main part of my campaign has been me, a laptop, a website, and online social networking. 

Just as we are now dealing with technology the Framers never envisioned, there is a not distant future a technology that will a game changer in campaign costs.  We are getting wrapped around the axle in definitions and legalese that will be meaningless as business continues proactively at the speed of a thoroughbred racehorse, and government remains reactive at the speed of a plodding dinosaur.

Foreign money

We cannot control this any more than we can control the flow of money from any other source.  Legal “roadblocks” might redirect the flow, but not stop it.  Arbitrary US incorporation definitions and numbers, such as the 20% rule, will only cosmetically change some corporate structure, not the money inserted into the political process.  Controlling this directly is just not going to happen.

Foreign individual money is also limited.  If you were to donate at my website, which I hope you will generously, you could not get to the part where you type in your credit card without checking a box that among things will certify as true: 

I am a citizen or permanent resident in the United States.

I am not a foreign national who lacks permanent resident status.

If someone decides to lie on my website, do you think it they will be held responsible, or me?  Do you think another candidate will be held to an equal standard?

With a wife who is European, I have family in Europe, and friends here who are foreign nationals.  Most of them have asked if they may contribute to my campaign.  I declined saying it could cause me more problems than benefits.  It is silly that a candidate has to be so concerned with such minutia.

Foreign entities are defined by US law and within the FEC rules, but it is complex, controversial within the legal community, and nearly impossible for someone who is not schooled in law to understand.  Reading the code or listening to a legal professional describe what a foreign contribution is by definition, again gives the average American the impression that the law is not really written for them.  It leaves us feeling not only left out, but also frightened that the law could be easily turned on us. 

Setting up these barriers strikes me as a kind of legal Maginot Line.  Following WW I, the French nearly went broke setting up a military defense that would stop another invasion of their country.  What happened?  The next invading army flew over and drove around the Maginot Line.  Worse than that, they threw a feint against the line to hold the French defenders attention, and the attacking ground troops actually broke through. 

The FEC rules will not stop a determined foreign entity of any kind from attempting to influence our politics.  They will find their way around or through the rules.

Concern about the threat of foreign influence in campaigns strikes me as odd coming from a government that has sold so much of our debt to other governments.  Worse yet, is the threat to US security, sovereignty, and survival with so many of our so-called representatives who favor US coordination of banking and currency with other countries.  These are people sworn to uphold and defend the Constitution, but who are willing to subject us economically to a “jurisdiction foreign to our Constitution, and unacknowledged by our laws”.  Nothing is a greater threat than that. 

The government makes us fearful of undue influence from foreigners in our elections, while subjecting us to far greater real dangers.

Disclosure

From the Amicus Brief by the Institute for Justice:

“It is fundamental that the government cannot regulate speech based on either its content or the identity of the speaker.”

“Fear of political reprisal is both real and reasonable.”

“The government should carry the burden to demonstrate the need for disclosure instead of speakers bearing the burden to prove the need to remain anonymous.”

Is there a cost to disclosure?  Justice Thomas agreed emphatically.  I see any disclosure requirement as a violation of the 1st amendment.  Adding more limitations will just raise the cost of political free speech.

The Federalist Papers were signed by Plubius, short for a Roman Emperor named Plubius Valerius Publicola, the last name meaning “of the people”.  In fact, Alexander Hamilton, James Madison, and John Jay wrote them.  Do we reject the Federalist Papers today because they did not carry a disclaimer?  What is the difference in impact because they do not end with a statement such as, “My name is James Madison and I approved this message”?  They were expressions of freedom of speech, but even the Federalist Papers had spin.  The concept of federalism is one of decentralized government.  Yet Madison and especially Hamilton favored strengthened central government. 

Whether it is the Federalist Papers, “Hillary the Movie”, or anything in between, with or without disclosure of the source, the fundamental burden is on the voter to discern good information from bad.  The government insists on creating the illusion of perfect, pure, and sanitized information, safe for consumption by the voters.  Instead it lulls voters into not looking beyond the hype and marketing, and finding what the candidates actually stand for.

Fairness  

“If the proles ever realized how powerful they are, there would be no need for a revolution.” – George Orwell 

"A free people are never equal, and an equal people are never free." - unkown

As desirable as it may initially sound, Government cannot level the political playing field.  All actions the government takes in unconstitutional areas are political, not logical or fair.  The American people are going to have to understand that.  On the other hand, as long as they are free, they may publish statements such as “Hillary the Movie”, or whatever else they wish.  Individual action in politics still counts, especially if all 300 million of us would actually take action to restore our lost Constitution.

Fear and trust

“Government is a disaster masquerading as its own cure.” - L. Neil Smith

“Government is essentially the negation of liberty” – Ludwig Von Mises

Lew Rockwell, one of my heroes, talks about the package of fear being offered by the Left and the Right.  “The goal of both the Left and Right is that we make our political choices based on these fears. It doesn't matter so much which package of fear you choose; what matters is that you support a state that purports to keep your nightmare from becoming a reality.” 

Basically, Americans are being scared into giving up more and more of our liberty.  We are being told the government will protect us from evil entities, foreign and domestic, that would force bad people into the offices that are supposed to protect us.  Instead, all government does is expand and negate the very liberties they pretend to secure for us.

Worse yet, is the danger of the illusion of safe information the government promises us.  Americans are busy just trying to get by, so they accept a kind of easy, “drive-up window” approach to getting their political information.  People, confused by the issues and the law, but attempting to participate meaningfully, trust that the source of the information is being monitored and certified by the government, particularly when it comes to political issues.  I see so many people with a wide recognition of many issues, but very little depth to their knowledge.  Part of the reason is a failure on their part to investigate further.  But, why should they?  The FEC is on the job.

I think, as a people, we have forgotten what it looks and feels like to be free.  Lew Rockwell states, “…the more liberty we lose, the less people are able to imagine how liberty might work.  People can no longer imagine a world in which we could be secure without massive invasions of our privacy at every step…” We are busy just trying to survive, while our economy and lives are continuously set back by central government interference.  We understand the government has gotten complex and we don’t like it, but we have become used to government oppression. 

Do we get bad information? Of course we do!  How do I know?  I know because among other things, our government is deeply in debt, businesses have access to our national treasury, our troops are not home and whole, and our President and Congress are not Libertarian. 

What we really need to do is to tell people that all information is from biased sources.  All of the sources are from imperfect human beings who have a life experience, a point of view, and a vision of how things should be with and agenda for how to make it that way.  Once we all accept that, people will view political information with a more critical “eye”.  Maybe, they will listen to the actual words politicians say, and pay at least some attention to the actual results politicians deliver. 

My observations while on the panel

As I watched and listened to three very impressive lawyers discussing this decision I realized the high level of intellectual capital sitting next to me.  I thought of an analogy to the high level of technological advance in aviation, the profession I love.  At the peak is a new fighter/attack jet designated the F-35.  This is currently the pinnacle of aviation achievement.  I view the F-35 with the eye of a fighter pilot and wish I could have one for fun on weekends.  Yes, to me it is beautiful and fun looking, but I clearly see two other things.  First, it represents a huge amount of human intellectual and physical capital, and resource capital.  Secondly, it is among a much too long list of efficient, cutting edge machinery all designed to kill people.  Where could we be in aviation and other endeavors, had that kind of potential been allowed to advance the quality of human life?

On the legal and litigation side, where would we be, if the kinds of minds I witnessed in action, were not involved in trying to use complex legislation to stem the flow of campaign contributions, influence, and information good or bad.  What if they had also been directed towards a substantial advance to the quality of life?  The F-35 has damaged our peacetime technology, our lifestyles, and our economy.  The FEC and the government are doing the same thing to us.

What we see is the most visible cost.  Lew Rockwell also wrote,

“Frédéric Bastiat emphasized, the enormity of the costs of the state can only be discovered in considering its unseen costs: the inventions not brought to market, the businesses not opened, the people whose lives were cut short so that they could not enjoy their full potential, the wealth not used for productive purposes but rather taxed away, the capital accumulation through savings not undertaken because the currency was destroyed and the interest rate held near zero, among an infinitely expandable list of unknowns.”

Conclusion

"When buying and selling are controlled by legislation, the first things to be bought and sold are legislators." - P.J. O'Rourke

From my Issues page on my campaign website: 

“Government always follows a similar pattern of reducing your freedoms and extending its tyranny.  It steps in to “help”, always with good intention.  However, because of its inherent limitations, government’s action always fails at some level. What should the government do then?  Should it stop interfering and remove itself from the situation, or should it expand to fix the new problem? Government sees itself as the necessary solution and rushes to fix the new problem.  More unintended consequences result that in turn require further interference.  Eventually, the government decides it “must” fully take over.  This is the pattern governments have followed again and again throughout history.  In the end, the only escape from such a situation is revolution.  History has no shortage of examples, and the United States is no exception to the rule.” – Chuck Donovan

From the Citizens United amicus brief by the Institute for Justice:

“Each new campaign-finance restriction has increased the value of the available alternatives for speech and political participation, resulting in efforts to close down those alternatives with additional restrictions.”

“In short, every incremental advance in campaign finance laws has laid the foundation for the next advance, with the result that today’s “alternative avenue of communication” inevitably becomes tomorrow’s loophole.”

“…political speech today is subjected to some of the most burdensome regulations imposed on any speech.”

As more and more legislation addresses the “unintended consequences”, we creep in every issue towards full government takeover.  In the end, a blockade against1^st amendment rights will fail and we will find ourselves right back where we began, with the inalienable freedom of speech, which I think might just be the real lesson of Citizens United.  More speech is never a bad thing no matter who funds it or how they disclose it.  Freedom of speech, you get David Dukes.  No freedom of speech, you get Adolph Hitler.  It is a lousy choice either way, but a world with an enforced Bill of Rights and David Dukes is far different from one with a Nationalist Socialist government. 

We have withstood all kinds of special interests voicing their opinions on political issues and candidates.  Some of them are named things like The Washington Post, The New York Times, The Wall Street Journal, CNN, Fox News, and NPR.  If we can handle what they do to our political outcomes, we can certainly withstand an opinion offered by Exxon Mobil, the AFL/CIO, the big money of George Soros, or Citizens United. 

If you want to get upset about free speech, don't get upset about something that increases free speech, or about corporate influence in campaigns.  Don’t look at campaign contributions.  Look at the earmarks, lucrative contracts, protective legislation, corporate welfare, bailouts, and all the goodies that draw the lobbyists and big money contributions.  Turn your anger on a Washington D.C. that continuously and vastly grows, and helps or hinders corporations based on political lobbying rather than free enterprise and market based forces.  Worse yet, our government helps those businesses to help themselves to what is left of our national treasury.  Let’s stop that.

What is my Libertarian reaction to Citizens United?  I like it – almost.  It makes a move in the direction of free speech, but not as far as I would have gone.  In the State of the Union Address, the President said that this decision, “…opens the floodgates…” to campaign contributions.  I agree with Justice Alito who appeared to me to mouth the words, “That’s not true.”  I think it does not open the floodgates, but I would open them.  A good decision in my opinion would be to abolish the FEC.  Would we get more bad information?  Certainly we would, but we already do.  Would there be a corrupting influence from money?  Certainly there would, but there already is.  Would money come rushing through those floodgates?  Maybe it would, maybe not, but we can counter it by arming people with a sense of suspicion about all of the information presented to them.  Then we will have an imperfect, but healthy, prosperous, and peaceful representative republic.

…and a Libertarian Congress.

 

The mission is freedom.

The vision is now.