Archive for September 21st, 2008|Daily archive page

Freedom of speech and campaign finance laws

In response to my Constitution Day blog post, a friend of mine sent me the text of a speech, “The Liberal Assault on Freedom of Speech,” given by a professor of politics at the University of Dallas, Thomas West. He comments on the impact of recent campaign finance legislation on the freedom of political speech in the United States, which is, after all, the most important sort of speech since it allows you to defend or regain the other sorts of speech.

Professor West is critical of laws like McCain-Feingold, which limits the ability of citizens groups to criticize–or support–political candidates and issues within certain time periods, viz. right before an election when such speech could have the most impact. He quotes several incumbent legislators who claim the laws are designed to limit negative ads and clean up politics. Of course, as people already in office and enjoying the numerous benefits of incumbency, I can see how their own interests might bias them in these matters. West also critiques regulation of the airwaves, such as the fairness doctrine which stifled discussion of politics on the radio and involved the government in what could be discussed until it was rescinded in 1987.

The speech reminded me of a 1997 article, “A Constitutional Campaign Finance Plan,” by Michael W. McConnell, who was at the time a Constitutional lawyer and is now a federal appellate judge sitting on the 10th Circuit Court of Appeals in Denver. He criticizes the current regime, writing that “McCain-Feingold … make[s] it a crime to run an advertisement stating your views on [a] candidate within 60 days of the election. Under no coherent reading of the Constitution could it be permissible to prohibit citizens and voluntary associations from attempting to persuade their fellow citizens how to vote. That is the very core of the First Amendment.”

He argues that spending money to persuade public opinion is very good but that spending money to buy access to politicians is bad; campaign finance laws should try to eliminate or limit the later without too seriously impinging on the former. He makes a number of very interesting suggestions towards these ends, such as eliminating PACs and raising individual contribution limits. 

Individuals have many different opinions and interests, and unless their contributions are large enough to warrant invitation to a White House coffee or its equivalent, the candidate does not necessarily know what those interests are. The interests of a PAC lobbyist, by contrast, are all too clear. It also bears mention that PACs give almost 13 times as much money to incumbents as to challengers–a sure sign that the purpose of the contribution is to buy influence rather than to persuade voters.

He also proposes banning campaign contributions for a certain period, such as six months, following election day.

The postelection fundraiser, where lobbyists scurry to placate the winner, may be the most undisguised form of influence peddling in our entire system. It is particularly disgusting to see lobbyists who supported the loser suddenly switch sides. This abuse can be banned without injury to freedom of speech. Postelection contributions cannot possibly serve the function of persuading our fellow citizens how to vote. It is simply a way for the holder of public office to use his position for personal political advantage–and for lobbyists to curry favor without any danger that the other side might win.

An extension of this idea would be to require all political campaign contributions to be used by the recipient within a specified period (no longer than six months). This would prevent incumbents from amassing “war chests” to scare off potential challengers. It is hard to believe that contributions made years before the election, and before the contributor even knows who the opposing candidate might be, is a good-faith attempt to persuade. It is almost certainly an attempt to buy influence.

I think that most people are concerned about the influence of money on politics and we don’t want elections to be bought and sold.  However, we shouldn’t pass finance laws that amount to incumbent protection acts in the pursuit of reform.  There are much better ways to eliminate the bad effects of money in politics without removing our rights to support the causes and candidates that share and represent our views.

Unfortunately, since he’d be willing to strike down McCain-Feingold, McConnell is unlikely to be elevated to the Supreme Court if McCain wins, and Obama would also be unlikely to promote him, though Judge McConnell is a stud on the first amendment and has a libertarian bent that I rather like; he’s one of my two favorite federal appellate court judges.  You can read several more of his essays here; he opines on Bush v. Gore and Roe v. Wade, both of which he criticizes.

Evolution of the vice presidency and Cheney’s claims

This man claims he's not a member of the executive branch of government

This man claims he is not a member of the executive branch of government.

Vice President of the United States Dick Cheney has claimed that he is not, in fact, part of the executive branch of government. The claim was part of his bid to be able to destroy large amounts of records produced by his office and to avoid handing those over to the National Archives under the Presidential Records Act. Apparently, Cheney’s chief of staff David Addington told Congress that the vice president belongs to neither the executive nor legislative branch of government, but rather is attached by the Constitution to Congress, by virtue of being President of the Senate.

In modern times, Vice Presidents have only very rarely presided over the Senate, as the position carries almost no power; virtually all the presiding officer of the Senate does is recognize people to speak. Veeps pretty much only appear when a vote that is important to the president is expected to be very close so that they can be ready to cast a tie-breaking vote, the only power of the office specifically enumerated in the U.S. Constitution.

Modern vice presidents have little to do with the legislative branch, beyond lobbying members behind the scenes, but they are immersed in the operations of the executive branch. This represents a considerable evolution of the office. America’s first Vice President, John Adams, presided over the Senate most of the time it was in session; he angered Senators by becoming involved in actual debate and trying to steer the affairs of the chamber. George Washington’s administration did not allow Adams to attend cabinet meetings, on the theory that he was a member of the legislative branch and that his presence would violate the separation of powers. Most would be surprised to learn that the first vice president to attend cabinet meetings was Thomas Marshall, who served under Woodrow Wilson (1913-1921).

Modern vice presidents do attend, and in the absence of the president preside over, cabinet meetings and meetings of the National Security Council; they perform numerous ceremonial duties, like attending funerals, presenting awards, and giving speeches; and they largely serve as point man for the president, so their actual responsibilities and influence can vary greatly with their relationship to the top guy. Cheney has been a particularly active number two, as was Al Gore before him (they’re probably the two most active and consequential vice presidents in history, excluding those that were elevated to the presidency). By statute, the vice president also serves ex officio as one of 17 members of the Smithsonian Institution’s board of regents, one of very few legally required duties.

Back when the office was rather unimportant, vice presidents mostly seem to have spent their time commenting on how pointless the office was. John Adams, for instance, declared it to be “the most insignificant office that ever the invention of man contrived or his imagination conceived.” John Nance Garner, the first of Franklin Roosevelt’s three vice presidents, said the office was “not worth a bucket of warm piss” (often bowdlerized to “a bucket of warm spit”). The aforementioned Thomas Marshall claimed that most of the “nameless, unremembered” jobs assigned to him had been concocted essentially to keep vice presidents from doing any harm to their administrations.

Number One Observatory Circle, the official residence of the Vice President of the United States since 1974

Number One Observatory Circle, the official residence of the Vice President of the United States since 1974

There is an interesting anecdote that I can’t help sharing about Calvin Coolidge’s time in the office, back when the office did not have an official residence. Coolidge was living at the Willard Hotel in Washington, D.C. when it was evacuated in the middle of the night due to a small fire. He got tired of waiting outside and attempted to go back in; a fireman tried to stop him, but then decided to let Coolidge proceed when he identified himself as the Vice President. However, before he could actually enter the hotel, the fireman stopped him again and asked, “What are you the Vice President of?” Upon learning that he was the Vice President of the United States, he sent Coolidge outside again to wait with the rest of the huddled masses. “I thought you were the vice president of the hotel,” the fireman explained.

Since 1974, the Vice President has been entitled to live in a large Victorian house on the grounds of the U.S. Naval Observatory in Washington, D.C. Vice President Gerald Ford became President before he could use the home, and Nelson Rockefeller, primarily used the home for entertaining since he already had a residence in Washington. Walter Mondale was the first Vice President to actually move into the home and every Vice President since has lived in the house.

Anyway, I think it makes the most sense to view the vice president as both a member of the executive branch and a member of the legislative branch, but all of his papers and documents produced pursuant to his role and duties within the executive branch, which constitutes the vast bulk of Cheney’s duties, would definitely fall under the Presidential Records Act; it might be permissible to withhold documents produced in his capacity as President of the Senate. Of course, given Cheney’s extreme predilection for secrecy, this would probably lead to much more litigation. Congress could perhaps settle the matter more quickly by legislating on the matter, specifically extending the act to cover all or most of the Vice Presidents papers.