John Yarmuth Is Wrong about The First Amendment

My former hometown NPR affiliate, WKMS in Murray, Kentucky aired my radio commentary yesterday. Here’s the text:

Congressman John Yarmuth believes that Citizens United was a bad Supreme Court decision. The two year old free speech ruling found that people don’t have to give up their right to associate freely when they want to speak freely and vice versa. And it allowed unions and corporations to facilitate political speech more easily.

Congressman Yarmuth, by way of overturning Citizens United, has written a Constitutional Amendment that, as he puts it, establishes “financial expenditures … do not qualify as protected speech under the First Amendment.” He further argues that the financial expenditures don’t even have to clearly express support or opposition for a candidate. That speech would no longer be protected by the Constitution.

To me, this seems odd. I used to work for John Yarmuth on occasion, writing articles in his former newspaper, LEO, about public policy and other matters. The reason Yarmuth’s claim seems odd is that his newspaper regularly endorsed candidates for political office and regularly published stories expressing support or skepticism toward political actors. I wonder if Yarmuth believes that his Constitutional amendment would hamper newspapers that endorse candidates as LEO did and still does.

Most newspapers are owned by corporations and it would be foolish to argue that a newspaper endorsement is not both a corporate expenditure and an “in kind” contribution, both of which are targeted by Yarmuth’s amendment. After all, it costs money to print a newspaper and newspaper endorsements are often extremely valuable to politicians during a campaign.

Now I expect that John Yarmuth doesn’t mean to single out newspapers or other media outlets for direct government regulation of political speech and he may respond that the government would use discretion and restraint when choosing which media outlets receive this higher level of scrutiny.

The problem, of course, is that Congress has already tried to regulate political speech in very scary ways. And they’ve done it by precisely claiming that spending money to advance an idea … isn’t really speech.

In 2010, the Supreme Court decided a case where advertisements for a political documentary were banned by the Federal Election Commission. And the Commission banned the film from being shown on Pay-per-View for weeks prior to elections. During the oral argument, justices asked the government’s lawyer if he thought the Federal Election Commission could even ban the sale of books, or publications for your kindle, that contained so-called “express political advocacy.” The government’s lawyer effectively said yes, we can.

That case was Citizens United. And the high court rightly threw out that kind of dangerous government censorship of political speech.

So a few questions should be put to Congressman Yarmuth: Do you really believe under your proposal that newspapers like LEO wouldn’t be subject to direct government regulation of their content? Is government censorship really the answer here?

An Important Thought

“If you’re going to fight Mike Tyson, you’re not going to box against him, because, even though he is crazy, he’s going to kill you. But if you can challenge him to a game of chess, you might have a chance.” – a Venezuelan opposition leader

Big Money, Small Money and Corruption

A few thoughts following the election in Wisconsin and the influence of “big money.” First:

“In 1968, the last presidential election before passage of the Federal Election Campaign Act, Eugene McCarthy got his influential anti-war campaign off the ground in days, thanks to a handful of wealthy individuals who contributed the equivalent of several million each in today’s dollars.” – Bradley A. Smith

Second: John Samples and I discuss the election in Wisconsin and “big money” for a Cato podcast.

Third: A former employer of mine, Congressman John Yarmuth, is pushing a constitutional amendment that would, in his words, establish that money is not speech. Here’s a radio commentary from me that may or may not air in the near future:

Congressman John Yarmuth believes that Citizens United was a bad Supreme Court decision. The two year old free speech ruling found that people don’t have to give up their right to associate freely when they want to speak freely and vice versa. And it allowed unions and corporations to facilitate political speech more easily.

Congressman Yarmuth, by way of overturning Citizens United, has written a Constitutional Amendment that, as he puts it, establishes “financial expenditures … do not qualify as protected speech under the First Amendment.” He further argues that the financial expenditures don’t even have to clearly express support or opposition for a candidate. That speech would no longer be protected by the Constitution.

To me, this seems odd. I used to work for John Yarmuth on occasion, writing articles in his former newspaper, LEO, about public policy and other matters. The reason Yarmuth’s claim seems odd is that his newspaper regularly endorsed candidates for political office and regularly published stories expressing support or skepticism toward political actors. I wonder if Yarmuth believes that his Constitutional amendment would hamper newspapers that endorse candidates as LEO did and still does.

Most newspapers are owned by corporations and it would be foolish to argue that a newspaper endorsement is not both a corporate expenditure and an “in kind” contribution, both of which are targeted by Yarmuth’s amendment. After all, it costs money to print a newspaper and newspaper endorsements are often extremely valuable to politicians during a campaign.

Now I expect that John Yarmuth doesn’t mean to single out newspapers or other media outlets for direct government regulation of political speech and he may respond that the government would use discretion and restraint when choosing which media outlets receive this higher of scrutiny.

The problem, of course, is that Congress has already tried to regulate political speech in very scary ways. And they’ve done it by precisely claiming that spending money to advance an idea … isn’t really speech.

In 2010, the Supreme Court decided a case where advertisements for a political documentary were banned by the Federal Election Commission. And the Commission banned the film from being shown on Pay-per-View for weeks prior to elections. During the oral argument, justices asked the government’s lawyer if he thought the Federal Election Commission could even ban the sale of books, or publications for your kindle, that contained so-called “express political advocacy.” The government’s lawyer effectively said yes, we can.

That case was Citizens United. And the high court rightly threw out that kind of dangerous government censorship of political speech.

So a few questions should be put to Congressman Yarmuth: Do you really believe under your proposal that newspapers like LEO wouldn’t be subject to direct government regulation of their content? Is government censorship really the answer here?

More to come.

An Apology

To the older besuited gentleman in the Infiniti or Lexus who slammed on his brakes, honked and then angrily gestured at me as I crossed the street in front of his car:

I’m sorry I flipped you the bird. It’s a rude gesture. Next time I’ll just point to the crosswalk I’m using.

COB

Ben Cohen Spends Bucks to Declare ‘Money Isn’t Speech’

Ben Jerry Cohen of Ben and Jerry’s is quite sure that money isn’t speech, but surely that doesn’t include the money he wants to use to buy rubber stamps that say “Money isn’t speech.” If the money he’d use to facilitate his blatant, naked act of communication isn’t speech, he should have no problem with the government outlawing the sale of rubber stamps for the purpose of communicating controversial ideas.

One has to wonder about the potential use restrictions that might come with the purchase of posterboard, sharpies, cameras and laptops.