Former FEC chief’s harmful views on First Amendment freedom
What is it about the First Amendment and the right to engage in political speech that so upsets liberals and so-called “reformers” such as former FEC Commissioner Trevor Potter?
In his latest attack on the Federal Election Commission (FEC) in The Washington Post, Potter paints a misleading picture of the FEC and the federal restrictions that govern campaigns. Contrary to his erroneous claims, the three Republican commissioners that he criticizes have been trying to protect the First Amendment right of Americans to participate in the political process, while the other Democratic commissioners that he praises have been trying to issue over-restrictive regulations that violate the First Amendment and the holdings of the Supreme Court.
Potter claims that the Supreme Court’s decision in Citizens United – which restored the First Amendment right of everyone, including unions and corporations, to engage in independent political speech – was properly criticized for its “legally incoherence, judicial activism and equation of corporations with individuals.” Nothing could be further from the truth.
Citizens United simply held that the government cannot ban the speech of corporations and unions when it contains political advocacy. As Brad Smith, another former FEC chairman points out, “Corporations are not people. And nobody thinks they are… but corporations have been recognized as persons for purposes of the law for centuries…corporations have all the rights that we as people have when we assemble.” That is why the corporate speech of the New York Times Company was protected in New York Times v. Sullivan, a case that liberals have never criticized.
Under Potter’s mistaken view that the First Amendment only protects people, obviously the rest of the Bill of Rights would also not apply to corporations and unions since there is no way to legally differentiate between the amendments. Thus, without the protection of the Fourth Amendment, the government would have the right to search and seize all of the records of any corporation, association, or union for any reason or no reason without a warrant.
Under Potter’s view, the government could also nationalize the assets of any corporation, association, or union at any time, since the Fifth Amendment prohibition on the seizure of private property except for “public use” or without “just compensation” would not apply to their assets.
Justice Kennedy’s decision in Citizens United was an outstanding exposition of the First Amendment and its importance to preserving our republic. It outlined the danger arising from government regulations “chilling political speech, speech that is central to the meaning and purpose of the First Amendment.”
It is not judicial activism for the Supreme Court to overturn a statute infringing rights protected by the Bill of Rights. In fact, it is activism of the worst kind to allow Congress to engage in such violations and to fail to enforce the limits on congressional power specifically outlined in the Constitution.
Potter is also anxious about “secret money” in federal campaigns. But all of the contributions made directly to federal candidates are reported to the FEC, making it available to anyone who peruses the FEC website. Potter hyperventilates about independent political expenditures and claims that independent groups don’t have to disclose all their donors. But in fact, the FEC has a regulation that specifically requires any group making any communications that support or oppose a candidate disclose the persons who donated a $1,000 or more for the purpose of making such a communication.
What Potter really wants is to force advocacy organizations like the National Rifle Association to disclose all of their donors and members. Why?
Is it so they can be subjected to the kind of harassment that was experienced by Sheldon Adelson, who was listed on Barack Obama’s enemies’ list after he made financial contributions to Freedom’s Watch, an organization that supported Republican congressional candidates and the Bush administration’s positions in the War on Terror? Or so they can be subjected to the kind of vandalism, intimidation, bigotry and loss of employment that was experienced by some donors in California who supported Proposition 8 after their names were disclosed?
Supreme Court decisions
Fortunately, the Supreme Court long ago held that the members of a nonprofit association such as Freedom’s Watch are protected from compelled disclosure. In NAACP v. Alabama, the Court found that “effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association.”
There is a “vital relationship between freedom to associate and privacy in one’s associations.” The type of disclosure that Potter wants the FEC to implement would expose, as the Supreme Court found in NAACP, members of organizations such as Freedom’s Watch to “economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility.”
Finally, Potter claims the coordination rules of the FEC are inadequate. These are the rules that specify how much separation there has to be between an independent organization and a candidate to prevent the organization’s political speech being imputed to the candidate. Potter is just as wrong in his criticism of these rules.
The FEC’s regulations are complicated, but in essence, if an organization’s political speech is created, produced or distributed after discussions with a candidate or his employees, it will be considered coordinated. Potter apparently wants political speech that in any way supports a political candidate to be considered a coordinated communication because independent political speech is so dangerous.
Fortunately for everyone who believes in the First Amendment, Potter’s recommendations for changing the organization and structure of the FEC are not likely to be given serious consideration by Congress.