- "Bipartisan Campaign Finance Reform" is completely unconstitutional and offensive to the most fundamental ideas of America. It says you don't have the right to criticize the government. Those who promoted this "reform" knew it was unconstitutional, and wagered that the courts would not be able to eliminate all of its unconstitutional features. This means they violated their oath of office. They said
- "I don't have to keep my oath to support the Constitution. I can make laws which violate the Constitution and let others who have taken an oath to support the Constitution see if they can clean up my messes. I think I can stay ahead of them."
- "Clean Government" versus the First Amendment
- The bipartisan attack on free expression in America, cloaked in the language of "clean government," is aimed directly at the core of the First Amendment: political speech. In a typically pugnacious and reflexively dismissive-of-any-criticism appearance recently on the Don Imus Show, Sen. John McCain (R-AZ), chief architect and cheerleader for so-called campaign finance reform,
informed the audience that he "would rather have a clean government than one where quote First Amendment rights are being respected, that has become corrupt. If I had my choice, I'd rather have the clean government."
And to think that the front-runner for the GOP presidential nomination is a man who can speak the words, "quote First Amendment rights." Breathtaking. One wonders just what is "clean" about a government that constrains freedom of speech. This is an important point, because anyone who has followed the campaign finance debate knows
that the true purpose behind it is to shut down criticism of Congress.
President Bush took an oath to uphold the Constitution of the United States of America. When he signed what he knew to be a blatantly unconstitutional law (he as much as said so at the signing ceremony), he broke that oath. At least John McCain, who also took that oath, doesn't pretend to give a damn about it.
ONE OF THE WORST THINGS about the Bipartisan Campaign Reform Act of 2002 ("McCain-Feingold") was a restriction on the rights of groups, whether officially organized or loosely and temporarily drawn together.
Under BCRA, these groups could no longer simply mention candidates by name in radio and TV commercials in the 30 days prior to any primary election, and the 60 days prior to any general election.
This category was part of the electioneering communications rules. John McCain colorfully referred to these issue ads as "sham issue ads."
But, at best, the sham is in the eye of the beholder.
If a group of citizens gathers 45 days before a federal election and Congress is, at that very moment, considering legislation that is important to this group, our opinion is that they should be able to pass a hat to fund the broadcast of an ad about that issue, and mention the members of Congress responsible for that legislation.
This little group should be able to act as a press, just like the established corporate media, which can talk about legislation and mention candidates by name at any time without any legal restriction.
But in effect, for these non-media groups, their free press rights have been licensed. That's right, in America you need the equivalent of a license to participate in your democracy.
* You must first pick a Treasurer who will assume full legal responsibility for any and all actions taken by your group.
* The Treasurer must register your cause with the government.
* Then, your Treasurer must report to the government -- using complicated accounting procedures and even more tortuous electronic reporting tools -- reporting who gave by name, address, and occupation, as well as how much they gave.
* It's not uncommon for the Treasurer to get fined for a technicality.
Then, and only then, you're issued a number and approved!
It's no wonder we keep electing incumbents even though everyone is so dissatisfied with them.
* Would you want to be the Treasurer?
* Do you think people hesitate or fail to give to good causes because they don't want their names published?
If you're not registered, the station cannot accept your advertisement. They will get in trouble. You will get in trouble if they accept your ad anyway.
No license? No First Amendment rights. And that's what we call a "prior restraint" on Free Press rights.
Legislators must take an oath to "support the Constitution." An oath is supposed to be a solemn promise made in the presence of God. Many legislators today are admitting that they can't be trusted to keep their solemn oath if someone gives them money to violate it.
In the autumn of 2000, Harvey Bass, the owner of Harvey Bass Furniture and Appliance in the west Texas town of Muleshoe, painted ‘‘Save our Nation: vote Democrat; Al Gore for President’’ on the side of a leftover refrigerator shipping box. Bass left the homemade sign on the porch of his business on State Highway 214, to be seen by passersby. Soon another local resident, Bill Liles, ‘‘got tired of looking at it,
especially the ‘Save our Nation’ part.’’ Liles and a friend, one Mark Morton, decided to make a sign supporting Gore’s rival, Texas Governor George W. Bush. The two decided that their sign ‘‘should be bigger and better.’’ They obtained a large plywood board, hired a professional sign painter, and mounted the finished product on the side of a cotton trailer obtained from another local resident, Don Bryant. They
parked the trailer, with its sign, across the street from Mr. Bass’s store. ‘‘As word spread the sign became a topic of conversation at local gathering places. Mostly the Spudnut Shop on Main Street and the Dinner Bell Cafe´ on Highway 84. People started coming by and donating to help pay for the cost of the sign.’’ This spontaneous burst of political activity ended when another Muleshoe resident, Don
Dyer, filed a complaint with the Federal Election Commission against Liles, Morton, Bryant, and one of their ‘‘contributors.’’ Though Dyer apparently had no difficulty uncovering who was behind the sign, he complained that the sign lacked disclaimers required by the Federal Election Campaign Act. In due course the Commission’s General Counsel dutifully recommended that the Commission find ‘‘reason to believe’’
that the Muleshoe Four, as we might call them, had violated 2 U.S.C. § 441d(a), by failing to include a disclaimer on the sign stating who had paid for it, and whether or not it was authorized by the candidate.1 However, many other potential violations were not considered at all. For example, if the group spent in excess of $250 (quite likely when one includes the cost of the wood, the in-kind value for
the use of the cotton trailer, and the cost of hiring a professional sign painter) the group would also have violated 2 U.S.C. § 434(c)(1) by failing to file reports with the Federal Election Commission. If any of the men contributed in excess of $200 in cash or in-kind value, even if it was later repaid from donations, they might also have violated the reporting requirements of 2 U.S.C. § 434(c)(2). If the group spent more
than $1,000 on the activity—unlikely in this case, but not at all impossible when one adds in the rental value of the trailer, inkind contributions of gas to haul the sign, and other costs, and certainly an amount that similar spontaneous activity might exceed—then it would have also violated 2 U.S.C. §§ 432(a)-(h), 433(a)-(b), and 434(a) and (b) by failing to register as a political committee, name a treasurer, and file
more detailed reports. In this case, if any individual donated in excess of $50, it would have violated the limit on anonymous contributions, and if any individual had donated in excess of $1,000, it would have violated 2 U.S.C. § 441a(a). If Mr. Bryant’s cotton trailer was titled in the name of a corporation—perhaps his own Subchapter S corporation—lending it to the group would have violated the prohibition on corporate
contributions of 2 U.S.C. § 441b. Total statutory penalties could have easily exceeded $25,000. The Commission eventually chose not to find ‘‘reason to believe,’’ but two of the six Commissioners dissented and even those voting to take no action on the complaint were forced to admit that the respondents had, in fact, violated the law.2
1 The case of the ‘‘Muleshoe Four’’ is Federal Election Commission Matter Under Review (MUR) 5156. A Statement of Reasons by Commissioner Scott E. Thomas is available on the Web at www.fec.gov/members/thomas/thomasstatement44.html. Other documents are on the public
record.See MUR 5156, Statement of Reasons of Commissioner Daryl R. Wold, Mar. 22, 2002, at. 4; Statement of Reasons of Chairman David M. Mason and Commissioner Bradley A. Smith, April 25, 2002. One dissenter felt strongly enough about the dismissal to write a lengthy dissent. See Statement
of Reasons of Commissioner Scott E. Thomas, July 15, 2002, at 3. As to other potential violations, Commissioner Wold estimated that the cost of the sign would have been ‘‘a few hundred dollars, at most,’’ but did not consider other cost such as use of the trailer and costs for hauling. Wold, supra at 3, n.3.
At about the same time that Liles and Morton were preparing their sign, a group of law students in Columbus, Ohio, decided to launch an organization called ‘‘Law Students for Bush-Cheney.’’ As they made preparations for their first meeting, the group’s faculty adviser cheerfully mentioned their plans in a casual conversation with a lawyer familiar with federal election law.
‘‘Well, be careful not to spend more than $250 advocating their election,’’ said the latter, ‘‘or you’ll have to file reports with the Federal Election Commission.’’ Planning for the group ground to a halt.3
In the summer of 2000 Mike Ferguson’s aging and ill parents established a trust fund, providing for substantial sums to go to each of their four children upon the attainment of 30 years of age, the completion of a bachelor’s degree, and marriage. Shortly thereafter, Ferguson became the first of the siblings to qualify for trust distributions, and he promptly spent a substantial sum
of this inheritance on his campaign for Congress. A prominent political operative for the opposing party then filed charges with the FEC, alleging that because the trust was not established until after the November 1998 start of the 2000 election cycle, the funds constituted an illegal contribution from Ferguson’s parents to his congressional campaign. The Commission agreed and found probable cause that Ferguson had violated
the law. Facing civil prosecution by the federal government, Ferguson agreed to pay a $210,000 fine to the Federal Election Commission. Ferguson’s case is not unique. In fact, in recent years the FEC has, with some regularity, fined parents for contributing too much to their children, children for contributing too much to their parents, and husbands for contributing too much to their wives.4
3 The formation of Law Students for Bush-Cheney was told to the author by Professor David Mayer of Capital University Law School. Professor Mayer was the group’s faculty adviser. The lawyer in question is the author. The reporting violation is 2 U.S.C. § 434(c).See also MUR 4568 (mother and father-in-law made excessive contribution); MUR 5348 (excessive contribution by parents); MUR 4568 (excessive contribution by son of candidate); MUR 5049 (excessive contribution by spouse of candidate).
4 MUR 5138, Mike Ferguson;
5 See United States v. Eichman, 496 U.S. 310 (1990) and Texas v. Johnson, 491 U.S. 397 (1989) (holding that burning the United States flag is a form of protected speech under the First Amendment and striking down laws prohibiting flag burning); Reno v. ACLU, 521 U.S. 844 (1997) (striking down Communications Decency Act, limiting pornography transmitted
to minors over the Internet); GreaterNewOrleans Broadcast
At a time when flag burning, Internet pornography, and commercial speech enjoy unprecedented First Amendment protection,5 why would core grassroots political activity, or gifts from parents to children to use for political activity, be subject to civil and even criminal penalties?
Another Horror Story
In a small cluster of about 300 homes near the town of Parker, Colorado, two residents begin working for annexation. Six residents oppose the idea. The two in favor sue the six opposed and anyone who might have heard the ideas of the six opponents. George F. Will describes the resulting death of the First Amendment:
The Messiness of Political Hygiene
The Don Dyer Saga
On Saturday, January 1, 2011 4:41 pm, I received the following email from Don Dyer:
|Thank you so much for using the much abused propaganda against me. Have you are any other of the right wing nuts ever looked into the background of my reason for filing complaint against the sign. I'll fight you sorry sons of bitches until the day I die. Go to hell!
I had no idea who this guy was. I have written somewhere in the neighborhood of 3,000 webpages on various domains. The name "Don Dyer" was no more of a bell-ringer than "Harvey Bass," "Bill Liles," "Mark Morton," "Don Bryant," "Mike Ferguson," or any of the other characters in the campaign finance cases described on this page. So I asked Mr. Dyer who he was and what
he was talking about, and he replied:
|Do a search of your website.
That's it. So I did. That led me to this page.
So here are my responses to Mr. Dyer's initial email:
- I don't consider the article from the Cato Institute to be "propaganda." The Cato Institute is pro-homosexual. I don't consider them "right wing."
- I don't know how the Cato article has been "much abused." I don't even know how it's been "used."
- No right-winger I know considers me a right-winger (though people of all political persuasions consider me a "nut").
- I don't feel I need to know the "background" or the "reason" for "filing a complaint against" a sign, or any other form of communication protected by the First Amendment. "Filing a complaint" = initiating force and threatening people with violence such as fines, incarceration,
and ultimately death for resistance.
- To underscore that last sentence, Mr. Dyer says "I'll fight you" (an initiation of force) and "Go to hell!" (a threat of violence).
- Knowing nothing else about his case, I'm inclined to conclude that Mr. Dyer is a frustrated, bitter, and contentious man, not a peacemaker or conciliator. This is exactly the kind of person who seeks government laws as solutions to their problems.
But I could be wrong about him, and completely ignorant of all the facts. So I asked him to tell me what I need to know, and promised a place on this webpage to voice his side of the story. Here it is:
The Cato article has been around. I didn't know this. Other references to Mr. Dyer I was not aware of seem to have originated with Brian Anderson, whose article was reprinted by numerous bloggers:
There are probably others. Poor Mr. Dyer. Lots of people are talking about him. But instead of using the time-tested principles of "Public Relations," and courteously explaining the facts to these bloggers, Mr. Dyer probably told them all to "go to hell," promising to "fight you," and asking jackbooted government thugs to initiate force against them and threaten them with unspeakable violence.
It is completely contrary to the First Amendment of the Constitution for the government to squelch political speech. People who want the government to do so are un-American.