If you read some major media outlets, you may hear an endless chorus of complaints about how the little person will always lose to powerful moneyed interests. “America is not a democracy,” thunders Yascha Mounk, in the Atlantic magazine. “The levers of power are not controlled by the people,” says the professor whose website touts himself as “one of the world’s leading experts on the crisis of liberal democracy and the rise of populism.” Except that, done right, citizen advocacy is alive and well in America.
For example: A classic case of citizen advocacy produced a solution to a common exercise in today’s communities: what to do when a property developer wants to use land in a way that the surrounding community doesn’t like? In Issaquah, Washington, east of Seattle, three residents with no political experience went head-to-head against a local property developer with deep roots in their community. The result? The community has a new park, the developer “has no animus” and walked away with a satisfactory amount of money, and lots of Americans have a new understanding of the power of advocacy to affect public policy.
Their tools? As the Seattle Times says: “an army of supporters, a nearly endless string of meetings, and an 84-foot scroll of signatures.”
A glass half-full/half-empty problem, with the definition depending on perspective? Perhaps. But it’s just as likely that the problem, as defined by Prof. Mounk and others, is that their favored solutions are not, in fact, as popular or as legitimate as they think. Not that they are worse or better, but that their proponents choose force, including the use of government power to limit and mandate actions, rather the classic American forms of persuasion and education.
In other words, advocacy. Classic. It works. Still.
Much of recent press coverage about the House of Representatives’ consideration of H.R. 1, the “For the People Act,” the newly-installed Democratic leadership’s new attempt at an omnibus restriction of political speech and activity, has proceeded without a critical look at the claims of need for legislation. The Editorial Board of the Oklahoman has a refreshingly-clear and brief rebuttal to the fundamental claims underlying H.R. 1. Excerpts:
THERE is an obvious conflict between free-speech rights and politicians’ desire to micromanage their opponents’ campaign spending and donations, and past “reforms” have made campaigns more expensive with less accountability. There’s no reason to think a new federal package will generate better results. …
From a 20,000-foot view, it’s evident complaints about the undue influence of money in politics are overblown and that past “reforms” have made things worse. When the McCain-Feingold Act of 2002 limited private contributions to political parties, it shifted donations and greater influence to ideological interest groups and wealthy citizens, which most officials now concede resulted in more extreme rhetoric, polarization and gridlock.
Now House Democrats are, in effect, vowing to reform the problems created by similar reforms, which in turn will lead to efforts to fix the problems created by the reform to the reform. Here’s a better approach: Leave well enough alone. While we generally favor transparency in reporting of candidate contributions, efforts to stymie citizens’ free-speech activities are not only unnecessary, but too often counterproductive.
In today’s USA Today, the always perspicacious Eric Wang has a concise and easily-readable explainer about the Russian effort to use social media to exacerbate social tensions in the United States: “Russia isn’t out to decide our elections, they want to divide us and damage our country”.
And his take on the proposed “solutions?” The cure is worse than the disease. Or put another way, those who want to silence Americans’ advocacy discourse in the entirely-mistaken belief that they are preventing some foreign takeover are actually doing what they claim to be defending against.
The reports reveal how the Russian efforts go far beyond election interference. The real goal is outright sabotage by tearing apart America’s social fabric.
Since 2016, states such as New York and Maryland have enacted laws that purport to address Russian interference with U.S. elections. Members of Congress also have justified bills such as the “Honest Ads Act” and “DISCLOSE Act” on this basis. This focus misses the proverbial forest for the trees. As a result, the legislative reaction is misguided and unnecessarily burdens core First Amendment speech. Ironically, these efforts advance Russia’s sabotage.
Most of the legislative response has focused on amending campaign finance laws. The measures propose new reporting, disclaimer and record-keeping requirements for paid online ads that legislators deem to have some tangential relationship with elections.
These far-reaching bills and laws are an extremely poor fit for the Russian threat. They unjustifiably burden Americans’ core First Amendment speech rights. Social media platforms have stopped selling political ads in Maryland and Washington state in response to these laws. The laws’ infirmities make them susceptible to constitutional challenges such as the one brought by several media outlets against the Maryland law, which is pending in a federal court.
Even so, lawmakers cannot address the problem without first correctly identifying it. So far, legislators have failed at even this initial step. Instead, they have rushed to pass laws burdening Americans’ free-speech rights.
This reaction has weakened one of this country’s great strengths and has unwittingly advanced Russia’s agenda.
UPDATE: The Supreme Court of the United States has denied review of both of these cases. The petition in Zimmerman v. City of Austin was denied on December 10, 2018. The petition in Lair v. Mangan was denied on January 14, 2019. As usual, there was no explanation for the denials.
In the last week, PPLI has filed two amicus curiae briefs in the U.S. Supreme Court dealing with the “appearance of corruption” rationale for imposing limits on campaign contributions. One brief, with the Institute for Free Speech, was filed on August 16, 2018, in Zimmerman v. City of Austin, Texas, No. 18-93; the other brief was filed on August 23 in Lair v. Mangan, No. 18-149.
The briefs look at a hidden, but vitally important issue in these cases. Much of the debate over whether governments can limit campaign contributions is over “corruption,” the exchange of official actions for gifts to the officials. But there is another, related but less-discussed issue: the “appearance of corruption,” which is measured by public confidence in the American democratic system. The evidentiary standard for showing corruption has been recently debated at the Supreme Court and limited to actual quid pro quo corruption. But the lower courts sometimes simply rely on public opinion polls or campaign consultants’ testimony about public opinion to justify campaign limits.
The PPLI amicus briefs ask the Supreme Court to review these cases to be sure that the public opinion polls and other methods used to test an “appearance of corruption” meet the most up-to-date evidentiary standards for justifying contribution limits.
Complete information can be found on this Litigation page.