Scott Brown and Elizabeth Warren Want to Shut People Up

By Wendy Kaminer

The Massachusetts senatorial candidates are asking for no third-party advertisements in the upcoming race. But are they going too far in trying to silence the electorate?

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Updated 1/23/2011

Maybe Elizabeth Warren and Scott Brown are sincere in their stated desires to stop third parties (in other words, citzens) from trying to influence the Massachusetts Senate race with ad buys, or maybe they're engaged in political posturing. In either case, an agreement by candidates to try to silence their respective supporters is less an exercise in good government than it is un-self-conscious elitism. It reflects obvious contempt for the political-speech rights of people and groups the candidates aim to govern. It signals mistrust of voters: candidates who believed what they say about the intelligence and common sense of the voting public would have faith in the public's ability to tune out or tune in and evaluate political ads. Besides, not all ads are false and misleading. Some are informative, or equally informative as claims made by candidates themselves.

Candidates naturally want to monopolize electoral speech; they want to "control the narrative."

Keep in mind that the third-party groups targeted by the proposed Brown/Warren agreement would presumably not be limited to well-endowed, independent-in-name-only groups, effectively acting on behalf of the candidates, created and run by close allies. Presumably, advocacy groups will also be asked to stifle themselves during the campaign: If the agreement is to have any appreciable effect, pro-choice organizations will be pressured to abstain from running ads attacking Brown's record on choice. Pro-business groups will be expected not to criticize Warren's economic policies.

How would the Brown/Warren demands be enforced? The expenditures of disobedient advocates and activists would, in effect, be charged to the candidates, according to a Brown proposal. He and Warren would agree to contribute to charity half the cost of offending ads run on their behalf.

Of course, Brown and Warren are entitled to fine themselves for the speech of others if they wish, and their agreement would not (and could not) impose any legal restrictions on the rights of independent groups. But it seems fair to assume that they would impose legally binding rules on outside groups if they could: campaign-finance reform has always aimed, in part, at restricting third-party speech and "influence" on elections. (Imagine that -- citizens trying to influence elections.)

Indeed, Warren apparently wants the press to help silence outside groups. According to the Boston Globe, she has "suggested notifying broadcasters in the hopes of getting their help and 'ensuring that the agreement not only cover express advocacy ads, but all paid advertisements that seek to promote or attack either candidate or campaign.'"

Shame on any media outlet that offers "help" for efforts to repress independent advocacy. Candidates naturally want to monopolize electoral speech; they want to "control the narrative." They're entitled to desire control, obviously, but they're not entitled to exercise it, and they should surely know better than to ask media outlets to act as enforcers for their campaigns. The presumptuousness of the proposed Brown/Warren agreement is jaw-dropping.

This nascent effort to chill third-party speech is reminiscent of repressive campaign finance laws discredited decades ago. In the early 1970s, federal law limited expenditures by federal candidates and tightly restricted independent political advocacy. The Federal Election Campaign Act of 1971 imposed the equivalent of licensing requirements on speech by groups labeled "political committees." Any person or group intent on purchasing an ad allegedly "on behalf" of a candidate was required to obtain a certification from the candidate that the cost of the ad did not exceed his or her spending limit. Amazingly, any publication that accepted an ad without the requisite certification was subject to criminal penalties.

The ACLU challenged these draconian efforts to impose campaign finance restrictions on truly independent advocacy in two early cases -- National Committee on Impeachment v U.S. and ACLU v Jennings.  Former ACLU Executive Director Ira Glasser offered a useful summary of both cases in Congressional testimony a decade ago.

The 1972 case, National Committee on Impeachment, Glasser recalled, involved three elderly individuals, unconnected to any candidate or party, who purchased a New York Times advertisement calling for President Nixon's impeachment, condemning the secret bombing of Cambodia, and praising members of Congress who voted against it, including George McGovern, Nixon's opponent in '72. The federal government sued the three ad sponsors, charging them with violating federal bans on expenditures that "might influence the upcoming presidential election by criticizing President Nixon and applauding one of his possible opponents, Senator McGovern." The government also threatened The New York Times with criminal prosecution if it published a similar ad again. The ACLU won a ruling from the Second Circuit Court of Appeals, reversing a lower court order against the three offending speakers and rejecting the government's broad reading of federal election law.

A year later, the ACLU sought to purchase an ad from The New York Times criticizing the Nixon's Administration's opposition to court-ordered busing. The Times refused to accept the ad, citing the ACLU's failure to comply with federal certification requirements; the ACLU sued and won a federal court ruling in ACLU v Jennings enjoining the government from declaring the ACLU a political committee subject to burdensome expenditure, reporting, and disclosure rules. The ACLU was and remains a non-partisan, independent, member-supported advocacy group, and as the Court observed, "It is well-established that the requirements of public disclosure and reporting of membership lists cast a chilling effect upon an individual's right to associate freely and to voice personal views through organizational ties."

I'm not suggesting that PACs and shadowy groups that are actually, if not formally, connected to candidates should enjoy the same rights as independent advocacy groups, including the same protection against disclosure. But it's worth remembering that the history of campaign finance reform is a history of efforts to burden independent advocacy groups with the same restrictions imposed on PACs and shadowy groups effectively working with candidates.

An agreement by opposing candidates to quiet "third-party" speech suggests a similar failure to distinguish between campaign shills and independent voices, and a similar hostility to the political-speech rights of independent groups that amplify the views of individual citizens. Candidates may well prefer that individuals express themselves politically by contributing to and volunteering for their campaigns, but some might prefer to "voice personal views though organizational ties."

Elizabeth Warren, and her supporters, may end up regretting a third-party speech agreement for political reasons: Scott Brown reportedly has about a $12 million campaign chest compared to her $6 million. She raised a reported $1 million yesterday in a money bomb, but he will continue raising money as well. If he maintains a significant spending advantage, she'll need the aid of outside groups more than he will. Perhaps she's willing to stand on principle even at the cost of losing the election. That would be admirable -- if only she were standing on an admirable principle.


UPDATE 1/23/2011:

On Monday, both candidates agreed to and signed the pledge. I usually avoid the overused word "Orwellian," but calling the "tentative" new agreement between Brown and Warren to suppress "third party" speech the "People's Pledge" is a classic example of the duplicitous political language that Orwell so memorably condemned. In the name of amplifying the people's voice, Brown and Warren will endeavor to silence it. Exploiting outrage over a few billionaire financed "super-PACs," they are also demonizing political speech by advocacy groups (like the League of Conservation Voters) and declaring that "their interference in this race will not be tolerated."

Really? A sitting Senator and his opponent "will not tolerate" speech by citizens and groups of citizens who speak without the permission or cooperation of their campaigns? This is authoritarianism, not populism; and campaign finance reformers who view it as a victory are dupes, who know not what they do, or charlatans.

Image: Composite Image / Reuters

This article available online at:

http://www.theatlantic.com/politics/archive/2012/01/scott-brown-and-elizabeth-warren-want-to-shut-people-up/251693/