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Clear the Censorship

by | 9:33 am, June 30, 2009 | 6 Comments

I am utterly astounded that so many Colorado "conservatives" endorse censorship. Let's get this straight, friends: if you endorse censorship, you are an enemy of liberty. This is just not a negotiable issue.

Amendment 54, a campaign censorship law passed by (bare) majority last year, thankfully has been suspended by a Denver court. This is not a surprise, given the measure violates the First Amendment of the U.S. Constitution and contradicts Article II, Section 10 of the Colorado Constitution, which states:

Freedom of speech and press. No law shall be passed impairing the freedom of speech; every person shall be free to speak, write or publish whatever he will on any subject, being responsible for all abuse of that liberty; and in all suits and prosecutions for libel the truth thereof may be given in evidence, and the jury, under the direction of the court, shall determine the law and the fact.


This is hardly ambiguous text.

I was therefore surprised to read an article at Clear the Bench Colorado endorsing Amendment 54. The article reminds us that the measure "passed by a vote of the citizens of Colorado." So what? Since when do Republicans endorse pure democracy? The entire point of constitutional government is to protect individual rights from mob rule.

Here is the central argument from Clear the Bench:

Once again, a judge has acted on the behalf of special interest groups intent on "gaining favor and contracts from public officials" through political contributions -- "probably triggering a flood of campaign contributions" from those seeking to curry favor while the 'temporary injunction' remains in effect.


The same argument could apply to McCain-Feingold. Does Clear the Bench also endorse the federal censorship law and decry the Supreme Court's limitation of it?

The purpose of Amendment 54 (now part of Article 28 of the Colorado Constitution) is to prevent recipients of no-bid government contracts from contributing to campaigns. The reasoning behind the restriction is obvious enough: people who benefit from tax dollars ought not influence the spending of those tax dollars. But while that reasoning points to a legitimate problem, it does not justify censorship.

With governments at all levels spending so much money through forced wealth transfers -- about 45 percent of the total economy -- political pull is just the way things operate. The only real way to solve that problem is to cut government spending and restore a free market. Until that happens, campaign censorship laws only further violate our rights without addressing the fundamental problem.

At a less fundamental level, if there is a problem particularly with no-bid contracts, then the solution is to restrict or eliminate no-bid contracts (and open contracts to bidding).

If we were to extend the argument that people who receive government funds should be censored, that would apply also to every student who takes government-backed loans, every senior citizen who accepts Social Security or Medicare, every employee and contractor of the government, and so on. In other words, given today's mixed economy and high rate of government spending, the logical conclusion of Amendment 54 is near-universal censorship.

Amendment 54 is shockingly broad; its limitations extend far beyond any direct connection between a no-bid contract and related taxes. Consider the details:

* Amendment 54 prevents contractors, "for the duration of the contract and for two years thereafter," from contributing to any political party or state or local candidate. There need be absolutely no connection between the political race and the contract.

* A contractor cannot "induce by any means" a campaign contribution "on behalf of his or her immediate family member." An "immediate family member" is defined as "any spouse, child, spouse's child, son-in-law, daughter-in-law, parent, sibling, grandparent, grandchild, stepbrother, stepsister, stepparent, parent-in-law, brother-in-law, sister-in-law, aunt, niece, nephew, guardian, or domestic partner." In other words, a contractor cannot seek to persuade these people that they ought to financially support any candidate. To be enforced, the measure requires thought police.

* The measure also prohibits campaigns from "intentionally" accepting funds proscribed by the measure. What is "intentional?" How is that proved? What this does is allow big-moneyed interests to go after candidates they don't like, discouraging potential candidates who can't afford a team of lawyers from running.

Amendment 54 is bad law. It is unjust law. It is unconstitutional law. It deserves to be thrown out.

Conservatives need to learn that the opposite of "judicial activism" is not mob rule. Judges play a legitimate role in protecting the rights of the individual from the whims of the majority.

It is a shame that Clear the Bench, which has undertaken a good and noble cause in advocating courts that uphold the rule of law, has muddied the waters by endorsing censorship. Let's hope that organization and conservatives more broadly correct that failing.
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Comments

  1.   Chris Maj
      June 30th, 2009 @ 12:59 pm

    Clear the Bench operates under an extremely limited mandate: to throw the rascals out. Unfortunately, this is not a long term solution to the problem because the rascals keep weaseling themselves back in, but the idea curries favor with the party out of power.

    The other clear definition I gather from Article II, Section 10, is that “…the jury, under the direction of the court, shall determine the law and the fact.”

    Consider the possibility of the jury being fully informed as to their constitutionally charged duty, nay, their natural right, of determining both the law and the fact — from issues of free speech on down the line. Why, you’d put many a stop to the repeated usurping of liberty by gangsters in the judicial class if common citizen members of the jury were informed of their right to declare NOT GUILTY regardless of the orders of the royalty in robed costumes and their legion of badge toting sycophants. It worked for William Penn and John Peter Zenger, so why not Colorado?

    For details on a more “curtail the bench” vs. “clear the bench” approach, please consider visiting the Fully Informed Jury Association at http://www.FIJA.org

  2.   Travis
      June 30th, 2009 @ 10:34 pm

    Ari, I think I’m missing something here. McCain-Feingold is statute, but Am.54 is part of the Colorado Constitution. How can a part of the (state) constitution be unconstitutional, at least as regards Colorado’s constitution (could still be against the federal one)?

    That’s what spooks ME about this judge’s ruling. Like the amendment or not, the people DID vote it into the state constitution. A judge now setting it aside seems to me a dangerous precedent for setting aside other amendments (like, say, TABOR) on a judge’s whim. You argue that Am.54 violates the US First Amendment and Colorado Art.II Sec.10 — but what if a judge decides that one of those is “too broad” or infringes other rights, and decides to “set it aside”?

    Excellent point about the root of all this, though. It can’t be said enough that there wouldn’t seem to be a need for “campaign finance” laws and other supposedly anti-corruption laws if there werent’ so damned many opportunities for corruption in the first place thanks to big government and the totalitarian regulatory bureau-state.

  3.   JustinAC
      July 1st, 2009 @ 9:28 am

    But “the people” voted for it!! … has got to be the worst argument in public policy. When “the people” vote for socialized medicine, will you sit there idly and accept it because it’s the will of “the people?” Face it, “the people” want a whole litany of stupid things: protection from competition, to eliminate “corporate greed,” farm subsidies, government mandated vacation days, etc, etc etc. Just because a majority of citizens want something dumb, doesn’t mean it is morally justified.

  4.   CTBC
      July 2nd, 2009 @ 11:07 am

    Apologies for the delayed response; it’s been a busy couple of days.

    Let me make it clear: I don’t endorse censorship.

    My friend (and I mean that in the personal, as well as political/philosophical sense) Ari Armstrong is usually a reliably insightful commentator, and certainly an individual of principle. We’re going to have to agree to disagree on this one…

    First off, the article cited was not an endorsement of Amendment 54; it was an endorsement of the ads supporting the “pro-Liberty” triad of initiatives last year (47, 49, and 54) – which were clever, and cute. C’mon, Ari – don’t you LIKE kittens and puppies?

    All kidding aside: I fail to see how 54 – which introduces a means for voters to review sole-source contracts and only restricts political contributions as a condition of the sole-source contract – constitutes censorship. 54 does NOT prohibit sole-source contractors to “be free to speak, write or publish whatever he will on any subject” – it merely prevents them from offering “pay-to-play” kickbacks to those “making the buy” on $100,000+ no-bid deals. Entities that prefer to be political players have the option of not entering into a sole-source contract; entering into such a contractual relationship is strictly voluntary. Contractually accepting restrictions on political activity (for example, as a condition of employment – is a well established legal precedent. Just ask an active-duty military member to express thoughts on the presidency or our “leaders” in Congress). This is NOT censorship.

    I emphatically agree with Ari that the best solution “is to restrict or eliminate no-bid contracts (and open contracts to bidding)” specifically (which Amendment 54 incentivizes), and “cut government spending and restore a free market” generally. Meanwhile, accepting corruption and “pull” as “just the way things operate” is morally indefensible, in my view.

    Finally: Ari makes some good points on the details of the Amendment’s verbiage. Reasonable people can (and do) disagree on whether it is too broad, and whether some sections can and should be challenged. However – and this was the primary thrust of the article – there’s a right and wrong way to go about this. Like it or not, Amendment 54 IS THE LAW – it’s part of the Constitution – and cannot simply be arbitrarily set aside based on a judge’s preference. Upholding the Rule of Law also means upholding constitutional means of redressing wrongs; not by whimsy, or caprice, or preference – but by an orderly process of challenge, argument, and redress.

  5.   CTBC
      July 2nd, 2009 @ 11:14 am

    Responding to the comment by Chris Maj:

    I respectfully disagree that restoring accountability and “rule of law” principles to the judiciary is a “limited mandate.” Your advocacy for “jury nullification” is a nice niche approach, but only applies in jury trials.

    To quote U.S. Supreme Court justice Sonia Sotomayor: apellate courts (such as the state and Federal Supreme courts) “are where policy is made” these days – which is NOT constitutional, nor the correct purview of the judiciary, but it IS an accurate description of what’s been happening. Guess what? Those aren’t jury trials – that’s the exercise of POLITICAL power by JUDGES. All the jury nullification and “fully informed juries” in the world won’t affect that one iota…

    Rolling back that kind of judicial activisms is HARDLY a “limited mandate” – it is ESSENTIAL for the survival of our ‘experiment’ in constitutional, limited government and the rule of LAW, not the rule of men (or “rule of whimsy”).

  6.   CTBC
      July 2nd, 2009 @ 11:19 am

    To JustinAC’s comment:
    one can certainly argue the advisability of the ease of amending the constitution in Colorado; BUT once the constitution is amended, it IS the highest law of the land (OVER judges and justices, too – even if they don’t like to accept that fact).

    It is NOT the purview of a judge or justice to change the law just because they don’t agree with it; THAT power is reserved to the ultimate political authority, the PEOPLE.

    Remember, the Constitution – either at the state or Federal level – is the PEOPLE’s restriction on the powers of government, just as statutory law is the government restricting the activities of people. Don’t like the Constitution, you can amend it (our system of government not only foresaw the neeed, it provides an orderly mechanism) but you CAN’T just throw it out.

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