Monday, January 23, 2006

Joe Parisi: Constitutional Scholar

When bloggers are running out of ideas to write about, they need to look no further than State Representative Joe Parisi to find inspiration. Parisi has outsmarted us all again. I recently made fun of Parisi's bill to allow felons to vote. Apparently undeterred by that stink bomb he unleashed on the State Capitol, Parisi is back with an even worse bill that demands comment.

Parisi is introducing a bill that caps the total amount of expenditures a campaign for State Senate or State Assembly can make. From Parisi's office:

TO: Legislative Colleagues

FROM: Representative Joe Parisi

RE: LRB3032/1 - Relating to imposition of disbursement and self-contribution limits applicable to candidates for legislative offices.

I am introducing a bill to create a new disbursement limit for candidates for the office of State Senator of $100,000 and a new disbursement limit for the office of Representative to the Assembly of $50,000. The bill would also required that these limits are binding upon all candidates for those offices regardless of whether they accept grants from the Wisconsin Election Campaign Fund.

If you're a campaign finance nutjob, this sounds like a great idea. There's only one small impediment holding this bill back - it's called the First Amendment to the U.S. Constitution.

35 years ago, Congress passed the The Federal Election Campaign Act of 1971, which imposed these exact types of total disbursement limitations on campaigns. The Act also imposed individual contribution limits and other limits with regard to contributions.

In 1976, the Supreme Court ruled on the constitutionality of these limits. While the contribution limits were mostly upheld, the disbursement limitations were unambiguously shot out of the water as violating the First Amendment. Read the following passages from Buckley and tell me if you think the Supreme Court is unclear as to the constitutionality of total expenditure limits:

From Buckley v. Valeo (1976) - My emphasis in bold:

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A restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached. This is because virtually every means of communicating ideas in today's mass society requires the expenditure of money. The distribution of the humblest handbill or leaflet entails printing, paper, and circulation costs. Speeches and rallies generally necessitate hiring a hall and publicizing the event. The electorate's increasing dependence on television, radio, and other mass media for news and information has made these expensive modes of communication indispensable instruments of effective political speech.

The expenditure limitations contained in the Act represent substantial rather than merely theoretical restraints on the quantity and diversity of political speech... In sum, although the Act's contribution and expenditure limitations both implicate fundamental First Amendment interests, its expenditure ceilings impose significantly more severe restrictions on protected freedoms of political expression and association than do its limitations on financial contributions.

Other expenditure ceilings limit spending by candidates, 608 (a), their campaigns, 608 (c), and political parties in connection with election campaigns, 608 (f). It is clear that a primary effect of these expenditure limitations is to restrict the quantity of campaign speech by individuals, groups, and candidates. The restrictions, while neutral as to the ideas expressed, limit political expression "at the core of our electoral process and of the First Amendment freedoms."

The First Amendment denies government the power to determine that spending to promote one's political views is wasteful, excessive, or unwise. In the free society ordained by our Constitution it is not the government, but the people - individually as citizens and candidates and collectively as associations and political committees - who must retain control over the quantity and range of debate on public issues in a political campaign. [424 U.S. 1, 58]
For these reasons we hold that 608 (c) [the statute mandating total campaign expenditure limits] is constitutionally invalid.

The contribution ceilings thus serve the basic governmental interest in safeguarding the integrity of the electoral process without directly impinging upon the rights of individual citizens and candidates to engage in political debate and discussion. By contrast, the First Amendment requires the invalidation of the Act's independent expenditure ceiling, 608 (e) (1), its limitation on a candidate's expenditures from his own personal funds, 608 (a), and its ceilings on overall campaign expenditures, 608 (c). These provisions place substantial and direct restrictions [424 U.S. 1, 59] on the ability of candidates, citizens, and associations to engage in protected political expression, restrictions that the First Amendment cannot tolerate.

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The court makes it clear that limiting campaign expenditures blatantly stifles free speech. But let's look at one more reason Parisi's bill is so bad.

Let's just say, for argument's sake, that total expenditures were capped. Who do you think would have the advantage in any campaign? That's right - the incumbent. (I knew my readers were smart.)

Incumbents always have the edge when a campaign starts. They have the name identification, they have huge office accounts that they use to bombard their constituents with bogus "surveys" and other literature, and they have lists of donors at the ready. Often times, the challenger has to raise and spend more than the incumbent to overcome these built-in disadvantages. By Parisi mandating equal spending, it gives incumbents an enormous advantage, as a challenger can only spend a certain amount to criticize their job in office (also known as "political speech.")

So beyond being unconstitutional, Parisi's bill is intellectually backward. Any politican working to stifle criticism of themselves doesn't deserve the office they hold. How could anyone even think of introducing a bill like this before checking the case law on this? It's not like Buckley was a small case - it's probably one of the most prominent cases of the last 40 years. Parisi introducing this bill would be like a State Assemblyman introducing a bill outlawing abortion, and saying "gee, I wonder why nobody's thought of that before?"

I expect an e-mail from Parisi thanking me for teaching him a lesson he should have learned before he introduced this acrid bill. Although I hope he doesn't stop with the embarrassing bills - they are great material.

And of course, we are still going to be subjected to endless editorials about how Republicans are wasting everyone's time with their legislative agenda. This when we have Democrats who are too lazy to do even the most basic research on their bills.