View in Your Browser

National Popular Vote: Disenfranchising Voters

The Charlotte Observer reprinted a Los Angeles Times editorial arguing in favor of the national popular vote.

In such a system, each state that has signed-on to be part of the national popular vote plan would award their electoral votes for president to the candidate who has received the most nationwide votes.

Assume North Carolina is part of the national popular vote system. Let’s say that you vote for President Obama in 2012 and a majority of North Carolinians does as well. If Mitt Romney (or whomever) wins the national popular vote, your Obama vote is rendered meaningless. The wishes of North Carolina voters are ignored. For those who don’t like Obama, just reverse the order of the candidates above.

There are many other problems with the national popular vote. It shifts excessive power to urban areas and states with the largest populations. It also presumes that states and their citizens don’t have unique needs.

 

Free Speech is Super

The News & Observer, in an editorial entitled  "Not so super, " once again criticizes the Citizens United case. In that U.S. Supreme Court case, the Court held that corporations and unions can use their own treasury funds to support or oppose candidates in federal elections.

The hysteria over this case is absurd. The News and Observer believes that the opinion will lead to unlimited spending, "What possible chance will reformers and regulators have when industries that want to eliminate regulation or enjoy big tax breaks are like ATM machines with no limits on withdrawals? The answer: no chance. "

The newspaper assumes that it is "obvious" that the impact of this case will be a "dramatic ramping up of spending." However, there’s no evidence that states allowing corporations and unions to spend money to support or oppose candidates in state elections has led to larger amounts of spending compared with other states with prohibitions.

There’s also an assumption that additional spending is a bad thing–in fact, more spending can very well be a good thing when it helps provides more information about candidates. Practically, corporations wouldn’t want to go overboard with spending for or against specific candidates because it could hurt them in the public eye.

Important points:

1) Corporations and unions still can be prohibited from providing money directly to candidates. The case only involves independent expenditures.

2) Corporations and unions already could spend money on independent expenditures through their own PACs. The funds couldn’t come from their treasury funds but from donations from shareholders, employees, etc. Whether corporations will decide to spend more than they otherwise would have through their own PACs remains to be seen. Certainly, some companies will spend more (again, not a bad thing unless you believe more speech is a bad thing).

Most importantly:

3) If the Supreme Court didn’t reach the opinion that the N & O complains about, then the impact would have been devastating to free speech rights. According to the Court:

The law [McCain-Feingold] before us is an outright ban, backed by criminal sanctions. Section 441b makes it a felony for all corporations–including nonprofit advocacy corporations–either to expressly advocate the election or defeat of candidates or to broadcast electioneering communications within 30 days of a primary election and 60 days of a general election. Thus, the following acts would all be felonies under §441b: The Sierra Club runs an ad, within the crucial phase of 60 days before the general election, that exhorts the public to disapprove of a Congressman who favors logging in national forests; the National Rifle Association publishes a book urging the public to vote for the challenger because the incumbent U. S. Senator supports a handgun ban; and the American Civil Liberties Union creates a Web site telling the public to vote for a Presidential candidate in light of that candidate’s defense of free speech. These prohibitions are classic examples of censorship.

If the N&O used its treasury funds to express support or opposition to federal candidates, they too could have been in trouble (newspapers usually are corporations after all). The federal law tried to exempt media corporations, but the Court rejected such a provision:

The media exemption discloses further difficulties with the law now under consideration. There is no precedent supporting laws that attempt to distinguish between corporations which are deemed to be exempt as media corporations and those which are not. "We have consistently rejected the proposition that the institutional press has any constitutional privilege beyond that of other speakers."

Democracy (much less the world) will not end as a result of Citizens United. In fact, had the Court ruled differently and said that Congress could make it a crime to make movies or publish books that even in a small way express support or opposition for a candidate, it would have been a real threat to democracy and free speech.

 

Unique Opportunity to Hear Chief Judge of the DC Circuit

Usually considered the "second-highest " court in the land, the DC Circuit rules on some of the most important cases in the country. The John Locke Foundation and the Federalist Society, Triangle Chapter is hosting a special event next Friday.

The Chief Judge of the DC Circuit, the Honorable David Sentelle, will speak right here in Raleigh.

I’d like to cordially invite Rights & Regulation newsletter subscribers to this event.


All the best,

Daren

Click here for the Rights and Regulation update archive