The View from Right Field

Hunter Biden’s Paintings Tell Us How to Handle Disclosure of Contribution

Joe and Hunter Biden may have solved the problem of how we handle disclosure of contributions to political causes.  For Hunter Biden’s paintings, the Bidens are considering a plan whereby the paintings will be sold by a third-party art gallery.  The art gallery won’t tell Hunter or President Biden – or the public – who buys the paintings or even who bids on them.  Therefore, there is no possibility of corruption or improper influence.

Which seems like the solution to contributions to political causes, too.  California wanted to know the names of contributors to charities, including ones that take political positions, so it could ensure nothing untoward happened.  But the U.S. Supreme Court said no because of concerns about confidentiality and retaliation.  The Bidens may have given us the solution.

Once Again: Can Americans Be Trusted With Campaign Finance Disclosures?

Last Monday, U.S. Representative Joaquin Castro (Dem, Tex.) tweeted a list of 44 people in San Antonio, Texas, who contributed the maximum amount to President Trump’s campaign in 2019, with this comment:

“Sad to see so many San Antonians as 2019 maximum donors to Donald Trump – the owner of @BillMillerBarBQ, owner of the @HistoricPearl, realtor Phyllis Browning, etc. Their contributions are fueling campaign of hate that labels Hispanic immigrants as ‘invaders.’”

Campaign Financing Disclosure and Shutting People Up: In China and the United States

The Obama administration has rightly complained about a new law that China has passed with respect to foreign NGOs (non-government organizations).  According to the Associated Press, the new law subjects NGOs, inter alia,

“to closer financial scrutiny, requiring that they submit annual reports detailing their sources of financing, spending activities and changes in personnel.”

While the law was passed at the end of April, Secretaries John Kerry and Jacob Lew mentioned the law again in their recent visit to China.

The purpose of the law is pretty obvious: To subject foreign NGOs to more government scrutiny and to make it harder for them to do things the government doesn’t like.  In particular, if financing sources have to be identified, some of those sources may stop contributing to NGOs.  They may decide it’s not worth jeopardizing their business or other interests in China to do so.  If NGOs have less money, they can do less to help people in China – and they cause less trouble for a Chinese government that is becoming more hostile to dissent and disagreement.

Freedom of Political Speech May Depend on 2016

Back in October, I wrote a post I titled “The ‘Freedom Caucus’ Is Missing the Point: You Have to Win Elections to Get Stuff Done.”  The main point of the post was this:  President Obama is now doing most of what he is doing through executive orders and administrative action.  If the Republican candidate for president doesn’t win in 2016, the next Democratic president will continue doing this.  The Freedom Caucus, et al., are missing the fact that many of the things they want the House Republicans to do will turn off so much of the middle 20% of the electorate, which is where elections are won, that the result will be a Democrat winning next November. 

Which is why I think it is so important to play the long game and focus on winning the election next November, instead of doing things to excite some part of the Republican base now.  I have been hoping to write a similar post on foreign policy, but I have not be able to get to it.  However, there is another issue where the result next November is just as important: the First Amendment and freedom of speech – especially political speech.

Back when I was in law school, and William Rehnquist was being appointed to the Supreme Court, liberals (as they were then called) were the absolutists (or pretty much absolutists) on freedom of speech.  Justice Hugo Black¹ was famous for carrying around a copy of the Constitution and quoting the First Amendment in response to questions on freedom of speech.  He would say things like this:

Was Juan Williams’ Problem What He Said Or the Fact He Was On Fox?

As everybody knows by now, National Public Radio fired Juan Williams for, inter alia, making the following comment on Fox News:

"‘I mean, look, Bill [O’Reilly], I'm not a bigot. You know the kind of books I've written about the civil rights movement in this country. But when I get on the plane, I got to tell you, if I see people who are in Muslim garb and I think, you know, they are identifying themselves first and foremost as Muslims, I get worried. I get nervous.’"

But instead of commenting on that, I wanted to comment on the reaction of some of those on the left to the firing.  For example, consider these excerpts from Michael Tomasky’s blog at Guardian.co.uk (while Tomasky writes for the Guardian, he is American, not British):

“Williams once had a distinguished career. He spent nearly a quarter-century at the Washington Post ….

He … wrote the companion book to the amazing early 90s PBS documentary series on the civil rights movement, Eyes on the Prize. He was a big deal. …

But maybe he changed, too. Because what sort of non-conservative – one perceives Williams to be some degree of liberal; he'd probably protest that he's just a reporter; in either case, he's not a conservative – agreed to be an in-house flunky at Fox? …

[I]f you're any kind of liberal at all, even in the softest and most non-political possible sense, it's basically an indefensible thing to do. Fox News wants liberalism to perish from the face of the earth. Going on their air on a regular basis and lending your name and reputation to their ideological razzle-dazzle is like agreeing to be the regular kulak guest columnist at Pravda in 1929. For ‘balance’. …

In a sense, Williams got what was coming to him. Sleep with dogs, get fleas.”

(The whole column is here.  Please read it to make sure I didn’t change the meaning in excerpting these parts.)

Look at Mr. Tomasky’s mindset.  I think it is safe to say that he is not a big fan of Fox News, though elsewhere in his column he says: "[B]ut then again, I don’t watch.”  You sort of wonder why he cares (or how he knows) if he doesn’t watch.

But, of course, he cares a lot.  His caring actually fits with the comments made by a number of people in the Obama administration in October of 2009 about Fox News.  It started with Communications Director Anita Dunn, but it soon escalated.  Press Secretary Robert Gibbs said it was the White House’s opinion that Fox News was not a “news organization.”  Then both David Axelrod and Rahm Emanuel appeared on Sunday morning news shows making the same point.  Mr. Axelrod even encouraged ABC to join the Administration in treating Fox News as illegitimate.  You wondered if it might not be a precursor to an attempt by the Administration to exclude Fox News from the White House press pool, etc.  But it didn’t stick.  Other news organizations didn’t go along.  And the White House seemed to realize that this was not a battle it was going to win, so they quietly dropped it.

At the time, conspiracy theorists might have wondered whether, if the Obama administration could have made the charge stick that Fox News was not a legitimate news organization, they would have then argued that Fox News did not fit within the news media exemption in the Bipartisan Campaign Reform Act of 2002 (i.e., the McCain-Feingold Act).  Subject to one point that I will get to below (i.e., the Supreme Court decision last January in Citizens United v. FEC), that would have made all of Fox’s political reporting subject to the campaign finance laws, which would have put them, and the criticism of the President that they report, out of business.  More rational conspiracy theorists might have said that this was not the Administration’s original plan, but they would have worried about what the Administration, or another like-minded administration, might do at some point in the future.

One comment for those who think this could never have happened:  In 2006, the State of Washington increased its gas tax by 9.5 cents per gallon.  A group was organized to try to get the increase repealed in a referendum.  A couple of announcers on a Seattle radio station talked up the repeal effort.  Several of the local governments who were going to get money from the increased gas tax brought a lawsuit to stop the two announcers.  They argued that the announcers were not just supporting the repeal; they were agents of the repeal effort.  Therefore, their broadcasts constituted political advertising, and the radio station was making an in-kind contribution to the repeal effort by allowing them to talk about the repeal campaign on the air. 

After the trial court decided against them, the group opposing the increased tax did report the value of the broadcasts as a contribution.  The real problem, though, was going to come later.  Since Washington state limits the amount of contributions a person or company can give in the three-week period before an election, letting the announcers talk about the repeal campaign for more than just a few minutes during this three-week period, could have broken the law and subjected the station to fines.

Ultimately, the lawsuit was thrown out, but the fact that the local governments brought the lawsuit, and that they found a trial court judge who was willing to grant a preliminary injunction on their behalf, is scary enough.  Also, while the Washington State Supreme Court found in favor of the radio station, they did so on the grounds of a media exception in the statute.*  If for some reason, the station was held not be fit within the media exception, the law would have applied to them, and the announcers would have been silenced.  On a federal basis, if Fox News is not a legitimate news media organization, the same theory could be applied to them.

Fortunately, at this point, there are two things stopping this from happening.  First, the Obama administration and people who think like Mr. Tomasky have not been able to convince the rest of us that Fox News is illegitimate.  Second, the Supreme Court’s decision in Citizens United last January invalidated some of the free speech restrictions on groups organized as corporations.  (As I have mentioned before, President Obama was “somewhat upset” by that decision.) 

However, if the Citizens United decision is reversed by a future Supreme Court, and if the Obama administration or some future administration with similar views is able to convince enough people, or the right people, that Fox News is not a legitimate news organization (and it shouldn’t be too hard with people like Mr. Tomasky), then liberals will be able to rid themselves of this troublesome network.

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* For information on the Washington state case, see here, here and here.

President Obama Claims His Opponents Are Using Foreign Campaign Contributions Against Him – Because, of Course, They Are Evil

The campaign has less than a month left, and things are not looking good for the Democrats.  And so, last week President Obama began suggesting that groups supporting Republican candidates are violating the law by accepting and using foreign money for campaign purposes.  According to The New York Times:

"President Obama used twin campaign appearances on Thursday to lash out at the private money that has filtered into Republican coffers for the November election campaign, suggesting that some of it came from abroad ….

In a not-so-veiled reference to the U.S. Chamber of Commerce, President Obama complained that ‘groups that receive foreign money are spending huge sums to influence American elections, and they won’t tell you where the money for their ads come from.’ Mr. Obama mentioned a report by the Center for American Progress, a liberal research group, which this week asserted in a blog that the Chamber of Commerce may be mingling money from foreign contributors with its domestic receipts as it pays for advertisements and other political activities. That could be illegal, and the Chamber has vehemently denied it.”

This idea of foreign campaign contributions being used against him (and against Democrats) has been a bête noire of President Obama for a long time.  In his criticism of the Supreme Court’s decision in the Citizens United v. FEC* during his State of the Union address, President Obama claimed that the decision would allow foreign corporations to make campaign contributions in our elections.  And he said this even though the majority opinion of Justice Kennedy specifically said it was not deciding that question.  (See part III.B.4 of Justice Kennedy’s opinion.)

It seems to me that what we are seeing in President Obama’s complaint/accusation is more than just normal politicking.  This is more than just complaining that the Republicans disagree with him.  It’s even more than they are not playing fair.  It’s that they are cheating; it’s that they are violating the law.  And he is saying it even though the President and the Democrats have no proof (also here); it’s just that the idea and the charge fit his, and other Democrats’, view of what Republicans do.  

This goes to a point I have made before (as have many others).  Republicans, at least regular/mainstream/standard Republicans, give Democrats the benefit of the doubt in assuming they have good intentions.  We think they really want to help people, etc.  In our view, the disagreements (and the disagreements are strong) are about means, not ends.  We don’t assume Democrats are selfish and/or don’t care about people.  We just think they want to go about it the wrong way.

It is not clear, however, that Democrats, including President Obama, feel the same way about Republicans.  In fact, it seems that they probably do not feel that way about us.  He/they (or at least many of them) do not seem to be willing to give Republicans the benefit of the doubt.  They seem to believe their campaign rhetoric that we just want to help the rich and we don’t care about the poor and the sick and the elderly, etc.  We’re out for ourselves and the heck with everybody else.  Democrats seem to have trouble accepting the idea that Republicans really do want to make this a better place for the poor and sick and needy.  It seems like they don’t believe that we just think there are better ways to do it than what they are proposing.

President Obama seems to get irritated when people disagree with his proposals and programs, especially when they get into the details that he doesn’t feel comfortable refuting.  So, instead, he brings the other side’s intentions into question.  He certainly has done that on taxes and health care.  He doesn’t seem willing to accept the idea that other people don’t agree that more government is the way to help people.  It seems that for President Obama – and other Democrats – more government programs and rules and money is the only way, or at least the best way, to help people.  They think that if a program is supposed to do something, then it actually will do that.  And, if you are against the bill or the program, it must be because you don’t want to help people.  It can’t be that you think there is a better way to do it or that you don’t think the program will work.  It has to be that you don’t care.

And if you don’t care, if you only think about yourself (and the rich), then it is only logical you would be willing to violate the campaign laws – by accepting foreign contributions – in order to win.  They don’t have to prove it; they just know we’re the kind of people who do things like that.

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* Among other things, the Court’s decision invalidated that part of the Bipartisan Campaign Reform Act of 2002 (a/k/a McCain Feingold) which prohibited corporate entities (including businesses, unions and public interest groups) from spending money on political ads during the 60 days before a general election that actually mentioned candidates’ names (a novel thought: free speech in the period before an election).  The Court’s decision can be found here.)

DISCLOSE Act Discloses Mostly Democrats

Sometimes when I am feeling especially naïve, I think how nice it would be if we could trust our representatives in Congress to play reasonably fair and not use the system for partisan advantage. But we can’t, of course. Here is the most recent example.

President Obama made his displeasure with the Supreme Court decision in the Citizens United case clear earlier this year. The Citizens United decision invalidated a law which had prohibited corporations from making certain types of political speech in the 30 days before a primary election and in the 60 days before a general election.

Now the first thing to note here is that the word "corporation" does not just mean businesses. "Corporation" as used here refers to a form of organization. Businesses are usually corporations, but so are labor unions and public interest groups. So the Supreme Court decision did not just free up businesses, it allowed unions and public interest groups to talk, too. (President Obama didn’t mention this point when he complained about the decision in his State of the Union address.)

Along with President Obama, the Democrats in Congress did not like this decision. So they have come up with something called the DISCLOSE Act. "DISCLOSE" is short for "Democracy Is Strengthened by Casting Light On Spending in Elections". (Truth in labeling laws do not apply to Congress.)

Of course, the real purpose of the Disclose Act is to help Democrats in the fall elections by limiting the right of businesses and others to say what they think about various candidates. The initial bill, which was sponsored by the head of the Democratic Congressional Campaign Committee (you can’t make this stuff up; nobody would believe it), didn’t apply to unions – for some unknown reason. That wasn’t going to fly in the Senate so the limits now apply to businesses and unions, except for practical reasons, the effect will be more on businesses than unions.

There is also an exception for some interest groups, though not many. The original exception was tailored to exclude just the National Rifle Association. This was done in the House because otherwise Blue Dog Democrats would have voted against the bill. (As I said, you can’t make this stuff up.) That was so outrageous that a few other interest groups are now also excluded, but not many.

The bill is scheduled for a cloture vote in the Senate this week. There haven’t been any hearings, but Senator Reid doesn’t have time for that. He has elections to win (both personal and for his party).

The pure partisanship in all of this can be seen in the number of Republicans who voted for the bill in the House (two) and the number Senator Reid is hoping to pick up in the Senate (also about two). Whatever you think of McCain-Feingold (and I didn’t like it), it was bipartisan. This thing is about as bipartisan as the annual Cubs Convention.

The First Amendment should ultimately stop this. But that won’t happen immediately, and all the Democrats care about is getting past November. They can worry about the next election later.

Of course, the Democrats in Congress have the perfect role model for what they are doing here in President Obama. When he was just another candidate for the Democratic nomination for President, he agreed that, if John McCain was the Republican nominee and Senator McCain agreed to accept public financing for the presidential election, he would, too. After then-Senator Obama won the nomination and he realized he could raise more money than Senator McCain, he backed out, claiming that what he was doing was the equivalent of public financing because the public was giving him contributions.* (One more time: You can’t make this stuff up.)

All in all, about the only thing the DISCLOSE Act discloses is how far the Democrats will go to win in November.

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Sources re DISCLOSE Act: Debra Saunders, "In Washington, ‘Disclose’ Means Stifle," June 29, 2010; Russell Berman, "House approves campaign finance measure by 219-206," The Hill, June 24, 2010; "The Schumer for Majority Leader Act," The Wall Street Journal, July 27, 2010;

* See here, here and here.

Update (7/28/10 8:45/8:55 am):  While I was writing this yesterday and before I posted it this morning, the Senate defeated Senator Reid's cloture vote 57-41.  All Senate Republicans voted no (except John Ensign who was absent).  All Democrats voted yes.  Once again:  If you can't get Olympia Snowe or Susan Collins, it says something about the bill.

President Obama and Justice Alito

John Edwards used to talk of two Americas (the mind reels at the possible comments one could insert here, but I will skip it – for now, at least). Well, here is an example of the two Americas for you. One is an article written by Randy Barnett in Friday’s Wall Street Journal: "Obama Owes the High Court an Apology". The other is a post by Glenn Greenwald at "Salon.com": "Justice Alito’s conduct and the Court’s credibility".

Obviously, there is no way to reconcile Mr. Barnett’s comments with Mr. Greenwald’s. If men are from Mars and women are from Venus, these guys are from different galaxies, if not alternate universes. (For a more middle of the road view, consider Jay Cost at "RealClearPolitics.com".)

As for my view, I first go with this video of what President Obama said and what Justice Alito did (not quite Joe Wilson, to say the least):

Next I consider the fact that two of the things the President said about the decision were just plain wrong. One, the Court’s decision did not overturn a century of law. It overturned two decisions, the oldest of which was 20 years old. (If you want to know the difference between a hundred years and twenty years, ask a Cubs fan.)

Two, the Court specifically did not allow foreign corporations to make contributions.

But mostly, I come back to the video. Listen to the charges the President is making. Look at his supporters rise to their feet and applaud. And look at the Supreme Court justices sitting there, surrounded by supporters of the President who have been, in effect, been called on by the President to stand up and cheer his almost schoolyard bully-like criticism of the Court.

Actually, schoolyard bully is just about right. That was what the President was doing. Acting like a bully. Picking on somebody who couldn’t fight back. I remember those kids from school. It’s too bad that President Obama decided to act like one of them.

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Update 1/30/10 (12:35 am):  I fixed a couple of typos.

Campaign Spending and The Dog That Didn't Bark

An important clue in one of Sherlock Holmes’s mysteries was the dog that didn’t bark. Political campaigns have such things, too. One of the interesting ones this year is the absence of complaints by liberals and Democrats about campaign spending. By this time in most campaigns, Democrats are complaining that Republicans, and Republican-leaning groups, are spending way more money on political ads than the Democrats can. Liberals say this is unfair because it allows Republicans to, in effect, "buy" elections. Their theory is that the party with the most ads will get the most votes. This is one of the reasons Democrats pass laws to put caps on political contributions and would, if it hadn’t been held unconstitutional, like to put limits on how much money a candidate could spend. After all, if one party or one candidate can spend more money than their opponent, then the election isn’t fair, and the party or person with less money doesn’t have an equal chance to get their message across to the voters.

I have never believed these theories, for at least a couple of reasons. First, I don’t think Americans are so stupid that they just automatically vote for the candidate with the most commercials. I think issues, and the candidates’ positions on the issues, actually have a lot to do with how people vote.

Second, differences in the amount of money candidates have to buy commercials don’t bother me because I think it is less of a matter of the candidate with the most money getting the most votes and more a matter of the candidate with the most supporters (and therefore, on the election day, the most votes) getting the most contributions.

So, why isn’t the dog barking this year? Why aren’t the liberals and Democrats complaining about the differences in the amount of money available to the two presidential candidates? Is it because they have finally come round to my view on laws regulating campaign spending – or is it because, as Politico noted here, "Obama drowning out McCain in TV ads"?

I do not object to Senator Obama spending as much money as he can raise. I think that is what freedom and the First Amendment are all about. I just hope that Senator Obama’s supporters will remember their silence this year when, sometime in the future, the wallet is in the other pocket.

– George W. Bush

If you do not like George W. Bush, consider the fact that without the campaign finance laws we have, he would not be President. The requirements and difficulty of financing a race for President are such that it is very difficult to run unless you have name recognition and a ready source of funding. George W. Bush had both of these because of his father. Without them he would have never been considered a presidential candidate. With them, nobody, given the rules and restrictions that apply to running for President, had a chance to beat him for the Republican nomination. – – And no, the solution is not more laws. The solution is fewer restrictions so that more, and better, candidates can run.