The Missouri Bar 2012 Constitution Day Program FREE SPEECH AND POLITICAL CAMPAIGNS A Joint Project of the Missouri Bar and HEC-TV Live September 17, 2012 STUDY GUIDE (Prepared by Millie Aulbur, Director of Citizenship Education, The Missouri Bar) INTRODUCTION The Missouri Bar and HEC-TV are proud to host The Missouri Bar Constitution Day Program for the fifth consecutive year. The 2011 Constitution Day Program on the presidency won a Telly Award. (The Telly Award was founded in 1979 and is the premier award honoring outstanding local, regional, and cable TV commercials and programs, the finest video and film productions, and online commercials, video and films. Winners represent the best work of the most respected advertising agencies, production companies, television stations, cable operators, and corporate video departments.) This year we are pleased to announce that the program will be broadcast from Thomas F. Eagleton Federal Courthouse in St. Louis. The program this year is on Free Speech and Political Campaigns. This topic is a somewhat ironic choice for a Constitution Day program because neither free speech nor political parties and political campaigns are mentioned anywhere in the original Constitution, which was presented on September 17, 1787 225 years ago. However, free speech is one of the guarantees of the First Amendment, which was proposed to the Constitution in 1789 and ratified in 1791. The Constitution Day panelists will address some of the very interesting and complex constitutional issues associated with political campaigns during the Constitution Day broadcasts. The 2012 Constitution Day program will air twice: 9:00-10:00 a.m. and 1:00-2:00 p.m. Constitution Day participants will have the opportunity to listen to a panel of experts on these topics and to submit their own questions and comments to the panel. The panel members are: Diana Bartelli Carlin, Ph.D. Dr. Bartelli is Vice-President of Graduate Education, St. Louis University and the creator Debate Watch. Governor Bob Holden. Governor Holden has served as both Missouri State Treasurer and the Governor of Missouri. Jack Oliver. Mr. Oliver is a lawyer and is the former Deputy Chairman of the Republican National Committee. 1
Objectives: Students will be able to: 1. Identify and explain First Amendment free speech issues that arise during political campaigns. 2. Identify and explain key court cases that have addressed free speech issues and political campaigns. 3. Discuss how contributing money to political campaigns has been equated with the right to free speech. 4. Distinguish the difference between protected speech and unprotected speech such as libel and slander. 5. Discuss the role that Congress has played in regulating political campaigns. 6. Discuss the role that political candidates have in making sure their campaign speeches and advertisements reflect a responsible use of free speech. 7. Discuss what role a responsible voter should take in evaluating political speeches and advertisements. Purpose of the study guide This study guide is intended as a resource for classroom teachers to prepare students for the Constitution Day broadcasts and to provide follow-up activities. The study guide has background materials, classroom activities, enrichment suggestions and links to outstanding Internet resources. THE MAKING OF THE CONSTITUTION AND THE BILL OF RIGHTS We recommend several excellent websites for exploring the philosophical and historical foundations and for learning about the Constitution and the Bill of Rights, and for information about the Constitutional Convention of 1787 and the constitutional ratification process: The National Archives site at www.archives.gov The National Constitution Center at www.constitutioncenter.org. The Constitutional Sources Project at www.consource.org FREE SPEECH AND POLITICAL CAMPAIGNS Although political parties are not mentioned in the Constitution, the Founders and Framers were not strangers to political campaigning. All of the colonies had elected officials and political alliances for choosing these officials, which were formed along religious beliefs, economic interests and eventually over feelings about British rule. These opposing alliances often engaged in vigorous debate over various issues. Moreover, just because political parties were not mentioned in the Constitution does not mean they were not on the minds of the Framers. In Federalist Paper #10 (all of The Federalist Papers may be found on the Internet from several sources), James Madison did not speak of political parties but rather of factions, which some scholars argue are the same as political parties. Madison wrote that such factions were inevitable in a nation where free speech was a guaranteed liberty. However, he felt forming a government 2
where representatives of the people made laws, as opposed to a direct democracy, would offset the influence of factions. Arguably, the seeds of political parties were sowed during the Constitutional ratification debates. The Federalists favored ratification of the Constitution as it had been written at the Constitutional Convention in 1987, which provided for a strong central national government. The Anti-Federalists felt that the Constitution infringed too much on states rights and did little to protect individual liberties. Their objections led to the creation and passage of the Bill of Rights. The Federalists agreement to add the Bill of Rights to the Constitution was necessary to gain enough support for ratification of the Constitution. In his Farewell Address, George Washington cautioned his countrymen: [The spirit of party] serves always to distract the public councils and enfeeble the public administration. It agitates the community with ill-founded jealousies and false alarms; kindles the animosity of one part against another; foments occasionally riot and insurrection.* --George Washington. Farewell Address, September 17, 1796. Just four years after Washington s warning, the presidential election of 1800 featured two diametrically opposed political parties: the Federalists campaigned for the re-election of John Adams and the Republicans for Thomas Jefferson. Although Jefferson and Adams did not campaign themselves it was considered undignified for candidates to do so their supporters carried on a vitriol campaign. However, after the election, Thomas Jefferson and others strongly suggested that since the election was over, political differences should be set aside and partisanship should disappear until the next election. This never really happened and when Andrew Jackson was elected the first president of the modern day Democratic party in 1828, political parties and their vigorous campaigns became a permanent fixture of presidential, congressional and state elections. Political campaigns provide an excellent point of discussion about the First Amendment right to free speech. What about all of the negative advertisements? Are they protected speech speech that is entitled to First Amendment protection? Yes, they are. The courts have been extremely reluctant to rule that political campaign materials, even when they contain some half-truths, amount to slander, libel or defamation none of which are protected free speech. Even when Congress got involved with trying to regulate political campaigns, (see more below), it was clear that the regulations were not about the content of the campaign materials but rather about money spent on campaigns and equal access to the airwaves. In February 2012, a federal court in Boston ruled, that although campaigning for public office sometimes has the feel of a contact sport, that unless a candidate and his team know that campaign materials are false or there is a reckless disregard for the truth, there is no grounds for a defamation suit by the opposition party. The court said that Defamation law does not require that combatants for public office act like war-time neutrals, treating everyone evenhandedly and always taking the high road. Quite the contrary. Provided that they do not act with actual malice, they can badmouth their 3
opponents, hammering them with unfair and one-sided attacks remember, speaking out on political issues, especially criticizing public officials and hopefuls for public office is a core freedom protected by the First Amendment. (The case is Schatz v. Republican State Leadership Committee, which was decided the United States Court of Appeals for the First Circuit. The parties were from Maine.) This language by the court should not surprise us. Throughout our nation s history, the courts have protected the right to free speech to the extent it does not endanger other people. The Nazi party had the First Amendment right to march in Skokie, Illinois and the protestor in Texas had the right burn a flag. Likewise, the government is going to steer clear of censoring campaign materials unless it is clearly slanderous or libelous. The one factor that the Framers probably did not anticipate with the rise of political parties was the immense amount of money that would be spent on political campaigns. Thus far, President Barack Obama has raised over $587 million dollars for his presidential race against Mitt Romney, who has raised over $524 million. Although Congress has attempted to control campaign finances, the courts have equated contributing money with free speech and have struck down many of these attempts (see below). The implication in this discussion of free speech and political campaigns is that it is more important than ever that students in civics and government classes learn how to evaluate political campaign materials and media resources. Neither the courts nor Congress are responsible for educating voters about candidates and issues, nor are they responsible for evaluating the accuracy and objectivity of political campaigns. Voting is one of the privileges of citizenship. Being an informed voter is one of the responsibilities of citizenship. Congress and Political Campaigns As previously noted, there is no mention of political parties anywhere in the Constitution and nothing about how to run elections or regulate political campaigns. However, Congress has passed legislation involving elections and, through the federal bureaucracy, has exercised some controls: 1. Legislation limiting campaign contributions. Early legislation prohibited corporations (1907 the Tillman Act) and labor unions (1947 Taft-Hartley Act) from making political contributions. Citizens United v. Federal Election Commission, 558 U.S. 50 (2010) overruled these laws to some extent. Labor unions and corporations still cannot make direct contributions to federal candidates but they can seek to persuade the voting public through other means. (See further discussion of Citizens United below.) The Federal Election Campaign Act (FECA) of 1972 required candidates to disclose sources of campaign contributions and campaign expenditures. In 1974, Congress amended the law and created statutory limits on contributions and created the Federal Election Commission (FEC). This law limited individuals to 4
making a $1,000 donation to a candidate and it limited political action committees (PACs) to $5,000. These kinds of donations are called hard money. The Bipartisan Campaign Reform Act (BCRA) often called the McCain- Feingold for its two senate sponsors was passed in 2002. This bill revised some of the limits set by the 1974 law. (To see these limits to the FEC website at www.fec.gov/pages/brochures/contriblimits.) The most controversial part of the bill prohibited soft money contributions. Soft money refers to funds spent by independent organizations that do not specifically advocate the election or defeat of candidates and funds which are not contributed directly to candidate campaigns. The first impact of BCRA was seen in the 2004 elections when all of the campaign ads paid for by a candidate ended with the words, I am (name of the candidate) and I approve this message. Note: Missouri is one of four states that does NOT have campaign contribution limits. 2. Federal agencies created by Congress that have impacted elections The Federal Election Commission (FEC) was created by Congress in 1975 to regulate campaign finance legislation that was passed by Congress. Its duties are to disclose campaign finance information, to enforce the provisions of the law such as the limits and prohibitions on contributions, and to oversee the public funding of Presidential elections. The Federal Communications Commission (FCC), which regulates broadcasters, would appear to have no reason to be involved with political campaigns but two of its policies certainly have had an impact: a. The FCC implemented the Fairness Doctrine in 1949. This policy required radio and television stations, which are licensed by the FCC, to present contrasting views on controversial issues of public importance and to do so in a manner that was honest, equitable and balanced. Note: The Fairness Doctrine was about issues, not political candidates. The purpose of the policy was to make sure that viewers and listeners had access to diverse viewpoints. The Fairness Doctrine was upheld by the Supreme of Court of the United States in Red Lion Broadcasting Co. v. Federal Communications Commission, 395 U.S. 367 (1969), because the scarcity of media available limited access to the airwaves. The FCC decided to eliminate the doctrine in 1987 and removed the doctrine s implementing language from its regulations in 2011. b. The Equal Time or Equal Access Rule is still in effect and provides that all broadcasting stations must provide an equivalent opportunity to any and all major political candidates who request it and they must offer political candidates ad time at the rate charged to the station s 5
most favored advertisers. (This applies only to candidates running for a federal office.) There are four exceptions to the rule: bona fide news interviews, scheduled newscasts, documentary or an on-the spot news event. Political debates are considered news events. Some of the controversies that have arisen have been whether someone is a major candidate and how to handle equal access when the candidate is a former actor (Ronal Reagan, Arnold Schwarzenegger, Fred Thompson). For example, would a station have to offer equal time to a candidate who opposed Fred Thompson every time the station aired a rerun of those episodes of Law and Order where Thompson was the District Attorney? Fred Thompson never became a major candidate so the issue remains unresolved. Important Court Cases Several court cases have already been mentioned. Some other cases that students might want to look at and consider are: 1. Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974). This case is interesting because the court makes a clear distinction between print media and broadcast media. The Court overturned a Florida Law that required newspapers to follow the equivalent of the Fairness Doctrine. The Court opined that newspapers cannot be forced to address controversial issues and that any law that interfered with the editorial decisions of a newspaper violated the First Amendment Right of the Freedom of the Press. (See the Red Lion case above that held broadcast media to Fairness Doctrine standard.) 2. Buckley v. Valeo, 424 U.S. 1 (1976). The Court upheld limits on campaign contributions, but ruled that spending money to influence elections is a form of constitutionally protected free speech, and struck down portions of the 1974 election campaign law. The court also ruled that candidates can give unlimited amounts of money to their own campaigns. 3. Citizens United v. Federal Election Commission, 558 U.S. 50 (2010). This case is complicated and a great deal has been written about it. However, so much of what has been written about it is editorial in nature. Some basic ideas to take from this case are: The Court reiterated its position in Buckley v. Valeo that giving money to political campaigns is a form of protected speech. The ruling does mean that corporations and unions can spend unlimited amounts on ads, videos and other means that are meant to help or hurt a candidate; the ruling, however, did not change the rules governing contributions made directly to candidates. It is still too early to predict the outcome of this case on the 2012 elections, but already political operatives have been able to raise record-breaking 6
money. Some of these groups are American Crossroads (Republican) and Priorities USA (Democrat). Some possible resources to use with students are: www.scotusblog.com/case-files/cases/citizens-united-v-federal-electioncommission/ billofrightsinstitute.org/resources/educator-resources/lessonsplans/landmark-cases-and-the-constitution/landmark-supreme-court-casescitizens-united-v-fec-2010/ www.cspanclassroom.org/video/1212/superpacs+and+money+in+politics.aspx DISCUSSION QUESTIONS FOR STUDENTS AND SUGGESTIONS FOR FURTHER STUDY AND ENRICHMENT Regarding political parties 1. How many political parties have nominated a presidential candidate for the 2012 election? Who are the candidates for each party? How many parties have nominated a gubernatorial candidate for Missouri s 2012 election? Who are they and who are their candidates? Does the existence of these other parties disprove the allegation that we are a two-party nation? Why or why not? 2. What purpose (s) do political parties serve? Do you think they are more helpful or harmful to our system of government? Why? 3. James Madison defined factions in The Federalist Papers #10: By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community. Some constitutional scholars argue that political parties and factions are synonyms while other scholars opine that they are not. Based on Madison s definition of factions, what do you think? How did Madison think that factions could be controlled by our system of government as opposed to a democracy? (Madison s argument is laid out in The Federalist Papers #10.) 4. With over 200 years of history to reflect upon, do you think George Washington was right about political parties? Why or why not? 7
5. Many countries have multiple parties. Why do you think the United States has basically had, for most of its history, a two-party system? 6. Political campaigns have always had certain negative qualities. Go to www.presidentsusa.net/campaignslogans for a list of campaign slogans and discuss what possible meanings they might have and whether they constitute a positive or negative message or image. 7. Define slander, libel and defamation. When do you think campaign ads might fall within these areas of unprotected speech speech not protected by the First Amendment? Enrichment activities: Look at the arguments of both the Federalists and Anti-Federalists in the Constitution s ratification debates. Would you consider these two opposing groups factions or political parties? Do the political philosophies of either of these two opposing groups carry over into either of the two major parties of 2012? If so, how? If you were to be a delegate to a Constitutional Convention in 2015, would you include anything about political parties in a new constitution? Why or why not? Regarding congressional controls on political campaigns 1. What is the Federal Elections Commission? When did it come into existence? Do you think the Watergate scandal was why it was created? Why or why not? 2. What is the Federal Communications Commission? When did it come into existence and what is its purpose? How did it get involved with political campaigns? 3. What was the Fairness Doctrine? Do you think this was good government policy? Why or why not? Why was it abolished? Would you favor reinstating it? 4. What is the Equal Time or Equal Access Doctrine? Do you think this is a good government policy? Why or why not? Enrichment activities: Why do you think that the Federal Communications Commission got involved with political campaigning and the discussion of controversial issues? Do you think this is something the government should be involved in? Why or why not? Why do you think the Fairness Doctrine is no longer in effect? ( The scarcity rationale for its existence is a big clue and should lead to a discussion of the proliferation of information sources in a digital age.) 8
An excellent discussion for Constitution Day could center on whether there is anything in the Constitution that would allow for Congress to control the airwaves (FCC) and the elections process (FEC). Regarding campaign monies 1. Do you agree with the Supreme Court that giving money to a political candidate, political action committee (PAC) or for a campaign on an issue on the ballot constitutes free speech? Why or why not? 2. Senator John McCain wrote in his 2002 memoir Worth the Fighting For the following: By the time I became a leading advocate of campaign finance reform, I had come to appreciate that the public's suspicions were not always mistaken. Money does buy access in Washington, and access increases influence that often results in benefiting the few at the expense of the many. What do you think Senator McCain meant? 3. What is the difference between special interest groups, labor unions and PACs? How do all of them influence elections? 4. Find out the names of some PACs. What is their purpose? What do they advocate for? 5. Do you think corporations and labor unions should be able to contribute directly to a political candidate or political party like special interest groups and PACs are allowed to do? Why or why not? 6. Most of the people opposed to the Citizens United decision focus on the effect of unlimited corporate contributions to political campaigns and rarely, if ever, mention that labor unions may also spend unlimited money to indirectly support a candidate? Why do you think this is so? Enrichment and extension: One of the most complicated aspects of campaign spending laws is the disclosure requirements. For example, does a PAC have to disclose the name of everyone who has contributed to it? Does a group like Citizens United have to disclose how they used certain monies i.e. was a particular contributor s money used to make a particular video? Why is disclosure so important? Regarding the responsibility of voters to be informed As stated earlier in this study guide, being an informed voter is one of the responsibilities of living in this country. Some possible discussion questions about being an informed reporter are: 1. What responsibilities do political candidates, their campaign teams and their political parties have for presenting honest and fair information in their campaign ads and materials? 9
2. What must a voter do to be informed? How can a voter evaluate media resources for accurate information on candidates and issues? 3. What makes it difficult to be an informed voter? ALIGNMENT WITH MISSOURI S SOCIAL STUDIES STANDARDS Constitution Day Show Me Performance Course level expectations/ Objectives Knowledge/Content Process depth of knowledge 1-A 2 Identify and explain First Amendment free speech issues that arise during political campaigns. Identify and explain key court cases that have addressed free speech issues and political campaigns. Discuss how contributing money to political campaigns has been equated with the right to free speech. Distinguish the difference between protected speech and unprotected speech such as libel and slander. Social Studies 1 Principles expressed in the documents shaping democracy in the U.S.. Social Studies 3 Principles and processes of governance systems. Social Studies 1 Principles expressed in the documents shaping democracy in the U.S. Social Studies 1 Principles expressed in the documents shaping democracy in the U.S. 1.2 Conduct research to answer questions and evaluate information and ideas. 1.2 Conduct research to answer questions and evaluate information and ideas. 1.2 Conduct research to answer questions and evaluate information and ideas. 3.6 Examine problems and proposed solutions from multiple perspectives. 2-C 2 1-A/7-E 2 1-A/B 2 Discuss the role that Congress has played in regulating political campaigns. Discuss the role that political candidates have in making sure their campaign speeches and media ads reflect a responsible use of free speech. Social Studies 3 Principles and processes of governance systems Social Studies 3 Principles and processes of governance systems 1.2 Conduct research to answer questions and evaluate information and ideas. 4.2 Understand and apply the rights and responsibilities of citizenship. 2-C 2 1-A/7-E 3 Discuss what role a responsible voter should take in evaluating political speeches and advertisements. Social Studies 3 Principles and processes of governance systems. 4.2 Understand and apply the rights and responsibilities of citizenship. 2-C 3 10