By Dan Kennedy • The press, politics, technology, culture and other passions

Outlawing political hijinks

Because campaign-finance regulations are, by definition, an abridgment of free speech, we should not be surprised that the sophomoric hijinks of an anti-Deval Patrick activist who goes by the name “Stop Killer Coke” may well be deemed illegal.

To backtrack, for those who have not been following this closely: On Aug. 7, the Globe’s Frank Phillips wrote:

The New York-based Campaign to Stop Killer Coke, a group of labor activists that seeks to expose Coke’s alleged misdeeds around the world, is launching a campaign to portray Patrick as a greedy corporate executive who has become a multimillionaire defending the two companies. [Texaco was identified as the second company.]

Then, in a nifty piece of investigative reporting, the Web site Blue Mass Group, which follows Democratic politics in Massachusetts, discovered that Stop Killer Coke isn’t really an organization. Rather, it’s some guy named Ray Rogers who’s based in New York and who owns a private consulting business. (The direct link to BMG’s exposé is here. Also, thanks to the miracle of tags, you can read all of BMG’s Killer Coke coverage here.)

Next up: a classic column by the Globe’s Joan Vennochi last Saturday, in which she lovingly reproduced some internal e-mails by David Guarino, communications director for Tom Reilly’s gubernatorial campaign. Guarino discussed plans to hook Rogers up with local media types in the hopes of scoring some points against Patrick. Good stuff.

Unfortunately, we live in a time when the exposure of slightly sleazy political shenanigans is no longer its own punishment. Rather, it must be subjected to hearings, fines and stern letters of reprimand. So, naturally, the state’s Office of Campaign and Political Finance (OCPF) is looking into this to see whether Reilly’s campaign or that of the third Democratic candidate, Chris Gabrieli, might have violated any regulations regarding financial reporting and/or improper coordination. The Herald’s Kimberly Atkins reported on this development yesterday, and the Globe’s Phillips has a more detailed story today.

The complaint to the OCPF was filed by five pro-Patrick union leaders last week, with Blue Mass Group cheering them on. (I would link to Adam Reilly’s report, but the Phoenix’s Web site is down at the moment.) This is a perfect example of people who suppress freedom of speech in the name of doing the right thing.

And you know what? The case against Rogers and/or the Reilly and Gabrieli campaigns is probably pretty strong. The larger question is: Why do these regulations exist? What public purpose is achieved by curtailing political speech in any way? And what exactly is Rogers supposed to be doing wrong?

Ray Rogers is the modern equivalent of the lonely pamphleteer, the very essence of who the First Amendment is supposed to protect. It shouldn’t matter whether he’s right or wrong, where he gets his money from or which campaign or campaigns he’s talking to. Let him get his message out, and let Deval Patrick get his message out.

In fact, that’s already happened. What’s the problem?

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  1. Anonymous

    Because the law can’t distinguish between a campaign asking a lonely pamphleteer for help or calling Rupert Murdoch, or the AFL-CIO. The rules protect smaller campaigns by leveling the playing field and limiting what the big guys can do behind the scenes. Without them there’d be even greater influence by the wealthy on political discourse. Killer Coke can speak all it wants to, it just can’t coordinate with political campaigns to influence an election.

  2. Dan Kennedy

    In other words, the First Amendment is nice, but it’s too risky to try it in a democracy!

  3. Peter Porcupine

    Dan – AS LONG AS THE REGULATIONS EXIST shouldn’t the people being regulated abide by them?Do you want amateur electricians, beauty operators and uninspected restaurants, too? (Yes, this is hyperbole).If a candidate cannot abide by the existing laws, and chooses to break them rather than change them – what does that say about their ability to govern in an impartial and fair manner, to write or administer sane and effective legislation, or deal with the public and electorate in an honest manner?Personally, I think I should be allowed to exercise my First Amendment Rights within 100 feet of a polling place on election day, as others think they should be able to exercise theirs on the doorsteps of abortion clinics – but the law says no.What part of LEGAL do you not understand?

  4. Dan Kennedy

    Peter — I’m sorry, but I find your comment to be very odd. I wrote that the case against Ray Rogers, the Reilly campaign and possibly the Gabrieli campaign is probably pretty strong, but that I disagree with the laws and regulations that are being violated and find them inconsistent with the First Amendment. Am I not supposed to say that? Is the OCPF going to come after me now, too?

  5. Bill Weye

    I would not consider Ray Rogers “a lonely pamphleteer”. That seems to be making light of the work he does. Please, do a little bit of looking into who this guy is: problem is Reilly trying to exploit (highjack) a legitimate, progressive issue for his campaign.On the other hand, Patrick should be made to explain some of the career choices he’s made, which a lot of press coverage has been light on.

  6. Anonymous

    (First poster again) Like other freedoms, the first amendment is balanced against other interests in the laws all the time. You can only own so many radio stations per market, or you can’t put up a billboard anywhere you want on your property. As long as we have campaign finance laws to limit how much a person can give a campaign, we have restrictions like this so Candidate X can’t evade the rules by getting his friends or cronies to spend money on his behalf. Rogers isn’t barred from speaking, he’s barred from coordinating his message of “Don’t vote for Patrick” with those running against Patrick. If you get rid of those rules, there’s nothing to keep Fox News from running Republican commercials for free – okay, bad example.

  7. Dan Kennedy

    The reason I’m a First Amendment absolutist (or close to it, anyway) is borne out by these comments. It is impossible to defend these sorts of regulations without finding yourself in a quandary — “Well, I’m for free speech, but …” Sorry, but when you say “but,” you’re not for free speech.And by the way, I want to assure Peter Porcupine of my consistency. In 1999, I gave a Phoenix Muzzle Award to two state legislators, Susan Fargo and Paul Demakis, for advocating a no-protest buffer zone around abortion clinics. Have a look. And welcome — I hope you’ll stick around.

  8. Peter Porcupine

    If you read my history, you’ll see I WAS a ‘lonely pamphleteer’ – until a political crony of Jefferson had me jailed for writing true things about him!I do not like or approve of the laws either – but feel compelled to obey them as long as they are in place.To me, a spending cap of a median of all spending in the last three races should be set for each race – if for no other reason than to take into account a newspaper ad costs more in Boston than North Adams. I would eliminate all restriction upon donation, be it amount limits, businesses, etc., but I WOULD require WEEKLY OCPF filings, easily accomplished since they are now mandated to be on-line. In short, utter transparency, up to the spending limit. It would allow school teachers to run against millionaires, it would eliminate the incentive for PAC’s and ‘advocacy’ groups by allowing those advocates to chip in with actual money, and best of all – NO TAX FUNDED ELECTION SPENDING!But, that’s just me. And until that day, laws were NOT made to be broken. By your logic, Dan, I can think of a couple I think I shouldn’t have to obey either, mostly involving Rt. 128 and State Police cruisers with flashing lights…

  9. RichC

    Well, Dan, it looks like there’s something I can finally agree with you on. Campaign-finance regulations are repulsive to the first amendment.If there are going to be regulations at all, there is only one proper way to regulate campaign contributions — have no rules about amounts, who can make contributions, and the content of the ads, etc. the contributions are spent on, but mandate instant, prominent disclosure of who gave the money. Coupled with this would essentially be the abolition of PACs as a way to hide the source of contributions (I’d allow PACs to continue to exist as contribution aggregators, but the names/amounts of all contributors/contributions would be as disclosed as they would be if the contribution was made directly to the candidate).The contributor names and contribution amounts would have to be made instantly available on campaign websites and would also be forwarded to the FEC where they would also be available online, in hardcopy by request, and would be public records.I don’t buy the alleged need for “levelling of the playing field” that the pro-censorship crowd likes to pretend exists.I don’t even particularly care if some candidate is being bought off by the AFL-CIO, NEA, AFT, NAGE, etc., as long as it is trivially easy for me to find out that fact.And if people can’t be bothered to find out who there politician is in the bag for, then they deserve the government they get. And if most people are like that, then all “levelling”-based censorship the political speech censorts love to advocate isn’t going to make things any better anyway.

  10. Dan Kennedy

    Rich — We are 99.9 percent in agreement. Maybe 100 percent — let me think about it!Peter — Why do you keep saying that I advocate breaking the law? I don’t think I’m saying that. I do wish someone would challenge the law.

  11. Anonymous

    Peter isn’t worth replying to. He’s a complete net kook. He mostly haunts gay rights forums pretending to have first hand knowledge the founding fathers would have opposed gay marriage.There are a couple of others playing similar games (pretending to be historical figures). I blame Reagan for clearing out the mental hospitals.

  12. Chris

    “Well, I’m for free speech, but …” Sorry, but when you say “but,” you’re not for free speech.How about, “I’m for free speech, but I’m against yelling fire in a crowded theater?”Or, in other words, in what world does your comment above make any sense?

  13. Dan Kennedy

    Chris — In the world of political speech, which is the world we’re talking about. Sheesh. Oh, and by the way, great analogy. Holmes was comparing opposition to the military draft to shouting “fire” in a crowded theater. He later came to regret that comparison.

  14. tony schinella

    Essentially what Dan is saying is that the law is lame and a violation of the First Amendment. And he is kinda correct. There shouldn’t be any problem with a campaign assisting a provocateur like Killer Coke to get media contacts. What is the big deal? It isn’t like money was exchange or anything; they just seemed to be helping him get some media. In addition, Patrick should have to answer the hard questions. I’m sick of all this “great black hope” stuff around him. Lots of folks like the guy but I have to wonder. I know Gabrieli personally and he is a good man. As well, he has actually created jobs in the state. I also wonder about who leaked Guarino’s stuff to Joan. That was a no brainer. It must be someone inside the campaign who doesn’t like him, wants to get rid of him, and knew the law. I can’t imagine someone who wants to assist Reilly letting this get out in the media. How stupid is that?!

  15. Ardee

    Dan, I would agree with you completely if I had the means and the temperament to purchase influence. I could then appeal to ones desire to convert political service into profit and have a government well positioned to serve my interests.I would also agree with you if I believed people of means are of superior intellect and completely benevolent. I could agree if maybe I believed those who seek public office are committed to best serving the public interest.It’s bad enough that freedom of the press is limited to those who own the press, when it comes to choosing our government, our freedom of speech shouldn’t be apportioned by dollar volume.

  16. whispers

    Hi Dan,Up until the mid-1970s, nobody had any legal problem distinguishing between “speech” and “campaign contributions”. Then the Supreme Court magically decided, in Buckley v. Valeo, that giving money to a politician was equal to speech. This “activist” ruling tends to be applauded by all sorts of conservatives who are strict constructionists on most other legal issues. I would agree with Justice Stevens’ recent dissent in the Vermont campaign finance case. Giving money to a politician is not speech. It doesn’t look like speech, it doesn’t smell like speech, it isn’t speech. It’s commerce. It’s a monetary transaction. Please stop pretending to be a champion of the First Amendment when really what you are is a champion of one interpretation of the First Amendment, one that is not held in unanimity on the Supreme Court and which flies in the face of a plain reading of the document.

  17. Dan Kennedy

    Whispers — What a misreading of history! Until the mid-1970s, no one ever thought that this was even an issue. Then, after Watergate, Congress passed campaign-finance “reform” laws in what has proved to be a disastrously unsuccessful attempt to stop future Nixons. That’s why the Supreme Court acted in Buckley v. Valeo.If campaign-finance regulations had been on the books in 1967 and ’68, Eugene McCarthy never would have been able to run for president. McCarthy’s campaign was bankrolled by a handful of anti-war millionaires, and he ended up toppling a president. It simply couldn’t happen today.

  18. Rick in Duxbury

    1. “toppled”? So without getting clean for Gene there would have been no Watergate? Not sure I follow.2. At least as the Patrick spokeman, Chacon gets to continue the mindset he brought to his previous position.MA politics runs the gamut “from A to B…”

  19. whispers

    Uh, OK Dan. You accuse me of a “misreading of history”, but I’m citing Justice John Paul Stevens. Suddenly, when I attack your claim that you’re the pure originalist basing your argument on the Constitution, you abandon that line of logic completely, resorting to a “historical context” argument. You can’t have it both ways. Either you use the “historical context” argument as the basis for saying the campaign contributions = speech, or you use the “strict construction” argument. I had thought the purpose of your post was to make fun of people who favor campaign finance reform because of your impeccable legal foundation. But apparently it’s because of the ’68 election. Or because of Nixon. I’ve lost track.I still say “campaign contributions” are not “speech”, and should not be protected by the First Amendment.

  20. Dan Kennedy

    Whispers — I never said I was a pure originalist. In fact, I suspect that many of the Framers would hold a more narrow view of freedom of the press than we do today. The Supreme Court greatly expanded free speech starting in the early part of the 20th century.I’m not a lawyer, and I never claimed to have an “impeccable legal foundation.” So come on, please. However, you need to explain this sentence: “Up until the mid-1970s, nobody had any legal problem distinguishing between ‘speech’ and ‘campaign contributions.'” Please cite an example in which the Supreme Court, before the mid-1970s, ever made any attempt to distinguish between “speech” and “campaign contributions.”

  21. David

    I’m coming a bit late to this discussion. But as to Dan’s wish that “someone” would “challenge” campaign finance regulations here or elsewhere, it’s been done, and it’s failed numerous times. The Supreme Court has made very clear that, at least for now, it’s sticking with Buckley v. Valeo, most recently in the Vermont case just a couple of months ago. So we might as well all suck it up and live with it. I’m not a fan either, but you play the cards you’re dealt.As for the Killer Coke situation, the big problem (IMHO, anyway) is that corporate money may have been used to fund the anti-Patrick campaign. There are very good reasons for keeping corporations far, far away from political speech – namely, corporations are not people. I have no problem with Ray Rogers saying whatever he wants as loudly as he wants. I do have a problem with Corporate Campaign, Inc., or any other corporation, doing so. Again, corporations aren’t people, so why should people care what they have to say? And as for the issue of coordinating with the Reilly campaign, those regulations are generally about transparency and disclosure, not about restricting speech (setting aside the dollar limit on contributions, which I don’t like any more than you do but which we’re stuck with). What’s wrong with that?

  22. Peter Porcupine

    Dan – the pre-1970 lack of cases wouldn’t have anything to do with the fact that it was LBJ and Sam Rayburn dispensing under the table cash from Brown & Root (now Halliburton), would it? Read Robert Caro for a more in-depth analysis.

  23. Dan Kennedy

    Peter — No, it wouldn’t. I’m familiar with Caro’s findings. The fact is that there were very few campaign-finance laws even on the books until the mid-1970s.

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