(2000 Campaign Report)
FEC Solicitation Letter
This message was emailed to LibertyWire subscribers on March 12, 2000.
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A very important message from Harry Browne
We have come across what may be an exceptional opportunity to strike a blow against oppressive government -- while at the same time generating major national press coverage for our campaign.
By deliberately violating the campaign laws -- the contribution limits and reporting requirements imposed by the Federal Election Commission (FEC).
There are three major benefits this project could produce for Libertarians in the short and long term:
1. An act of civil disobedience against these repressive laws will truly be a "man bites dog" story. Announcing our intention to willfully violate these regulations might generate more national media coverage than anything the LP has ever done.
2. This action can reverse the debate about campaign finance reform. Currently, everyone is focused on possible new campaign restrictions. But if we challenge the very idea of such laws, we could turn the debate upside down. From then on, every discussion of campaign finance is likely to mention our defiance of the existing laws. And every counter-move by the FEC against us should generate still more publicity -- publicity that should be worth every penny we pay in legal bills, plus any fines if we lose our case.
3. Campaign finance laws are more harmful to us than even the ballot-access requirements. They limit the money we can legally raise to counter the enormous free publicity the Democrats and Republicans receive -- not to mention the tens of millions of dollars they confiscate from taxpayers to run their presidential campaigns. If we win the case, the end of contribution limits would go a long way to level the playing field.
*** Why now?
We considered launching this challenge in 1996, but the time didn't seem ripe. Now, however, we're much larger, much stronger, and much better able to handle such a case. And it is during the campaign that we especially want the publicity that will flow from the case.
There has to be an actual violation to trigger a judicial review of the law. And so we must disobey the law, have the FEC charge the campaign with a crime, and then take the case all the way to the Supreme Court.
*** But haven't these laws been challenged before?
Some of them, but only on narrow grounds. Usually, the Supreme Court limits any ruling to the case at hand, and no case has actually focused on the overall concept of the government regulating what individuals can do in a political campaign. But the Court has hinted in opinions that it would be willing to review the entire concept behind campaign finance laws. And now along comes a Libertarian candidate who wants to challenge everything -- contribution limits, spending limits, reporting, everything! This is the perfect opportunity for the Court to rule on the central issue: Do politicians have the right to make rules that restrict the ability of their political opponents to compete?
*** Why challenge the reporting of contributions?
Isn't it universally acknowledged that secrecy is bad and "full disclosure" is a great virtue? Originally we intended only to challenge the $1,000 contribution limit. We thought that was the most vulnerable part of the system -- especially since the $1,000 limit has never been adjusted for inflation.
But our attorneys tell us that such a narrow challenge would actually weaken our case. The constitutional reasoning that forbids having a contribution limit applies equally to compulsory reporting, and it would be inconsistent to challenge one without the other. And, as I'll explain in a moment, there is a strong case to be made against compulsory reporting.
*** What are our arguments?
The case we finally present will evolve from the research of our attorneys. But certain arguments seem obvious. . . .
1. Freedom of the press
News organizations are free to provide lavish press coverage of the major parties. And they can raise, invest, and spend as much money as they want on such coverage -- exempt from any limit by the constitutional guarantee of "freedom of the press."
A smaller, less-known political party can offset this kind of coverage and get the public's attention only by spending tens of millions of dollars on advertising. But the contribution limit prevents us from raising that kind of money.
We will argue that political campaigns are also "presses" -- opportunities for people to express their opinions, just as newspapers and broadcast networks do -- and that campaigns should be equally free to raise money to express ideas.
2. Freedom of assembly
Citizens have a right to join together with candidates and campaign organizations to express political opinions, and any financial restriction on their ability to do so is effectively a restriction on their right to assemble.
3. The right to privacy
The Supreme Court has identified what it considers to be an implied right to privacy in the Constitution. In fact, the right isn't implied at all; it's real. The 9th Amendment makes it very clear that you retain any right not specifically taken away by the Constitution.
The Supreme Court has ignored the 9th Amendment in the past several decades, but we can reestablish it with this case. If we win, it would reinforce all sorts of rights that the Constitution says you never gave up -- such as the right to privacy or the right to defend yourself without arguing over the definition of a "militia."
The right to privacy can be inferred as well from the secret ballot. If a voter can support a candidate with a secret vote, why can't he make a secret contribution?
There is good reason to allow secret donations. Public disclosure gives winning candidates the power to exact retribution on supporters of losing campaigns. That this power is real is evident by the vast number of people who contribute to both major parties. Many other people avoid contributing altogether rather than allow their names to appear on an FEC report. Lastly, why should politicians decide on what basis you will judge candidates? If you think reporting is necessary, you can simply refuse to support any candidate who won't report contributions -- just as you can refrain from buying a product from a company that doesn't provide enough information to satisfy you. And if you think reporting isn't necessary, why should your campaign contribution be eaten up by the costs of filing endless forms with the government?
4. Equal protection under the law
The law permits a wealthy candidate to finance his own campaign without any financial limit. But shouldn't groups of citizens be permitted to combine their resources to equal the amounts a wealthy candidate can spend? And shouldn't a wealthy individual be permitted to finance the campaign of someone else to speak for him?
5. Due process
Campaign finance violations aren't judged by courts or juries, but by a star-chamber of political appointees -- all of whom just happen to be Democrats and Republicans. Political parties shouldn't have this kind of power over their competitors.
Clearly, we have a very strong case. But the government isn't going to roll over and play dead when we challenge it.
Whenever the government violates any part of the Bill of Rights, it claims to have a "compelling interest" that overrides the interests of individuals. Of course, nothing in the Constitution allows the Bill of Rights to be discarded for the convenience of the government. Any shortcoming in the Constitution is supposed to be remedied through the amendment process.
But that hasn't stopped the Executive branch, Congress, or the Supreme Court from treating the "compelling interest" notion with respect. And we will have to make strong arguments that there is no compelling interest for the government to trash the Constitution in this case.
*** Government doesn't work
One such argument is that the campaign finance laws don't work. Strangely, the best proof of that is the laws themselves. Every campaign reform is passed in response to apparent abuses (such as lavish use of soft money and PACs) that were generated by previous campaign finance laws. If the laws achieved their purpose, there wouldn't be perpetual agonizing over all the abuses.
Today's concerted push to add yet more campaign restrictions makes it obvious that the existing regulations don't achieve the results intended. So where is the compelling governmental interest in preserving or extending them?
Of course, you and I know that the answer to the problems of lobbyists, special interests, and the potential buying of legislators is to strictly enforce the 10th Amendment. That would restrict the politicians to just what's authorized in the Constitution and leave nothing for the special interests to fight over. But don't hold your breath waiting for the Supreme Court to be impressed by that idea.
*** We have a chance to win the case
Instead, if we focus on the constitutional arguments I've listed, we believe we have a chance to win this case and accelerate the LP's movement toward major-party status.
But even if we don't win, the case will bring our campaign to the attention of the American people and the press.
*** What are the risks?
There appears to be no risk of criminal prosecution from defying either the contribution limit or the reporting rules. But there could be large fines if we lose our challenge. The two relevant considerations are: (1) whether those fines would be so large that we couldn't pay them, and (2) whether a final verdict would be rendered before Election Day, interfering with the campaign.
However, both questions point up the public relations advantage the case offers. We will work to ensure that any large fines or interference with our campaign probably will be seen by the press and the public as a case of a small political campaign being squashed by the big parties.
We are simply trying to exercise our 1st Amendment rights and correct horrible inequities in the system. And since we have no special-interest favors to peddle, we will be seen as a Simon-pure party fighting for equality. The David Broders and Rush Limbaughs of the media already testify to our purity. So the Justice Department will create a public relations quagmire for themselves if they try to bankrupt us or otherwise interfere with the campaign.
We will be David opposing Goliath. And whatever people may think about campaign finance reform, it seems likely that public opinion will be on our side in this case.
In addition, it's highly unlikely that the case will be settled before Election Day. More likely, it could be years before there's a final resolution.
Even so, we must tread carefully. We must have realistic estimates of the likely penalties if we should lose, we must determine whether we could pay those penalties, and we must judge whether that cost and the associated legal bills are outweighed by the publicity gained.
Fortunately, we're discussing this with a legal firm that has extensive experience in constitutional cases of this kind. And we want to commission it to do the research to determine how much chance we have to win the case and precisely what the risks are.
Until that research is completed and we've decided whether to proceed further, we won't file any reports with the FEC. To do so would indicate our acceptance of their jurisdiction and weaken our case. If we decide not to proceed, we'll file then and pay the small penalties we'll have incurred for tardy reporting.
In the meantime, we'll continue to keep records that comply with all the regulations -- so we can actually file and refund any over-limit contributions if we lose the case.
*** Are there any risks to campaign contributors?
No matter what happens in the case, there can be no legal liability for anyone whose contribution is within the $1,000 limit.
*** Who will participate in our campaign of civil disobedience?
The job of defying the government falls mainly to Campaign Manager Perry Willis and to me.
However, if the attorneys' research prompts us to proceed, we will need donors who are willing to deliberately exceed the $1,000 campaign contribution limit. If many people do so, it will establish a broad base for the fight against the limit. The more people involved, the better for our case and the more publicity we can generate.
If you contribute an amount above the $1,000 limit and we lose the case, you might incur a small fine.
If you would like to be a Libertarian hero by violating the contribution limit, let us know and we'll get back to you when we have a better idea of what your risk actually will be. Please do not send an over-limit donation now.
You can indicate your willingness to participate by checking the yellow box in the online contribution form on our web site, or by checking the appropriate box on the form below if you are mailing a check.
Incidentally, our case for overturning the law will benefit from the fact that the over-limit contributors have no hope of winning special-interest favors from the government, even if we were to win the election.
*** How much will our legal challenge cost and how will we pay for it?
If we go ahead with the challenge, the eventual cost of the case could run several hundreds of thousands of dollars. However, we believe we can attract political and financial support from people of many political stripes who oppose the campaign laws. We may set up a separate legal defense fund, and there may be many wealthy people willing to contribute to it.
But before we get to that point, our lawyers need to research the case and evaluate the risks. That way we can make an informed decision about whether to proceed (as we expect to) or not to proceed (if penalties or dangers are uncovered that we haven't been aware of).
It will take $25,000 for the attorneys to do the research. Funding for it will have to come from people like you -- people who can contribute within the legal limits without any risk at all.
*** Your help is needed.
We need to raise the $25,000 right away. If it turns out the challenge doesn't make sense, we need to know that quickly, so we can file and limit the late penalties. If it turns out we can proceed, we want to begin our defiance soon enough to reap the press coverage and start raising over-limit contributions.
Your immediate contribution of $1,000, $500, $250, $100, $50, $25, or even $10 will help us get this effort underway. It is perfectly legal as long as the total of all your contributions doesn't exceed $1,000. (Don't forget that your spouse also can donate $1,000.)
However this turns out, we plan to create a plaque showing the names of all who give $100 or more to this effort. We will present the plaque to the Libertarian National Committee at the end of the campaign, to be displayed at party headquarters.
This is your chance to be a part of history. I hope we can count on your support.
You can make your contribution online at the following web address: https://www.webcommanders.com/donate/fec-fund.htm or through the mail by printing out the form appended below and mailing it in your own envelope.
Also, if you would be so kind, please send an email message about your contribution to my Campaign Manager, Perry Willis. Simply mailto:FEC-Fund@HarryBrowne2000.org. All you have to do is enter the dollar amount of your contribution in your message's subject line. Perry wants to closely monitor how much interest there is in this project.
With best wishes,
P.S.-- Imagine the articles in newspapers around America: "Libertarian Presidential Candidate Harry Browne Defies Campaign Finance Laws." Whenever I'm asked why I'm doing this, I'll say that it's because the campaign laws prevent me from letting Americans know they have the choice to vote to repeal the income tax entirely, free themselves from the Social Security tax, and end the insane War on Drugs.
You often hear the expression "This is publicity that money can't buy." But in fact it does take money to get good publicity. I hope you'll help us make it possible.
Please visit https://www.webcommanders.com/donate/fec-fund.htm right now, or use the form below to send your very best contribution today. And thanks again.
- - - - - - DONOR FORM - PLEASE PRINT & CUT HERE - - - - - - - - - - - -
YES, Harry! I want to help you fight the campaign finance laws!
[ ] ALSO, I might want to be a hero! Please let me know what potential FEC fines I might incur by violating federal contribution limits. I may decide to participate in your campaign of civil disobedience.
I understand that if I contribute $100 or more to this project my name will be added to a special plaque to be presented to the Libertarian National Committee at the end of the campaign for permanent display in national party headquarters.
Here's my contribution of:
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Federal law requires political committees to report the name, mailing address, and occupation and name of employer for each individual whose contributions aggregate in excess of $200 in a calendar year. Political contributions are NOT tax-deductIble and corporate donations are NOT permitted. According to current FEC regulations, individuals may contribute up to $1,000 prior to a candidate's nomination, and may contribute an additional $1,000 thereafter.
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