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Bernie’s Avengers

Situated at the corner of Fairfax and Wilshire in Los Angeles, the iconic Johnie’s Coffee Shop was where Mr. Pink plotted a diamond heist in Reservoir Dogs and where Walter offered to obtain The Dude a toe in The Big Lebowski. But it has never witnessed malfeasance like the villainy that has unfolded there over the last few weeks. Johnie’s has been converted into a hub of unregulated advocacy for Bernie Sanders’ presidential campaign.

Graffiti artists have decorated the landmark in murals. They put on an art show. A “media and production company” seems to have helped assemble the visuals. The grassroots group “Bernie’s Avengers”—what, precisely, are they avenging?—is using the space to coordinate the activity of other Sanders supporters in the L.A. area.

All this raises questions, such as: Was the paint for the murals reported as an in-kind contribution to Bernie 2016 and thus, in turn, disclosed to the Federal Election Commission? Is the family-owned coffee shop organized under the corporate form and, if so, did the Sanders campaign pay for the space?

The answers are unclear, but an organizer for Bernie’s Avengers supplies a clue: “We hope to get exposure for the Bernie Sanders campaign without having him spend his campaign money.”

Wait—what was that? Could it be? That sounds every bit like paid advocacy outside the apparatus of regulated campaign finance—complete with corporate expenditures too. In the world of campaign-finance reform, which is to say Sanders’ world, this is known as “dark money.”

Their candidate has denounced it. Invoking “the bloodstained battlefield of Gettysburg,” Sanders writes on his website that the decision in Citizens United “hinges on the absurd notion that money is speech, corporations are people, and giving huge piles of undisclosed cash to politicians in exchange for access and influence does not constitute corruption.”

Fair enough, the activities at Johnie’s likely do not entail “huge piles” of cash, but they are, presumably, undisclosed, at least within the official campaign finance system. Their stated purpose is to spend money outside the Sanders campaign. There is at least reason to suspect some of those spending the money are corporations.

This brings us to the central point, which is that there is nothing in the slightest wrong—indeed, plenty that is right—with what is happening at Johnie’s. It is a sign of republican health, and it is entirely protected by the First Amendment. Indeed, it is difficult to imagine an activity the First Amendment was more explicitly enacted to protect. There is no reason Bernie’s Avengers should have to report to Bernie headquarters and register as official agents of the campaign—subject to its reporting requirements, donation limits and other regulations—to express themselves politically.

The question, though, is what other than zeroes separates these activities from those of the Kochs. That is, if a group of Bernie supporters wants to express itself politically without registering with the FEC and filing detailed reports, why not the Kochs? It is true the Kochs do so on a wider scale, but just as the Fifth Amendment protects mansions as much as shacks, the First Amendment protects people who speak loudly along with those who speak in a softer voice.

The decidedly licit goings-on at Johnie’s are another instance of how this election has put the lie to the campaign-finance racket. Donald Trump has secured the Republican nomination and is deadlocked in general election polls while spending a fraction of the other candidates’ budgets; Jeb Bush, by contrast, burned through $130 million and barely broke into double digits. Hillary Clinton’s outside spending has dwarfed that of Bernie Sanders, who is taking her to the wire anyway. There is no way to correlate money with outcomes in this campaign.

But Johnie’s does supply a useful reminder of the First Amendment roots of what goes under the sinister moniker of “dark” or “outside” spending.

The graffiti artists at Johnie’s are simply expressing themselves politically. Compelling them therefore to disclose their names would violate the anonymity that is often central to their craft specifically and to political advocacy more generally. There is no particular public interest in knowing who they are, and there may well be a personal interest in preserving their anonymity. What these artists do is an act of civic spirit. They share a vision for their country and are willing to sacrifice their time and resources to attain it.

Yet all of this is true of the Kochs as well. Their advocacy is equally protected by the First Amendment. Their donors may have equally valid reasons for preserving their anonymity. And they, too, share a vision for their country and are sacrificing to realize it.

Yet what he would presumably protect for his activists, Sanders would deny to the Koch brothers. The difference is scale, not kind. The distinction, to be sure, is real. But the First Amendment does not ask whether advocacy emanates from Johnie’s or Koch headquarters, whether it is an arm of an organized campaign or an unaffiliated citizen, or whether its costs are measured in thousands or billions. It asks whether citizens have the right to speak. They do. Just ask Bernie’s Avengers. Perhaps, in the name of their own freedom, they ought to avenge the campaign-finance reformers’ assault on the First Amendment.

Reader Discussion

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on June 06, 2016 at 11:29:58 am

Greg:

Agreed -with some reservations:

"The difference is scale, not kind. The distinction, to be sure, is real."

1) There is certainly a distinct difference between the somewhat "Simpsons-esque" grafittized expression of political advocacy and the somewhat more refined communications arising out of Koch-like organizations.

2) Yet the difference may, in fact, be rather more than the relative artistic qualities associated with the various organizations. This becomes clear when we examine what else maybe, and quite often is involved, when this speech affiliates itself with, or in advocacy of, certain corporate interests.

3) For the record, I am in support of *unlimited* financial / in-kind contributions by INDIVIDUAL US CITIZENS. Clearly, this is a right guaranteed by the 1st Amendment. And with some hesitation, would even support such a guarantee for any civic organization comprised of US CITIZENS.

4) Yet there is another class of *person* that advocates of unlimited political speech also wish to include in this guarantee - the *corporate person.* and it is here, where the *distinction* becomes both real and somewhat insidious. I am not unaware of the value of granting a corporation the legal fiction of "personhood." It is ultimately, a protection for the property rights of all citizens. However, it does not necessarily follow that this fictionalized person ought to exercise an undue influence upon the electoral mechanics and outcomes of our republic. Yes, it is unclear whether there is a statistically significant correlation between campaign funding and electoral outcomes. It seems to me, at least, that to leave the analysis at this stage, is akin to posting a "Security monitor" (see recent commercials on TV) at the door while inside the barn the miscreant influence peddlers (lobbyists) are working their magic. This is where the true import of campaign contributions is to be found. Consider, the electoral campaign contributions a bet by a corporate person. If your candidate wins, he or she may be in a position to provide *constituent assistance.* If you lose, it may be on a par with a bad advertising choice. Winning, however, brings into play the true influence of your *speech.*
Who is more likely to be granted an audience with our august Representatives - our graffiti artists or our well tailored lobbyist? Who is more likely (and more capable) of helping to *draft* legislation, such legislation have the curious effect of benefiting the corporate person?

5) Almost all on this site decry crony capitalism - and properly so! One must ask, however, what are the mechanism by and through which this particular form of capitalism has been developed and is currently sustained. I would suggest that it is a foreseeable consequence of corporate political speech.

6) I do not wish to suggest that corporate persons may not engage in their right to "petition the Government for a redress of Grievances' - only that there be no exchange of monies involved in the "redressing", either pre- or post-election. Clearly, the ability of a corporate *person* to behave in such a manner and to exercise such a level of influence is distinctly different from our little graffiti artist.

7) One can argue, "well, why should the Kochs or Soros be able to make unlimited contributions and not a corporate person?" Simply this, the Kochs and Soros are not *fictionalized* persons and as such are not dependent upon the government for a grant of personhood nor a license of incorporation.

8) Arguments against corporate speech apply as well to the "personhood" of unions as well; for that matter any aggregate of persons dependent upon a license, charter or other grant from the government for their *personhood*

9) So let Soros and Koch spend to their hearts delight. what I do not want is to have some domestic beer brewer influencing Congress to raise taxes on imported beer such that the once common 12 oz. bottle is reduced to 11.2 oz. simply to avoid taxes (nowadays, some have been dropper to 9.6 oz.) The again, a 2x4 ain't nowhere near that dimension.

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gabe
on June 06, 2016 at 11:53:49 am

Oops!

10) I am not unaware of the effect (or non-effect) upon media corporations. Well, a) nothings perfect and I offer no panaceas and b) how would this be any different from what we now have in the media - a monolithic leftist agitprop, c) we righties don;t like - go out and buy the some media corporations.

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gabe
on June 07, 2016 at 15:04:56 pm

9) Actually, this has been studied formally. There is a high correlation between the wishes of the very wealthy and the actions of Congress. And there is no correlation between the wishes of the non-wealthy and the actions of Congress. (I can give you a link to a paper if you'd like. I posted it elsewhere in this forum a few days ago.)

The study only shows correlation, not causation. It could be that both Congress and the very wealthy both just happen to want the same sensible things. (No. Really. Stop laughing.)

My concern here is rights, not laws. We have a right to representation in government. Representation implies fidelity. Anything that harms the fidelity of my representative violates my right of representation. That includes money as well as party influences, blackmail, and opportunistic money-making activities by my representative.

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Scott Amorian

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.