Iowa Caucus Results Confirm that Money Cannot Buy Political Success

Consumers Balked Despite Massive Advertising

Ditto (at least this time)

Proponents of "campaign finance reform" (usually a euphemism for banning high value speech) often claim that unfettered campaign spending allows candidates to "buy" elections.   The results of last night's Iowa Caucus should throw some cold water on this idea.  As reported by Wonkette, Rick Santorum spent just $1.65 per each vote he received, compared to the more than $800 per vote spent by Texas Governor Rick Perry, pictured above.  (Governor Mitt Romney, the Iowa winner, spent just over $100 per vote.)  Thus, Perry joins the ranks of candidates such as former Texas Governor John Connoly, who earned a single Republican delegate after spending over $10 million in his 1980 presidential campaign, or current Vice President Joe Biden, who spent millions on his 2008 campaign but did not receive a single delegate. 

These results suggest what many have known for years, namely, high spending is neither a necessary nor sufficient condition for electoral success.  Political candidates are products.  As Ford learned with the Edsel (also pictured above) massive advertising (including an hour long special on CBS featuring Bing Crosby, Frank Sinatra and Bob Hope) cannot induce consumers in a free market to purchase an inferior product.  (Coke's experience with the so-called "New Coke" provides a similar historical lesson.)   At the same time, good products often "sell themselves," thereby obviating the need for massive advertising.  (Moreover many candidates are flush with campaign cash precisely because donors believe the candidate's message will resonate with the voters.  That is, a strong candidacy often results in numerous donations, and not the other way around.)  The people of Iowa apparently believed that Senator Santorum was a much better product than Governor Perry, thus explaining the Senator's strong second place finish compared to Governor Perry's less auspicious fifth place finish.

One final thought.  Voters in political markets are sometimes more forgiving than consumers in economic markets, with the result that politicians sometimes have several lives.  Thus, Richard Nixon lost the presidential campaign in 1960.  He then lost a race for governor of California in 1962 before resurrecting his political fortunes, winning the Presidency in 1968 and repeating the feat with a 49 state lanslide in 1972.  Abraham Lincoln, of course, lost more elections that he won.  In politics, persistence can sometimes pay off, and victory is sometimes a long run phenomenon.

President Obama's Off-Target Critique of Citizens United

Here are some thoughts on the President's State of the Union critique of the Citizens United decision, a critique that let to a simple and immediate rebuttal by Justice Alito.

1) The President began his criticism by expressing his respect for the Separation of Powers. It's not clear to me why the President felt it necessary to begin his remarks in this way. Presidents and members of Congress should feel perfectly free to criticize rulings of the Supreme Court, and doing so has no implications for the separation of powers. Andrew Jackson criticized McCulloch v. Maryland, Lincoln criticized Dred Scot, FDR criticized numerous decisions during the New Deal, and Reagan criticized Roe v. Wade. None of these criticisms alone or taken together in any way undermined the Separation of Powers. As Madison and Lincoln both explained, Presidents and individual citizens are perfectly free to disagree with decisions of the Supreme Court. Moreover, when acting in the sphere of their own authority, Presidents and members of Congress are perfectly free to take actions inconsistent with such decisions. So, for instance, Andrew Jackson was perfectly free to veto on constitutional grounds a bill to create a National Bank, even though the Supreme Court had unanimously held that Congress had the constitutional authority to create such a bank. In the same way, President Reagan was perfectly free to veto, on Constitutional grounds, Congress's effort to re-impose the so-called Fairness Doctrine, even though the Supreme Court had held that the doctrine is constitutional.

When Presidents and other political actors take issue with judicial rulings and/or act on their own views of the Constitution, they thereby facilitate a dialogue about the meaning of the constitution, a dialogue that can enhance both the quality and legitimacy of the resulting constitutional consensus.

2) Of course, if the President is going to criticize the Court in an effort to facilitate such a dialogue, he should characterize accurately the decision he is criticizing. President Obama's criticism's was factually inaccurate in a couple of ways.

First, the President claimed that the Court's decision would protect speech by "foreign companies." However, Citizens United, the actual party before the Court, was an American company, and the Court expressly declined to address whether Congress may place greater limits on foreign corporations (or, for that matter, foreign citizens) than it may impose on domestic companies. Hence, Citizens United in no way provides that foreign corporations or persons have the same free speech rights as American companies.

Second, the President claimed that the Citizens United decision "reversed a century of law." Again, this is demonstrably false. Congress did not attempt to regulate corporate speech until 1947, and the Supreme Court did not sustain such a ban until 1990, when, in Michigan Chamber of Commerce v. Austin, the Court upheld Michigan's ban on speech by the state's Chamber of Commerce. Before Austin, the Court struck down a Massachusetts ban on corporate political speech in connection with referenda campaigns. See First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978). After First National Bank, the Court held that Congress could not ban speech by non-profit ideological corporations, even when such speech took place in connection with an election. See Massachusetts Citizens for Life v. Federal Election Commission, 479 U.S. 238 (1986). (The Court thus did not decide one way or the other whether Congress had the authority to ban speech in connection with elections by for profit corporations.) To reiterate, Austin, decided just less than 20 years ago, was the first decision by the Court sustaining a ban on corporate political speech.

In referring to "a century of law," the President is implicitly invoking the so-called "Tillman Act," which, in 1907, banned corporate contributions to candidates for Federal office. The Act did not purport to ban corporate speech, even speech that required large expenditures of money on, say, newspaper advertisements announcing a corporation's endorsement of a candidate. For decades now, the Supreme Court has repeatedly distinguished between the (weaker) constitutional protections afforded to contributions, on the one hand, and speech, on the other. (Thus, for instance, Congress may limit the size of individual contributions to political candidates.) Citizens United dealt only with a Congressional ban on speech itself, and not with a ban on contributions.

It is certainly true that, like contributions, speech can involve an expenditure of money. (Though, some corporate speech my be as simple as a statement of endorsement by the firm's Board of Directors.) It's also true, however, that outright bribery of a public official involves an expenditure of money. However, no one would claim that Citizens United somehow called into question federal anti-bribery laws.

3) Let's hope that the President's future critique of Citizens United focuses on the decision's actual holding and rationale.

Update (February 1):

One of President Obama's supporters has issued another imprecise description of the Citizens United decision. According to E.J. Dionne, the decision was a "ruling on corporate money." It was not, of course. It was, instead, a ruling on "corporate speech." The decision did not address the regulation of, say, corporate campaign contributions, as explained above. Here is a link to Mr. Dionne's Op-Ed.

Citizens United/Good Riddance to Austin v. Michigan Chamber of Commerce

"Congress shall make no law. . . abdidging the Freedom of Speech, or of the Press . . ."

Last week the Supreme Court issued its long-anticipated decision in Citizens United v. Federal Election Commission. Thankfully, the Court "got it right." In particular, the Court overruled Austin v. Michigan Chamber of Commerce, a decision that had sustained, for the first time, a ban on core political speech simply because the speaking entity was a corporation, that is, a voluntary association of individuals.

In the fall, your not-so-humble blogger argued that Austin was incorrect, because the distinction it drew between corporations and other entities or, for that matter, natural persons, did not withstand analysis. Among other things this Blog said:

"Third, there is no good reason for treating corporations, large or small, any differently from Ross Perot or Bill Gates, both of whom earned most of their wealth from . . . corporations!Corporations are legal fictions, just like "partnerships," "sole proprietorships," "limited liability companies," "labor unions," "non profit corporations," etc. Behind these fictions are actual human beings who contribute labor, capital, know how, etc. to a joint enterprise. Corporations, like other forms of business organization, are best understood as a "nexus of contracts" between various categories of individuals that supply inputs to a joint enterprise. Where corporations are concerned, such suppliers include shareholders, debtholders, managers, employees, directors and others. Hopefully such enterprises earn enough to pay off lenders, pay handsome wages and salaries, and earn a profit. In the case of a corporation, some of the profits are paid out as dividends, some are reinvested in new projects, and some remain in the corporate treasury, for future use at the discretion of management."

The post also rejected the claim that corporations receive "special privileges from the state" that justify regulation not imposed on other actors, as well as the so-called "shareholder protection rationale" for banning corporate speech:

"Fifth, there are two counterarguments to the pro-speech approach that I have just sketched. First, that corporations receive "special privileges" from the state that justify additional state regulation, privileges such as perpetual life, entity status, and limited liability. Each such privilege, it is said, facilitates the creation of wealth in the economic marketplace that corporations might improperly transfer into the political arena, by spending resources on speech that exceeds the "actual public support" for the ideas expressed. Second, that shareholders need protection from managers who will use "their" (shareholders') money to speak about candidates the managers support, whether or not shareholders support them.

The Supreme Court bought the first argument in Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1991). Justice Brennan, in a concurrence, bought the second argument, analogizing corporate speech to a "theft" of shareholder assets to support viewpoints with which shareholders might disagree. Neither argument withstands scrutiny, in my view.

Many corporations, even large ones, are quite young. (Microsoft is ten years younger than I am.) Still, bans on corporate political speech apply "across the board," regardless of the age of the firm. Hence, the "perpetual life" attribute does not justify the current scope of speech regulation. Moreover, limited liability limits the liability of shareholders, not corporations (who are fully liable for their own torts or contract breaches despite limited liability), and it's a bit odd to invoke a benefit granted to individuals to justify disadvantaging corporations. (Moreover, corporations often "pay" for limited liability because they must pay higher interest rates to compensate voluntary creditors for the latter's inability to access shareholder assets if the corporation is judgment proof.)

To be sure, limited liability, perpetual life, entity status, etc. all facilitate the separation of ownership from control in large public corporations and thereby facilitate the creation and retention of wealth. (An investor is far more likely to purchase shares in a corporation if he or she knows that he or she can only lose the amount invested, without putting personal assets at risk.) Still, lots of background rules, whether contract law, tort law, partnership law, agency law, property law, trademark law, the law of secured transactions, etc., facilitate the creation and retention of wealth by individuals --- where would a franchise be without the state action necessary to enforce a trademark --- but we don't therefore conclude that individuals have received "special benefits from the state" that justify additional limits on their speech. Nor would we, for instance, allow the state to squelch speech by individuals to whom it had guaranteed a minimum income, even if the state argued that it was merely preventing the recipients of state largesse from using that largesse, or the leisure made possible by subsidies from others, to distort the political marketplace. Here again, there is no reason to distinguish individuals from corporations.

Moreover, most industries are characterized by free entry, so there is no reason to believe that the special nature of the corporate form generally allows firms to earn above-average returns, because such returns would just attract additional competition from other corporations. Finally, unless I am mistaken, bans on corporate speech are not reserved for large corporations, but apply even to corporations that are much smaller than many partnerships, for instance. Thus, even taken on their own (unpersuasive) terms, such bans are not narrowly tailored to further their purported interest.

What, though, about the "shareholder protection rationale?" Proponents of this approach argue that, if shareholders want to support a candidate, they can contribute to special funds that then spend the money on speech as directed by the corporation. Under this approach, Justice Brennan said, speech reflects "actual support" for the views expressed. This is mere wordplay. Such speech reflects some actual support, yes, but not the full actual support. As Roberto Romano argued before Austin, reliance upon separate funds is beset by collective action problems. One shareholder's contribution benefits all shareholders, even those who don't contribute. The result will be free riding by some shareholders on the contributions made by others and thus suboptimal expenditures on speech. Such a burden is not justified by any effort to protect shareholders, who have voluntarily agreed to participate in an enterprise that uses retained earnings to speak. Perhaps states could adopt heightened scrutiny of speech to make sure such speech furthers a firm's interest, but an outright ban, relegating shareholders to suboptimal separate funds, sweeps too far and offends the First Amendment, in my view. For an elaboration of this rebuttal of the shareholder protection argument, see Alan J. Meese, Limitations on Corporate Speech: Protection of Shareholders or Abridgement of Expression, 2 W&M Bill of Rights Journal 305 (1993) (See here)."

The full post appears here:

Several scholars have agreed with the decision to overrule Austin, in some cases touching on themes similar to those invoked here in the fall.

For instance, over at the Volokh Conspiracy, Professor Ilya Somin rejects the argument that "people acting through corporations [should] be denied constitutional rights because corporations are 'state-created entities.'" Professor Somin's post makes very good reading.

Moreover, Professor Stephen Bainbridge, on his own blog, describes what he calls "[Justice] Stevens' pernicious view of the concession theory" that purports to justify regulation of corporations.

Also, Eugene Volokh rebuts those who claim that speech by a corporation is "money, not speech." As Volokh points out, exercising various constitutional rights costs money, and this common sense fact does not thereby undermine the importance of the right or somehow confer upon Congress or the states extra authority to ban core political speech. For instance, if the Constitution protects a right to abortion, and Congress banned spending money on abortions, pro-choice advocates would not stand idly by and say "no problem; the law merely bans spending."

More later, I'm sure . . . .

On the Regulation of Corporate Political Speech

The Blog of the William and Mary Chapter of the American Constitution Society recently posted an article reporting on and summarizing William Van Alstyne's November 11 lecture regarding Citizens United v. Federal Election Commission, currently pending before the Supreme Court. At the end of the last term, the Court ordered reargument in the case, asking the parties to address whether, for instance, the Federal Government may, consistent with the First Amendment, ban speech by Corporations in support of or in opposition to a particular political candidate. The Court first approved such a ban in Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), in a 6-3 decision. Two justices presently on the Court dissented: Justice Kennedy and Justice Scalia. (Justice O'Connor, it should be noted, joined Justice Kennedy's dissent).

Here is a link to the story:

Among other things, the ACS article summarizes the case for stringent regulation of corporate speech as follows:

"Generally speaking, the campaign reform acts were put into place to prevent large commercial corporations from being able to contribute a large, disproportionate amount of money towards a particular campaign under the idea that such a contribution would make the democratic process less pure. Another reason why the campaign reform statutes were enacted was the fact that people purchase stocks from a corporation to further their own economic interest – not to make a political statement. The Supreme Court has upheld these campaign reform acts in the past, finding that a commercial corporation contributing money from its treasury to a candidate comes too close to bribery."

This is a fair summary of the rationales that proponents of such regulation have articulated. It should also be noted that such regulation includes outright bans on corporate political speech in connection with elections. Moreover, statutes banning such speech generally allow corporations to set up PACS that collect voluntary contributions from affiliated persons, such as shareholders and employees. Proponents of such bans on corporate speech argue that such PACS produce "enough" speech to vindicate the legitimate rights of corporations and their individual constituents to influence the political process.

Citizens United involves a slightly more complicated provision, Section 203 of the so-called Bipartisan Campaign Reform Act of 2002. Section 203 prohibits corporations from speaking 6o days before a general federal election and 30 days before a federal primary, whenever such speech requires expenditures from the corporation's general treasury, as opposed to the sort of "separate fund" described above. Moreover, Section 203's prohibitions arguably sweep more broadly than those at issue in Austin, described above, insofar as they apply even to speech that is primarily about issues, so long as a candidate is mentioned and the speech occurs during the requisite unsafe harbors before an election, i.e., when such speech is most likely to be effective.

I do not disagree with Professor Van Alstyne's description of how the Court might rule in Citizens United. Moreover, I agree that the decision could have major implications for the scope of state and federal authority over speech during political campaigns. Finally, I agree that, at least when it comes to regulation by individual states, the correct application of the Constitution could turn on whether corporations are, as the Supreme Court has repeatedly held or assumed for over a century, "persons" within the meaning of the 14th Amendment.

At the same time, I thought I would take this opportunity to offer some thoughts about the regulation/prohibition of Corporate political speech, from the perspective of someone who has taught Corporate Law and once even wrote about the regulation of corporate speech in a paper published by our own Bill of Rights Journal. See Alan J. Meese, Limitations on Corporate Speech: Protection for Shareholders or Abridgement of Expression, 2 W&M Bill of Rights Journal 305 (1993).

First, it is important to distinguish between speech, on the one hand. and contributions to candidates, on the another. Much commentary about the case, particularly by proponents of such regulation, muddies the distinction between these two means of influencing the political process.

Citizens United wants to speak, not make a contribution to a candidate or otherwise fund a campaign. Such speech costs money, but so does speech by individuals. (Even bumper stickers, yard signs and billboards cost money. Ditto for advertisements that an individual might take out in the newspaper or on television. Writing a letter to the editor or canvassing a precinct can cost money, particularly if the author or the canvasser must forgo other opportunities to write or canvass.) Ditto too for the exercise of certain other constitutional rights, e.g., building a church. If a state law provided that "no one shall spend more than $50,000 building a house of worship," we would (properly) call the law a burden on the exercise of religion, not a regulation of "religious spending." A proper application of the First Amendment in the Citizens United case requires the Court to distinguish between "speaking" and "contributing."

Second, the Supreme Court has properly (in my view) held that individuals are generally free to speak as much as they want, even if such speech is very expensive. Thus, the state could not prevent Ross Perot or Bill Gates from spending his entire personal fortune taking out newspaper advertisements in support of a candidate, so long as each really was acting independently. Nor could it prevent Mr. Perot from giving away his fortune to the Church of his choice. It would not matter in this connection if the resulting speech was "disproportionate" to the actual public support for the ideas expressed.

Third, there is no good reason for treating corporations, large or small, any differently from Ross Perot or Bill Gates, both of whom earned most of their wealth from . . . corporations! Corporations are legal fictions, just like "partnerships," "sole proprietorships," "limited liability companies," "labor unions," "non profit corporations," etc. Behind these fictions are actual human beings who contribute labor, capital, know how, etc. to a joint enterprise. Corporations, like other forms of business organization, are best understood as a "nexus of contracts" between various categories of individuals that supply inputs to a joint enterprise. Where corporations are concerned, such suppliers include shareholders, debt holders, managers, employees, directors and others. Hopefully such enterprises earn enough to pay off lenders, pay handsome wages and salaries, and earn a profit. In the case of a corporation, some of the profits are paid out as dividends, some are reinvested in new projects, and some remain in the corporate treasury, for future use at the discretion of management.

Fourth, if a corporation speaks, by, for instance, paying for an advertisement in a newspaper, it is because the directors, elected by the shareholders, have hired managers who think such speech is in the best interest of the corporation, i.e., the shareholders. Shareholders are persons. The funds expended are presumably retained earnings that managers are "investing" in speech they believe will benefit the shareholders. Corporate law traditionally grants managers very wide leeway to make investment decisions, e.g., whether to focus on building large or small cars, cars or tractors, tractors or boats, inboard or outboard motors, etc. Economists and economically sophisticated legal scholars explain this leeway by pointing out that various non-legal market mechanisms align the interests of directors and managers on the one hand, and shareholders on the other. These mechanisms are not perfect; no such mechanism is, but they deter directors and managers to some extent from employing retained earnings for projects that do not advance the interests of shareholders.

There is no reason to believe that directors/managers are any less likely to act in shareholder interests when making investments in speech than when making investments in factories, charitable giving, or research and development. If shareholders think Ford is making poor investment decisions, whether the investments are speech or factories, they can sell their shares. In other words, what we sometimes call "corporate speech" is really speech on behalf of persons who have authorized such speech, utilizing resources that the corporation could otherwise pay out to shareholders in dividends or use to invest in new projects.

As a result, bans on "corporate speech" are really bans on individual speech, and they must stand or fall under the same standards applied to analyze bans on individual speech.

Fifth, there are two counterarguments to the pro-speech approach that I have just sketched. First, that corporations receive "special privileges" from the state that justify additional state regulation, privileges such as perpetual life, entity status, and limited liability. Each such privilege, it is said, facilitates the creation of wealth in the economic marketplace that corporations might improperly transfer into the political arena, by spending resources on speech that exceeds the "actual public support" for the ideas expressed. Second, that shareholders need protection from managers who will use "their" (shareholders') money to speak about candidates the managers support, whether or not shareholders support them.

The Supreme Court bought the first argument in Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1991). Justice Brennan, in a concurrence, bought the second argument, analogizing corporate speech to a "theft" of shareholder assets to support viewpoints with which shareholders might disagree. Neither argument withstands scrutiny, in my view.

Many corporations, even large ones, are quite young. (Microsoft is ten years younger than I am.) Still, bans on corporate political speech apply "across the board," regardless of the age of the firm. Hence, the "perpetual life" attribute does not justify the current scope of speech regulation. Moreover, limited liability limits the liability of shareholders, not corporations (who are fully liable for their own torts or contract breaches despite limited liability), and it's a bit odd to invoke a benefit granted to individuals to justify disadvantaging corporations. (Also, corporations often "pay" for limited liability because they must pay higher interest rates to compensate voluntary creditors for the latter's inability to access shareholder assets if the corporation is judgment proof.)

To be sure, limited liability, perpetual life, entity status, etc. all facilitate the separation of ownership from control in large public corporations and thereby facilitate the creation and retention of wealth. (An investor is far more likely to purchase shares in a corporation if he or she knows that he or she can only lose the amount invested, without putting personal assets at risk.) Still, lots of background rules, whether contract law, tort law, partnership law, agency law, property law, trademark law, the law of secured transactions, etc., facilitate the creation and retention of wealth by individuals --- where would a franchise be without the state action necessary to enforce a trademark --- but we don't therefore conclude that individuals have received "special benefits from the state" that justify additional limits on their speech. Nor would we, for instance, allow the state to squelch speech by individuals to whom it had guaranteed a minimum income, even if the state argued that it was merely preventing the recipients of state largesse from using that largesse, or the leisure made possible by subsidies from others, to distort the political marketplace. Here again, there is no reason to distinguish individuals from corporations.

Moreover, most industries are characterized by free entry, so there is no reason to believe that the special nature of the corporate form generally allows firms to earn above-average returns, because such returns would just attract additional competition from other corporations. Finally, unless I am mistaken, bans on corporate speech are not reserved for large corporations, but apply even to corporations that are much smaller than many partnerships, for instance. Thus, even taken on their own (unpersuasive) terms, such bans are not narrowly tailored to further their purported interest.

What, though, about the "shareholder protection rationale?" Proponents of this approach argue that, if shareholders want to support a candidate, they can contribute to special funds that then spend the money on speech as directed by the corporation. Under this approach, Justice Brennan said, speech reflects "actual support" for the views expressed. This is mere wordplay. Such speech reflects some actual support, yes, but not the full actual support. As Roberto Romano argued before Austin, reliance upon separate funds is beset by collective action problems. One shareholder's contribution benefits all shareholders, even those who don't contribute. The result will be free riding by some shareholders on the contributions made by others and thus suboptimal expenditures on speech. Such a burden is not justified by any effort to protect shareholders, who have voluntarily agreed to participate in an enterprise that uses retained earnings to speak. Perhaps states could adopt heightened scrutiny of speech to make sure such speech furthers a firm's interest, but an outright ban, relegating shareholders to suboptimal separate funds, sweeps too far and offends the First Amendment, in my view. For an elaboration of this rebuttal of the shareholder protection argument, see Alan J. Meese, Limitations on Corporate Speech: Protection for Shareholders or Abridgement of Expression, 2 W&M Bill of Rights Journal 305 (1993).

Let's hope the Supreme Court keeps these various principles in mind when reconsidering Austin!

A Patriotic Poster. Just Because.

Governor Kaine Rebuffs ACLU, Allows Citizens to Choose Life (License Plates)

In 2003, then-Governor Mark Warner vetoed a bill that would have allowed Virginians to pay an extra $25 voluntarily to add "Choose Life" to their license plates. At the time Warner cited "potential First Amendment issues." Yesterday Governor Tim Kaine announced that he will NOT veto a similar measure, thereby reversing Warner's position and rebuffing the ACLU, Planned Parenthood, and other opponents of the bill who do not agree with the message conveyed by such plates. Virginia now joins 23 other states that allow their citizens to express themselves by purchasing such plates. After 1000 such plates are purchased, $15 from each such purchase will go to fund crisis pregancy centers that encourage alternatives to abortion, including adoption.

As Kaine rightfully pointed out, Virginia already allows citizens to choose from among numerous message they wish to include on their plates, including messages that others might not share. Examples include "Friends of Tibet," "Kids First," "Home Education," "Fraternal Order of Police," the "National Rifle Association," "Fight Terrorism," "Peace," etc. Moreover, a University of Virginia fan certainly does not agree with the message conveyed by a "Virginia Tech" license plate. Indeed, one might even say that the "Choose Life" plate is simply a natural extension Virginia's "Kids First" license plate, shown at the top of this post.

The objection by Planned Parenthood to such plates is strange indeed. After all, hundreds of thousands of Virginia taxpayer subsidize Planned Parenthood involuntarily, since the state legislature has seen fit to appropriate millions of dollars to Planned Parenthood each year, and the taxes that support these appropriations are by no means voluntary. (Try writing to your state legislator and asking for a pro-rata refund of your tax dollars that get funneled to Planned Parenthood!). If the legislature can coerce Virginians into supporting Planned Parenthood, why can't the state allow citizens to express an opposing view at their own expense on a license plate that they pay for.

I wonder if Planned Parenthood plans to seek a license plate expressing its view that abortion is sometimes a laudable choice ? I am not aware of any states that allow such plates. I can imagine some arguing that the Constitution would require the legislature to grant such a request. At the same time, the Supreme Court has repeatedly said that the state need not be morally neutral on the question of abortion, for instance. It may instead speak and encourage others to speak in favor of life. As Chief Justice Rehnquist put it in Rust v. Sullivan:

"To hold that the Government unconstitutionally discriminates on the basis of viewpoint when it chooses to fund a program dedicated to advance certain permissible goals, because the program in advancing those goals necessarily discourages alternative goals, would render numerous Government programs constitutionally suspect. When Congress established a National Endowment for Democracy to encourage other countries to adopt democratic principles, it was not constitutionally required to fund a program to encourage competing lines of political philosophy such as communism and fascism. "

I do not mean to say that the question is a "slam dunk" for a legislature that rejects such a petition. After all, individuals who pay for license plates are not the government. Moreover, some might argue that the state has created a sort of "public forum" by creating a "vehicle" through which private individuals may express themselves. An analogy might be a public university, which by its nature invites the expression of all views, views that the state cannot selectively quash. This "public forum" analogy might fail for two reasons, though. First, a group whose petition for a particular license plate message is denied can simply display bumper stickers, which are far less expensive than such vanity plates, anyway, thus suggesting that any burden on speech is quite small. Second, the "public forum" analogy seems to prove too much; it would seem to require, for instance, a state that allows "Stop Domestic Violence" plates also to allow hateful plates expressing a contrary message. Given the state's (limited) association with the messages in question --- an association that makes a license plate message more attractive than bumper stickers --- one might conclude that the state has more leeway within the confines of its license plates than it does in a traditional public forum.

Thank you, Governor Kaine !