Tag: political speech

Even Little Platoons Have First Amendment Rights

Nathan Worley and three friends hold a weekly political discussion group in their hometown of Sarasota, Florida. In 2010, a ballot initiative for a proposed amendment to the Florida constitution prompted the group to pull together $600 and exercise their First Amendment rights. They soon found, however, that doing so wasn’t going to be quite so easy.

Under Florida’s campaign finance law, it’s illegal for two or more people to join together and spend more than $500 supporting or opposing a state ballot issue. Instead, the state forces even small groups like Worley’s to register and speak through a political committee, which is then subject to a vast catalog of vague, inscrutable regulations that are enforced by thousands of dollars in fines. To speak publicly about the ballot issue, Worley’s informal coterie would have to hire a specialized lawyer and accountant and include “disclosures” in their planned radio ads that would take up about 20 percent of the airtime.

Instead of remaining silent like most small groups do when faced with this type of prohibitive regime, the Worley crew joined with the Institute for Justice to challenge Florida’s laws and vindicate their right to free political speech in federal court. Despite the obvious speech-chilling effect of the regulations, however, the lower courts failed to rigorously scrutinize Florida’s laws. The U.S. Court of Appeals for the Eleventh Circuit in particular abdicated its judicial role in two ways.

First, instead of applying “strict scrutiny,” the court chose the more deferential “exacting” scrutiny, based on the notion that so-called “disclosure” requirements like Florida’s don’t prevent people from speaking. Second, the court hardly even applied the “exacting” standard — deciding, on its own, to all but ignore the facts of the case by analyzing it as a challenge to the entire campaign-finance regime rather than simply as-applied to small groups like Worley’s.

In light of the Eleventh Circuit’s refusal to meaningfully scrutinize Florida’s speech-restrictive laws, Worley and IJ have petitioned the Supreme Court to hear their case. Cato and the Center for Competitive Politics have filed a brief supporting that petition because rulings like the lower courts’ here demonstrate a clear need for the Supreme Court to clarify the correct standards to apply when evaluating campaign finance regimes like Florida’s.

Courts shouldn’t be able to get by without judging just because a state calls its speech regulation “disclosure,” or because the courts decide on their own to recharecterize the case as a “facial” challenge. A Supreme Court hearing would put needed pressure on the federal judiciary to actually scrutinize these types of speech regulations and hopefully prevent them from continuing to silence small groups with little funding — because even little platoons of politically interested citizens have First Amendment rights.

The Supreme Court will decide later this fall whether to hear Worley v. Florida Secretary of State.

This blogpost was co-authored by Cato legal associate Julio Colomba.

The First Amendment Is More than a Political Slogan

During the November 2010 election, a number of Minnesota voters were greeted at the polls with threats of criminal prosecution just for wearing hats, buttons, or shirts bearing the images, slogans, or logos of their favorite political causes (typically not relating to the Republican or Democratic parties).

Election officials cited Minnesota Statute § 211B.11, which makes it a misdemeanor to wear a “political badge, political button, or other political insignia” to the polls on election days. While there is no definition of “political” in the statute, an Election Day Policy distributed before the election explained that the statute bans any material “designed to influence or impact voting” or “promoting a group with recognizable political views.”

After several of their members were forced to cover up or remove clothing or accessories deemed to be political — in the sole discretion of an election official — a group of organizations and individuals brought suit to challenge the state law on the grounds that it unlawfully stifles core First Amendment-protected speech. The federal district court dismissed the suit, finding that § 211B.11 satisfied the lesser degree of judicial scrutiny to which viewpoint-neutral speech restrictions are subject. On appeal, a divided panel of the U.S. Court of Appeals for the Eighth Circuit upheld the law’s constitutionality, citing precedent permitting bans on active campaigning at polling sites and extending that reasoning to allow prohibitions even on passive political expression.

Those challenging the law have now asked the Supreme Court to review their case. Cato joined the Rutherford Institute on a brief supporting them, arguing that the Minnesota law’s absolute ban on “political” materials at polling sites is an unconstitutional restriction of core First Amendment speech.

Protecting the right of the people to advocate political causes is one of the primary purposes of our constitutional protections for the freedom of speech, so government restrictions in this area must be narrowly drawn and for a truly compelling reason, regardless of the type of forum where the ban applies. While the Eighth Circuit relied on precedent permitting bans on campaigning at polling sites, prohibiting inert political expression at these locations doesn’t serve a similar interest; passive expression simply doesn’t pose the same threats to elections — intimidation and chilling of voters — that active campaigning can. Accordingly, § 211B.11 cannot pass strict scrutiny; in legal terms, the restrictions it imposes are simultaneously under-inclusive, over-inclusive, and overly broad.

The Supreme Court will decide whether to take the case of Minnesota Majority v. Mansky late this fall.

The First in a Long Series

The Washington Post offers today a critical look at independent fundraising and spending in the 2012 campaign.

The article states independent groups are raising money “in response to court decisions that have tossed out many of the old rules governing federal elections, including a century-old ban on political spending by corporations.”

But the century-old ban is on campaign contributions by corporations, and it is intact. Spending on elections was not prohibited to some corporations until much later.

Other spending by corporations, like the money spent by The Washington Post Company to produce the linked story, has never been regulated or prohibited by the federal government.

The article mentions a “shadow campaign” and refers to Watergate. It states “independent groups are poised to spend more money than ever to sway federal elections.” Surely something is amiss here! Or at least the causal reader of the Post might conclude that.

But what is going on? A spokesman for one of the independent groups says they are trying to influence the debt ceiling debate and that as far 2012 goes: “We’re definitely working to shape how the president is perceived, because how he is perceived will have a huge impact on how this issue is resolved.”

It sounds like the group is engaging in political speech on an issue, speech that could have some effect on next year’s election. What is amiss about that? Isn’t the right to engage in such speech a core political right under our Constitution?

The article also argues that independent groups, being independent, may fund speech that may harm a candidate they are trying to help. Candidates, in a sense, have lost some control over their campaigns and their messages.

Of course, absent limits on contributions to candidates and parties, the money going to independent groups might go to…candidates and parties. Liberalizing speech, not suppressing independent groups, might be a good way to prevent groups from airing ads that harm or misrepresent candidates for office. Finally, candidates do have the power to repudiate independent ads.

Expect more news stories like this one over the next 18 months. The cause of campaign finance reform is in desperate straits. Reformers in the media are going to construct a narrative that says: money is destroying democracy in 2012, all because of Citizens United. They hope thereby to set the stage to restore restrictions on campaign finance.

Court Says Punishing Political Speech Violates First Amendment

With its last opinion on the last day of the term, the Supreme Court brought things back to constitutional basics by striking down a state law that punished political speech. Whatever the motivations behind Arizona’s so-called Clean Elections Act, giving a publicly funded candidate more taxpayer-provided money every time his privately funded opponent—or his supporters—have “spoken too much” clearly chills speech. In elections, where there is no effective speech without spending money, matching funds provisions triggered by speech fail First Amendment scrutiny.

And this result should’ve been obvious to the entire Court, not just a five-justice majority, in the wake of the Davis v. FEC “Millionaires’ Amendment” case from 2008. Davis struck down the part of McCain-Feingold in which spending by individually wealthy candidates triggered increased contribution limits for their opponents. If the mere possibility of your opponent getting more money is unconstitutional, then the guarantee that your opponent will get more money—as was the case under the Arizona law—is even more so.

Allowing the government to burden political speech in this fashion not only diminishes the quality of political debate, but ignores the fundamental principle upon which the First Amendment is premised: that the government cannot be trusted to regulate political speech for the public benefit. Moreover, the state cannot condition the exercise of the right to speak on the promotion of a viewpoint contrary to the speaker’s.

Here’s Cato’s brief in the case, Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett.

What the Tea Party Hath Wrought?

The Internal Revenue Service is investigating campaign donations to groups incorporated under 501(c)(4) of the tax code. Some in the IRS apparently hope to apply gift taxes to the contributions.

Higher taxes on an activity would generally lead to less of that activity, especially if a good substitute exists that is not taxed. In this case, donors could give money to 527 groups. Such donations are exempt from taxation. But 527 groups are subject to disclosure of donors.

The IRS investigations involve tax provisions “that had rarely, if ever, been enforced.” Why now? We do not know. But 501(c)(4) groups played in a important part in the 2010 campaign. As you know, the party in power lost control of the House of Representatives in 2010.  With the president’s re-election at stake in 2012, the administration might hope that that less money is available to fund the political speech of its opponents.

The White House has already issued a draft order requiring disclosure of political spending by government contractors. Now these investigations of donors. The IRS effort need not lead to legal complaints to be politically effective. As one expert notes, “The lack of clarity and the potential for not-insignificant taxation on these gifts will cause many of the biggest donors to think twice.”

Many people argue that mandatory disclosure of political spending has few costs and many benefits. Such laws are said to discourage few donors from funding political speech. If that is true, why is the Obama administration so interested in forcing donors out of anonymity?

Perhaps the administration believes deeply in transparency. Or perhaps the administration believes that attacking (no longer anonymous) donors will effectively discourage speech critical of the President in 2012.

The political misuse of the Internal Revenue Service should be a concern of everyone. During the Kennedy, Johnson, and Nixon administrations, presidents and their people decided, as John Dean put it at the time, to “use the available federal machinery to screw our political enemies.” Have we forgotten that history?

New Evidence on the Costs of Mandating Disclosure

Over the next few years, most arguments about campaign finance regulation will be about extending mandated disclosure to some of the independent spending freed up by the Citizens United decision.

Writing in the Wall Street Journal, James L. Huffman offers a unique perspective on mandated disclosure: he was a candidate for the U.S. Senate last year. He argues that mandated disclosure means incumbents know who funded the campaigns of their challengers.  Incumbents do not have to actually threaten anyone; disclosure plus circumstances means a cautious businessperson will stay clear of electoral participation. Huffman also claims that some people who might have contributed to his campaign heard from associates of his opponent who said contributing to Huffman might be a bad idea.

We have heard such testimony before about the malign effects of disclosure. George Soros said some potential contributors to his efforts to unseat former President George W. Bush stayed on the sidelines because of concerns about publicity (see James V. Grimaldi and Thomas B. Edsall, “Super Rich Step Into Political Vacuum; McCain-Feingold Paved Way for 527s” The Washington Post, October 17, 2004).  Now we have a Senate candidate citing “dozens” of examples of a similar chilling of political speech.

Some might think incumbent protection is no longer a problem since 69 House seats changed hands in 2010 (and a similar number in the two previous House elections). If you think that, please recall that the House has 435 seats, all of which could potentially change hands. Yes, the advantages of incumbency have become somewhat smaller in recent years. But those advantages remain significant, and disclosure does increase the risk of contributing to a challenger, especially when the odds are overwhelming that those now in office will win re-election.

What should be done? Huffman notes that many Americans consider mandated disclosure to be all benefits and no costs. We might begin by gaining a more realistic view of the disclosure calculus. That more realistic view should include the costs of disclosure including lower participation and the ways mandated disclosure make public debates more irrational. At a minimum, existing disclosure thresholds should be dramatically raised. Forcing disclosure of the names of those who contribute less than $1,000 serves no public purpose.

We also should not mandate disclosure of the names of those who support speech independently of candidates and the parties. The only justification for such a mandate would be educating the voters. In other words, voters are thought to look for cues about who to vote for by considering who spends money on speech favoring a candidate. Does that seem plausible? If not, forced disclosure of independent spenders would not be constitutional. If Congress nonetheless enacts disclosure for independent spending, the U.S. Supreme Court should rigorously consider both the end served by such laws and the relationship between the means of disclosure to that end. Does disclosure of independent spending really educate any voters? If so, what about the costs to free speech identified by Professor Huffman? Once we set aside conventional pieties, does forcing people to tell government officials about their political activities really offer much to nation? Or does such coercion do little more than indulge those who equate politics with the pleasures of preaching hatred of those they despise?

Last year I wrote a Cato policy analysis of the justifications for disclosure after Citizens United.

A Year After Citizens United, Campaign Finance Back at the Court

As Caleb noted earlier, today marks the one-year anniversary of Citizens United, a case I first thought ”just” concerned some weird regulation of pay-per-view movies, but turned out to be about asserted government power to ban political speech — including books and TV commercials — simply because the speaker was not one individual but a group (in corporate or or other associational form).  See also this op-ed by ACLU lawyer Joel Gora.

Roger similarly noted the continuing discussion in Congress and elsewhere about the public financing of elections.  As it turns out, the Supreme Court has agreed to hear a challenge to such a system, specifically Arizona’s Clean Elections Act.  Brought by our friends at the Institute for Justice and the Goldwater Institute and supported by our brief at the cert petition stage, this lawsuit challenges a law that aimed to “clean up” state politics by creating a system for publicly funding campaigns.

Participation in the public funding is not mandatory, however, and those who do not participate are subject to rules that match their “excess” private funds with disbursals to their opponent from the public fund. That is, if a privately funded candidate spends more than her publicly funded opponent, then the publicly funded candidate receives public “matching funds.”

Whatever the motivations behind the Clean Elections Act, the effects have been to significantly chill political speech: privately funded candidates changed their spending — and thus their speaking — as a result of the matching funds provisions. In elections, where there is no effective speech without spending money, matching funds provisions such as those at issue here diminish the quality and quantity of political speech.

In 2008, however, the Supreme Court struck down a similar part of the federal McCain-Feingold law in which individually wealthy candidates were penalized for spending their own money by triggering increased contribution limits for their opponents (Davis v. FEC, in which Cato also filed a brief). Even this modest opportunity for opponents to raise more money was found to be an unconstitutional burden on political speech.

Cato’s latest brief thus asks the following question: Whether Arizona may give a publicly funded candidate extra money because a privately funded opponent or his supporters have, in the state’s judgment, spoken too much. We highlight Davis and numerous other cases that point to a clear answer: if the mere possibility of your opponent getting more money is unconstitutional, then the guarantee that your opponent will get more money is even more so. Allowing the government to abridge political speech in this fashion not only diminishes the quality of political debate, but ignores the fundamental principle upon which the First Amendment is premised: that the government cannot be trusted to regulate political speech for the public benefit. Moreover, the state cannot condition the exercise of the right to speak on the promotion of a viewpoint contrary to the speaker’s.

The case is McComish v. Bennett, consolidated with Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett.  The Court will hear it March 28, with a decision expected by the end of June.