Justice v. Hosemann

December 23, 2015 • Legal Briefs
By Ilya Shapiro, Trevor Burrus, Allen Dickerson, & Owen Yeates

When people think about campaign spending, they usually think about millionaires and billionaires spending large amounts to elect national candidates. But campaign finance requirements also apply to those who spend only small amounts on political speech. In some states, those laws are very restrictive and place large burdens on even the most grassroots political organizers. Mississippi, for example, requires those who collectively spend more than $200 on political ads to organize into an official political committee, register with the state, and subject themselves to numerous ongoing record‐​keeping, reporting, and other requirements. These burdensome restrictions proved too much for five friends from Oxford, Mississippi who wanted to join together to spend under $1000 on ads in favor of a ballot initiative to strengthen the state’s protections against eminent domain abuse. The Institute for Justice brought suit on their behalf, arguing that the restrictions are unnecessarily and unconstitutionally burdensome on the most basic First Amendment activity—that is, joining together with like‐​minded people to speak about important political issues. After losing in the U.S. Court of Appeals for the Fifth Circuit, the case is now on petition to the Supreme Court. In a brief supporting the petition, Cato, joined by the Center for Competitive Politics and the Independence Institute, argue that courts around the country are making it uniquely difficult for small political spenders to challenge burdensome regulations. In this case, for example, the Fifth Circuit refused to consider the plaintiffs’ challenge “as‐​applied” (meaning the law is unconstitutional only as‐​applied to the plaintiffs) and instead converted the case into a much more difficult “facial” challenge (the law is unconstitutional in all instances). Essentially, that meant that the plaintiffs first had to violate the law before they could challenge it. But, as recently as last year, the Supreme Court has held that no one should have to violate a law before they can challenge it as unconstitutional. This may seem like a minor and technical quibble, but courts all over the country are converting “as‐​applied” challenges to “facial” challenges in campaign spending cases and thus ruling against small political spenders. Consequently, it has become increasingly difficult to get cases to the point where courts can answer the really important question: namely, does it make any constitutional sense to have people register with the government when they only want to spend $500 on political ads? The Supreme Court should grant certiorari to vindicate the First Amendment rights of grassroots political advocates.

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