Illinois Business Journal: Counterpoint: Should the U.S. Constitution be amended to reverse Citizens United? No: Government power over campaign spending is a threat to free speech (In the News)

By Bradley A. Smith
Laws banning corporate speech do not just silence major for-profit firms. They also silence nonprofit advocacy groups. Justice Anthony Kennedy listed examples of speech that would constitute a felony prior to Citizens United: “The Sierra Club runs an ad, within the crucial phase of 60 days before the general election, that exhorts the public to disapprove of a Congressman who favors logging in national forests; the National Rifle Association publishes a book urging the public to vote for the challenger because the incumbent U. S. Senator supports a handgun ban; and the American Civil Liberties Union creates a Web site telling the public to vote for a Presidential candidate in light of that candidate’s defense of free speech. These prohibitions are classic examples of censorship.” …
An amendment reversing Citizens United would be most dangerous for critics of powerful politicians, not those already with money and power. History teaches us that giving government power over speech, however indirect, inevitably harms marginalized groups and critics of the government. America’s strong protections for political speech were developed by generations who discovered that, unless the First Amendment was given a robust interpretation, in practice it was easy for governments to shut down their critics. Those on the outskirts of acceptable political opinion, from civil rights activists to Communist Party members, found themselves at risk of being arrested, fined, and subject to retribution simply for speaking their minds.
This history should inform the current debate. Government officials typically do not go after the message they want to censor directly. Instead they target the methods employed by groups they wish to stop. Political spending is one method that is always under attack. 

Filed Under: Brad Smith, In the News, Published Articles

Giving Meaning to Narrow Tailoring and Burdens of Proof: IJ Scores a Win for Free Speech in Colorado

One of the problems with campaign finance laws is that, no matter how well-intentioned, in practice, the laws have less to do with “cleaning up government” or “ending special interest influence” than they do with squelching political speech. Despite this reality, judges – including those who are highly skeptical of state claims in areas of […]

Filed Under: Blog, campaign finance enforcement, institute for justice, Paul Sherman, Raymond Moore, Tammy Holland, Colorado

TaxProf Blog: The IRS Scandal, Day 1828: Smith Responds To Johnston’s ‘Ad Hominem Attack’ On His WSJ Op-Ed (In the News)

By Paul Caron
TaxProf Blog op-ed: David Cay Johnston’s Ad Hominem Attack On My WSJ Op-Ed, by Bradley Smith (Capital University Law School; former Chair, Federal Election Commission):
David Cay Johnston claims that I have a “moral obligation” to address the claims of his op-ed, Bradley Smith’s WSJ Op-Ed Is A ‘Breathtaking’ Distortion Of The Facts Of The IRS ‘Scandal’. Well, OK then….
First, he argues that “there was no “targeting” of right wing groups,” and that any “hassling” was limited to “dubious applicants.”
Of course, this is not the conclusion of TIGTA, which notes that the inappropriate IRS scrutiny began with organizations with the words “tea party” in their names, later expanded to include many other names, starting with “Patriot” and gradually expanding to include many others. (Here is how the U.S. Court of Appeals for the Sixth Circuit summed up the TIGTA Report: “Those findings include that the IRS used political criteria to round up applications for tax-exempt status filed by so-called tea-party groups; that the IRS often took four times as long to process tea-party applications as other applications; and that the IRS served tea-party applicants with crushing demands for what the Inspector General called ‘unnecessary information.'”)

Filed Under: Brad Smith, In the News, Published Articles

Wall Street Journal: The Unresolved IRS Scandal (In the News)

By Bradley A. Smith
May 10 marks the fifth anniversary of the revelation that President Obama’s IRS targeted conservative groups for more than two years prior to the 2012 presidential election.
While some of the faces at the IRS have changed, the law that enabled their misuse of power has not. Congress’s failure to address the problem leaves the U.S. democratic process vulnerable to further abuses…
The easy fix here would be for Congress simply to scrap restrictions on political activity by social-welfare organizations, thereby stripping the IRS of authority to decide which groups are “political committees” and which aren’t. In a democracy, political activity is part of social welfare. Such a change would not affect federal revenue, as contributions to social-welfare organizations are not tax-deductible. There would be no “subsidizing political activity.”
The Federal Election Commission-a bipartisan agency staffed by experts and created to oversee election-related activities-is the proper authority to determine whether an organization should be subject to regulation under campaign-finance laws. The IRS-an agency under control of the president, with no bipartisan checks, subject to congressional pressure, and tasked with collecting revenue-is not.
There is a long history of presidents from both parties using the IRS to harass political opponents. Democrats and Republicans alike should recognize that, fix the law, and get the IRS out of politics.

Filed Under: Brad Smith, In the News, Published Articles

Washington Examiner: Trump-appointed judge delivers fantastic campaign finance opinion in first ruling (In the News)

By Bradley A. Smith
“The unfortunate trend in modern constitutional law is not only to create rights that appear nowhere in the Constitution, but also to disfavor rights expressly enumerated by our Founders.”
This is the first line of the first judicial opinion written by Judge James C. Ho of the United States Court of Appeals for the 5th Circuit…
His first opinion, released in April, was a dissent in a case asking whether an Austin, Texas, $350 limit on political contributions was constitutional…
He began with a detailed analysis as to why Austin’s $350 limit on campaign contributions should be struck down as unconstitutionally low under Supreme Court precedent. Straightforward enough. Ho went further, questioning the right of government to limit political participation at all. “As citizens,” he wrote, “we enjoy the fundamental right to express our opinions on who does or does not belong in elected office.”
Ho pointed out that contribution limits prohibit the exercise of protected First Amendment rights to support candidates and voice political views even when there is no corruption whatsoever. Adding a badly needed dose of realism, Ho wrote, “Countless Americans contribute for no other reason than to support candidates who share their beliefs and interests … without any inkling of a quid pro quo agreement. Indeed, many Americans contribute without ever even communicating with the candidate. … A donor might simply be inspired by the candidate’s prior record of public service, proposed future action, or a particular speech or debate performance. Such contributions are far from corrupt.”

Filed Under: Brad Smith, In the News, Published Articles

National Conference of State Legislatures: Get Rid of Needless Campaign Regulations (In the News)

By Bradley A. Smith
In the past decade, 18 states have raised contribution limits. But that means more have not. And almost no states have raised their limits to fully account for inflation since the limits were first imposed. Higher limits can reduce time spent fundraising.
Additionally, many states increase compliance costs (a campaign cost) and smother true grassroots campaigns with needless, and needlessly complex, regulations. People should not be discouraged from participating in politics by spools of red tape, but too many states have intricate, confusing campaign laws that desperately need simplification.
Meanwhile, provisions of the federal government’s 2002 Bipartisan Campaign Reform Act, aka the McCain-Feingold Act, have severely hampered fundraising by state and local party committees. State officials should insist that Congress amend the law to free up local parties, easing the burdens of candidate fundraising and enhancing grassroots participation.
Efforts to lower spending through limits and regulation have been unsuccessful-after all, we have far more regulation than 40 years ago. Lower spending also comes at the expense of voter knowledge. Doing away with needless regulations, and thinking about things such as early voting or restructuring legislative chambers, will make it easier and less costly to run for office, without limiting political speech.

Filed Under: Brad Smith, In the News, Published Articles

Wall Street Journal: Stormy Weather for Campaign-Finance Laws (In the News)

By Bradley A. Smith
Not everything that might benefit a candidate is a campaign expense.
Campaign-finance law aims to prevent corruption. For this reason, the FEC has a longstanding ban on “personal use” of campaign funds. Such use would give campaign contributions a material value beyond helping to elect the candidate-the essence of a bribe.
FEC regulations explain that the campaign cannot pay expenses that would exist “irrespective” of the campaign, even if it might help win election. At the same time, obligations that would not exist “but for” the campaign must be paid from campaign funds.
If paying hush money is a campaign expense, a candidate would be required to make that payment with campaign funds. How ironic, given that using campaign funds as hush money was one of the articles of impeachment in the Watergate scandal, which gave rise to modern campaign-finance law.
When the FEC adopted these regulations, it specifically rejected a rule under which campaign contributions could fund an expenditure “related to” a candidacy. The FEC was concerned that would make it too easy for candidates to use campaign funds for personal benefit.

Filed Under: Brad Smith, In the News, Published Articles, WSJ

Washington Examiner: The Founders didn’t limit political contributions, and neither should we (In the News)

By Bradley A. Smith
When they signed the Declaration of Independence, the Founders pledged their “lives … fortunes, and … sacred honor” to the political cause they were fighting for. They didn’t pledge their “lives, sacred honor, and fortunes up to an amount to be determined by Parliament and signed into law by the King.” And we shouldn’t so limit ourselves, either.
The ability to contribute financially to elect or defeat a candidate for office has long been recognized as a core First Amendment right. It is part of both our freedom of association – to join together with others to voice our views and accomplish our political goals – and our right to speak – to pool our resources to deliver a message to other voters. In the landmark 1976 case of Buckley v. Valeo, the Supreme Court noted that limits on political giving “operate in an area of the most fundamental First Amendment activities.”
Nonetheless, the Supreme Court has tolerated, and the states and federal government have regularly enacted, restrictions on this right. This month, the Institute for Free Speech, of which I am chairman, released the first installment of the Free Speech Index, measuring and ranking which states score best and worst when it comes to respecting the rights of their citizens to participate in political discussion and debate. This first installment ranks states on the basic right of citizens to contribute financially to electing or defeating the candidates of their choice.

Filed Under: Brad Smith, In the News, Published Articles

Washington Examiner: Don’t give the IRS personal information it doesn’t need (In the News)

By Bradley A. Smith
For many years now, the IRS has required nonprofits to report their major donors to the IRS on what is known as Form 990, Schedule B. Recognizing the sensitive nature of this information, however, charitable organizations are not required to make this information public, and the IRS is prohibited by law from making it public.
Unfortunately, the IRS is not always successful at keeping the information secret…
Moreover, this information can be used improperly within the IRS. Certainly, most IRS employees are fair and responsible, but it only takes a handful of bad apples to use this information to harass citizens for the views and causes supported by their charitable giving.
The form is also an administrative burden for charities. The Institute for Free Speech estimates that Schedule B repeal would save charities and other nonprofits an estimated $63 million in costs spent complying with the dictates of the form…
Rep. Peter Roskam, R-Ill., has taken a first step to ending abuses of privacy by introducing H.R. 4916, the Preventing IRS Abuse and Protecting Free Speech Act, which would reverse current law and prohibit the IRS from collecting this information. This legislation passed the House in the last Congress, but was not taken up in the Senate. Its best chance to pass this year will be through its inclusion in the omnibus budget bill currently being negotiated in both chambers.

Filed Under: Brad Smith, Newsroom, Published Articles

Can Clinton Campaign Be Indicted?

Special Prosecutor Robert Mueller’s indictment of 13 Russians for various violations of U.S. law pertaining to elections is drawing a lot of quick and often uninformed comment about campaign finance and lobbying laws. Today let’s start with this piece, which seems to be making the rounds: Does Mueller Indictment Mean Clinton Campaign Can Be Indicted for […]

Filed Under: Uncategorized, campaign finance, Christopher Steele, DNC, Foreign Agents Registration Act, FusionGPS, Hillary Clinton, indictments, Perkins Coie, Robert Mueller, Russians, Trump

The Center for Competitive Politics is now the Institute for Free Speech.