Florida: Where the First Amendment Goes to Die: Part I-Contribution Limits

For most of us, Florida brings images of flamingos, mojitos, good fishing, and retirement.  For those of us defending the First Amendment, Florida is a constitutional wasteland.  In a good faith effort to regulate campaign finance, Florida has managed to build a system that, nigh-wholly root and branch, cannot exist in concert with the First Amendment.  This post is the first in a series analyzing the constitutional deficiencies of Florida’s regulations. 

In 2006, the Supreme Court held that Vermont’s contribution limits were so low  that were actively styming effective political competition and de facto suppressing the speech of political challengers.  The dollar amount considered too small? $400 for the governor’s race.  In Florida, a state with a population of 18.5 million, or about 30 times the size of Vermont, the maximum contribution to a statewide candidate in a primary or general election campaign is a paltry $500. 


Filed Under: Blog

Stifling speech – This Time in Court

In their aptly-titled piece “Silencing a Watchdog,” Anthony J. Franze and R. Stanton Jones of Arnold & Porter denounce the government’s effort to block the filing of an amicus brief by the Citizens for Responsibility and Ethics in Washington (CREW). Long story short: CREW does not buy the government’s case against John Edwards. The government argues that asking wealthy friends for cash to keep Rielle Hunter quiet was the same as accepting contributions exceeding the legal limits. And the government doesn’t want CREW’s dissenting arguments being made in court.

Amicus briefs (sometimes called ‘friend of the court briefs’) allow third parties to chime in on issues before a court.  Usually, these briefs point out other rationales or introduce new evidence that the parties may have missed or chosen not to argue. Amicus briefs ensure that the court gets a 360-degree view of the issues, and understands the full ramifications of a decision.  For example, CCP recently filed an amicus brief before the Ninth Circuit, arguing against contribution limits for recall committees, but using a different rationale from that argued by the appellee.

Because amicus briefs can be so helpful, most courts have a very permissive attitude toward permitting amici to file.  CREW is a frequent filer (often on behalf of the government); and their amicus brief in the Edwards case presents a compelling argument that the government’s novel case is simply bunk.  


Filed Under: Blog

Avoiding Intimidation and Harassment

I’m just spitballing here, but anybody who donates a few hundred bucks to a Presidential candidate: 1.) poses no risk of bribing them (after all, Rick Perry has informed us his price is far north of $5,000) and 2.) doesn’t need a retaliatory landlord or her unreasonable boss to know about the donation (“Paula gave to Thaddeus McCotter?  How embarrassing.”).  Unfortunately, Congress seems to disagree, and as a result, such a donation gets your name and address posted on the Interwebs. 

Fortunately, the Supreme Court has protected the right of donors to really unpopular causes from being exposed to the harsh glare of public scrutiny.  (Again, the McCotter donation does not count.)

Let’s say that we have an organization that is so unpopular and controversial, that the mere association of an individual with that group is enough to earn “threats, harassment, and reprisal” from members of the general public or from the government itself.  Since Buckley v. Valeo in 1976, these groups have been shielded from all government mandates that they disclose their donors.  Most case law supporting this constitutional principle focuses on the ever unpopular socialists, such as the Ohio Socialist Workers’ Party, a group which was hilariously infiltrated so thoroughly by the FBI that several Socialist Workers’ candidates for office were actually spies.

Filed Under: Blog, Disclosure, Disclosure Press Release/In the News/Blog

Onerous Disclosure Could Empower Corruption

Over at his blog, The Agitator, Radley Balko makes a few very good points about mandatory disclosure laws.

One point particularly stands out: the concern that overzealous political administrations might use tax collecting agencies to audit and harass contributors to committees or politicians of the “wrong stripe.”  

This got me to thinking.

Most of the nation’s current regimen of campaign finance dates back to the 1974 amendments to the Federal Election Campaign Act, amendments  that were passed in the wake of the Watergate scandal and the general ne’er-do-well-ism of the Nixon White House.  Contribution limits, disclosure laws…even the agency of the FEC itself, was created, in part, because of the misdeeds of President Nixon’s campaign during the
1972 election.

Well, what else did Nixon do?

He abused the Internal Revenue Service to go after his political opponents.

Filed Under: Blog, Disclosure, Disclosure Press Release/In the News/Blog

Colbert Is Funny, Our Disclosure Laws Are Not

As any fellow members of the Nation are doubtless aware, the latest way for college kids to get their name on television is to donate cash to Stephen Colbert’s Colbert Super PAC.  If you do so, your name will scroll at the bottom of the screen as one of the Super PAC’s “Heroes”.  It’s a nice way for a 19-year old GW student to get a new Facebook picture, and everybody who is giving is in the on the gag.  (D.B. Cooper also apparently gave.) All well and good.

Of course, Colbert could have done more than just scroll the names of the Super PAC’s donors.  He could have hunted the FEC database for those who gave more than $200 to candidates other than “Rick Parry” (with an A for America) and posted their names, addresses, employers and job titles on his website or scrolled the information on his show.  Not so funny anymore.

Filed Under: Blog, Disclosure, Disclosure Press Release/In the News/Blog, Super PACs, DISCLOSE, Disclose Act

Arizona Free Enterprise and free speech markets.

The Supreme Court’s latest 5-4 wrangling, Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett is a fine case of two jurists talking completely past each other.  Both opinions affirmatively cite Citizens United, Davis, and New York Times v. Sullivan.  Both opinions agree on the general framework of the First Amendment (“more speech good, less speech bad”).  And both opinions are utterly incoherent when paired against each other.

Filed Under: Blog

Sunlight Foundation makes your email really creepy.

In previous posts, I have hypothesized about groups using this data with Google Maps to create a “How Liberal Is Your Neighborhood” map.  Well, the Sunlight Foundation has gone one step further.  They have built a Gmail plug-in that, in their own words, “allows you to see the political contributions of the people and organizations that are mentioned in emails you receive. This easy-to-use tool can be used for researching influence background on corporate correspondence, adding context to newspaper headlines or discovering who is behind political fundraising solicitations.”  

The Foundation even brags “you can even see how your friends and family have given to political campaigns.”

What. The. Hell?

What’s next?  Being able to see the medical records of everyone I email with?  I want to make sure my first date with that lady I met at a bar isn’t carrying syphilis after all!

Filed Under: Blog, Disclosure, Disclosure Press Release/In the News/Blog

Tillman Act Lives For Another Day?

Fear not, defenders of “Pitchfork Ben” Tillman; the law against corporate, union, and associational contributions may (sadly) remain on the books for a while longer.

Filed Under: Blog, Completed Case, Litigation Blog/Press Releases, United States v. Danielczyk Other Links

Disclosure Laws Bring Implicit Threats

That sound you hear is the bat slapping against a Congressman’s hand.

Rep. Steve Chabot (R-OH) has proposed cutting foreign aid for countries that consistently vote against America’s interest at the United Nations. Chabot’s position mirrors earlier proposals by former UN ambassadors John Bolton and Jeane Kirkpatrick. The message is simple: “If we are giving money to countries consistently voting against our interest, we ought to cut them off.”

The logic is easy to see. And this is a perfectly normal response to disclosed information. After all, as Chabot might say, if we’re paying these countries, they damn better well stay bought.

Filed Under: Blog, Disclosure, Disclosure Press Release/In the News/Blog

Anonymous speech has its day in court

On May 9, 2011, Judge Dale Kimball of U.S. District Court for the District of Utah handed down a decision that affirmed the right to anonymous political speech.  The case, Koch Industries v. John Does, was about a spoof website created by an anonymous group of individuals associated with the environmentalist organization “Youth for Climate Truth”.  

The website in question was a satirical look at Koch Industries’ political position on climate change.  The site, now unavailable on the Interwebs, purported to Koch Industries’ own homepage and contained a fake press release announcing that Koch would no longer do business with any entity that denied anthropogenic global warming.  

The media quickly zeroed in on the hoax, and no outlet reported that Koch had changed its well-known political position on environmental science.  

Filed Under: Blog, Disclosure, Disclosure Press Release/In the News/Blog

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