By Joe Albanese
Demonizing political spending justifies policies aimed at deterring the rich in theory but that actually burden ordinary citizens. For every wealthy donor attacked on the floor of the U.S. Senate, there are many other average Americans harassed because the law requires that their political giving be put online. For every program sending tax dollars to politicians to supposedly reduce the sway of big donors, there is an increased chance that corrupt candidates will find new ways to cheat the system. Worse yet, efforts to deter political participation leave more power for abuse by government agencies – witness IRS abuses against Tea Party groups or pre-dawn police raids over alleged “coordination” between candidates and advocacy groups in Wisconsin…
What would make America more democratic would be enabling more political speech and participation. The recent decline in campaign finance restrictions has coincided with the breakdown of traditional party elites. The result is a rise in independent speech and more people running for office. It is hard to argue in the era of Donald Trump and Bernie Sanders that elites have tightened their grasp on our elections.
By Joe Albanese
By Joe Albanese
The Austin City Council is the latest battleground over taxpayer financing of political campaigns. It tasked the Charter Review Commission with devising such a system for the city, on the theory that it will reduce funding gaps among candidates and improve voter turnout. In fact, not only would a tax financing system likely fail in these goals, but it would also undermine Austin residents’ freedom of speech and association.
The commission opted to endorse a system whereby residents would receive government vouchers to give to candidates, emulating a similar program in Seattle…
Although residents can choose which eligible candidates get their vouchers, those paying into the system do not have the choice to withhold their money. Having the right to support a candidate ought to imply a right to not support that candidate…
Although backers insist on following Seattle’s example, that city has not seen much success.
After just one year, the program has already seen its first fraud investigation. Inequality has only continued – a mere fraction of candidates qualified for vouchers in the first year, and they held a large fundraising edge over their opponents. It seems the biggest winners under the program would have done just fine raising money themselves.
And far from bringing more people into politics, the first year of Seattle’s voucher program saw below-average county voter turnout.
By David Keating and Thomas Wheatley
Wolff’s book is indisputably speech funded by a corporation and is scathingly critical of President Trump. Had the Citizens United turned out differently, the Federal Election Commission (FEC), with just an administrative sleight of hand, could have constitutionally placed Wolff’s publisher in the agency’s crosshairs.
It does not matter the book was released in January, far removed from any primary or general election. Express advocacy paid for by a corporation’s general treasury funds was banned regardless of proximity to an election. Although the book makes no explicit calls for voters to support or oppose Trump, it could easily be argued that it is the “functional equivalent” of express advocacy because it “is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.” And Trump has already declared his candidacy for 2020.
What’s more, when deciding whether a communication constituted express advocacy, the FEC, prior to Citizens United, looked for whether the communication took a position on an “office holder’s character, qualifications, or fitness for office.” …
Although Citizens United concerned an electioneering communication, the broader ban on corporations using general treasury funds for express advocacy struck down by the Court applied to all forms of media – including books.
By David Keating and Thomas Wheatley
When former U.S. Marine Corps officer Fane Lozman approached the lectern during a Riviera Beach City Council meeting to air his grievances as a citizen, he didn’t suspect he’d be hauled out in handcuffs.
Yet only a few seconds into his speech, that’s exactly what happened. His arrest triggered a First Amendment retaliation lawsuit now before the U.S. Supreme Court, which heard arguments last week. The case has important implications for citizen activists and journalists alike…
Now the court will decide whether probable cause for an arrest can stop such a retaliation claim.
For the sake of the freedoms of speech and press, the answer must be no. Instead, the court should consider the presence of probable cause holistically without automatically extinguishing a First Amendment claim.
Granting probable cause such weight gives government a powerful tool to punish critics. With so many laws on the books, it is often easy to find probable cause for an arrest…
Of course, none of this is to say that probable cause should never defeat a First Amendment retaliation claim. But it shouldn’t disqualify it. Let’s hope the court recognizes this and sides with Lozman.
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.
Arizona Republic: You don’t want your info published. Neither do nonprofit donors By Alex Cordell Efforts to force civic groups to disclose their donors constitute a real threat by exposing Arizonans to potential harassment for their beliefs. Many are fighting back against this encroachment on First Amendment rights. Others are making fun of it. State […]
By Zac Morgan
If you’ve ever scrolled through Facebook or Twitter, or taken a look at bumpers as you sat in traffic, you know Americans are expressive people. For this, we can thank the First Amendment, which protects even vulgar expression. Indeed, in 1971, the Supreme Court upheld the right of Paul Robert Cohen to wear his jacket, which urged sexual relations with the wartime draft, in a courthouse.
Today, the Supreme Court will hear arguments in a less salacious, but no less important, First Amendment case. Minnesota Voters Alliance v. Mansky asks whether Americans may be barred from wearing “political apparel” when casting a ballot. This policy led to a voter being threatened with prosecution for the “crime” of wearing a nonpartisan t-shirt inspired by the Gadsden flag, the “Don’t Tread on Me” symbol flown by patriots during the American Revolution.
Certainly, if the First Amendment protects profane apparel in a courthouse, Americans ought have the right to wear our opinions at the moment we the people decide who should govern…
At an absolute minimum, as my organization, the Institute for Free Speech, urged in our amicus brief in this case, the Supreme Court should instruct state and local governments to find the middle ground: Only apparel expressly urging a vote for or against a specific candidate on that day’s ballot may be excluded. This line, called “express advocacy,” has been applied and policed in campaign finance law for a generation.
Washington Post: West Virginians should reject a misguided call for less political speech (In the News)
By Thomas Wheatley
A 2013 study from the University of Massachusetts, for example, studied the negative effects of public disclosure laws on individual willingness to give and found startling results. “When some citizens believe that their contributions will be posted publicly on the Internet,” concluded the study, “they tend to cut back on donations or not give at all.” Individual citizens are especially cognizant of what the study calls “social influence theory,” and are vastly more likely to be fearful of public backlash in a way corporations are not. In West Virginia, even a $1 contribution is published online for all the world to see. In other words, enacting overbroad disclosure laws to diminish corporate influence in elections – as West Virginia has – may in fact aggravate the disparity…
Second, there’s little evidence that “getting the money out of politics” actually yields better government. Another 2013 study from the Institute for Free Speech, using data from the Pew Center on the States, found “no relationship between a state’s regulation of corporate or union contributions to candidates and the quality of management in a state.” In fact, of the 21 states that prohibited corporate contributions entirely, only three were considered “above average” in state management. Eight were deemed “below average.” Meanwhile, of the five highest-scoring states, three had no limit on election contributions by corporations.
By Thomas Wheatley
Donald Trump is hardly the first public official to want to get back at his critics using libel laws. If he sues the publisher of “Fire and Fury,” the book on his presidency, he’ll likely fail. It’s worth revisiting why…
In an opinion by Justice William Brennan, the court struck down Alabama’s law and instituted a new legal requirement of “actual malice” for defamation of public officials, a standard now familiar to all First Amendment lawyers…
Sure, the Times’ advertisement was not factually precise, but imagine if it had to be. Every Tweet or Facebook comment containing a single falsehood about a public official could be subject to ruinous liability. Citizens and groups would dare not speak and the discourse essential to our republic’s survival would grind to a halt…
Citizens United v. Federal Election Commission reinforced the vast speech protections enshrined into federal law by decisions like New York Times v. Sullivan. Although Sullivan dealt with libel law where Citizens United concerned an outright ban on speech, the relationship between the two is clear: Had the Court in 1964 decided the Times, a corporation, did not have the same free speech rights as an individual, defeating Jim Crow would have proven that much harder.
Concord Monitor: “Fix It America” constitutional amendment is latest attempt to undo First Amendment (In the News)
By Joe Albanese
Will the Twenty-Eighth Amendment be a repeal of the First? One proposed amendment might amount to that. It calls for sweeping regulations on the ability to practice free speech in politics, and even says its provisions can’t “be deemed in violation of freedom of speech rights.”
That should set off alarm bells in your head. It raises the question of why such a caveat is necessary in the first place. That exact phrase comes from the so-called “Fix It America” amendment (H.B. 1524), which was recently discussed in the New Hampshire House of Representatives, and written about in the Monitor by John Pudner of Take Back Our Republic.
The “regulations” referred to in that amendment come from a prior clause: “Congress and State Legislatures shall regulate the role of money in elections and governance…” This clause requires regulation of the spending of money on campaigns and policy advocacy (since it says the government “shall” regulate, not that it “may” regulate), which necessitates the restricting of your free speech. The reason is simple: in the modern era, you need to spend some money to spread your message to a large number of people – whether it’s placing ads or simply printing out fliers. Or for that matter, publishing a newspaper like this one.