Published Articles

Daily Caller: The Different Ways States Regulate And Protect Our First Amendment Rights (In the News)

By Scott Blackburn
To understand the differences in how states restrict citizens’ abilities to support their favored candidates and causes, the Institute for Free Speech categorized each of the 50 states’ contribution-limit laws and measured their impact on free speech. The result is the first of its kind “Free Speech Index.”
To those familiar with the politics of campaign finance law, the results may be surprising. Eleven states have no limits whatsoever on individual contributions to candidates. They include liberal Oregon and deep-red Alabama (both tied for first in the Index). They include the second most populous state, Texas (ranked 9th), and the third least populous state, North Dakota (ranked 9th). They include eastern states (9th ranked Pennsylvania), western states (1st ranked Utah), midwestern states (7th ranked Iowa) and southern states (1st ranked Virginia)…
Twenty-eight states have no restriction on how much an individual can contribute to a political party, among them liberal stalwart Washington (ranked 20th), conservative stronghold South Carolina (ranked 35th), and swing state Wisconsin (ranked 22nd). But West Virginia (ranked 49th) and Rhode Island (ranked 42nd) have decided to limit individual donations to parties to just $1,000. Massachusetts (ranked 44th) allows contributions from unions to candidates, but prohibits contributions entirely from corporations, while New Hampshire (ranked 39th) prohibits union to candidate contributions altogether and allows corporations to donate directly. Neighboring Vermont (ranked 21st) allows both unions and corporations to contribute.

Filed Under: In the News, Published Articles, Scott Blackburn

Evansville Courier & Press: Indiana among top states for political speech rights (In the News)

By Joe Albanese
The Institute’s Free Speech Index scores and ranks all 50 states on their laws governing political giving, grading them from A+ to F. Fortunately, Indiana ranked as one of the top states in the country, earning an A grade. This places it alongside 10 other states that earned an ‘A’ or higher. One crucial trait these states have in common is that they don’t limit the freedom of individuals to give to candidates, parties, and political committees, as well as the ability of parties and political committees to give to candidates…
Why is it so important that states like Indiana allow freedom in political giving to and between these groups? Because the main effect of government-imposed restrictions on political giving is to limit the amount of speech individuals, organizations, and political actors can express. Giving money is not just a show of support. It also enables candidates and groups to spread their message further.
That means stringent campaign finance laws tend to favor incumbents and hinder challengers… 
Lawmakers in Indiana deserve praise for preserving their constituents’ First Amendment freedoms. Many politicians find it easier to pass laws that make it harder for voters or rival candidates to criticize them. They do so while claiming they are protecting voters from the rich, when really, they are protecting themselves.

Filed Under: In the News, Joe Albanese, Published Articles

The Hill: Remembering a major victory for free speech, 40 years later (In the News)

By Thomas Wheately
The case, known as First National Bank of Boston v. Bellotti, challenged the constitutionality of a Massachusetts law that censored speech by corporations on ballot measures. The law included criminal penalties.
In a 5-4 decision, the Court struck down the law, reversing the Massachusetts Supreme Judicial Court. “We … find no support” the Court held, “for the proposition that speech that otherwise would be within the protection of the First Amendment loses that protection simply because its source is a corporation…” …
But that’s wrong – very wrong. For decades, the Supreme Court has recognized a corporation’s right to free speech. The Citizens United opinion alone cites 25 cases supporting this point, the first cited case being Bellotti, though it was not the first such decision. Nor, as some have suggested, has the Court ever recognized a so-called “media exemption,” which would grant press outlets full First Amendment protection, but not other corporations. Indeed, the Court has explicitly rejected that argument…
Americans of all political stripes have long reaped the rewards of the sort of corporate speech protected by Bellotti and earlier rulings. Take, for example, the civil rights movement.
In 1964, the New York Times defeated a dubious libel suit brought by white southerners in part because the newspaper, a corporation, was able to invoke First Amendment protection.

Filed Under: In the News, Published Articles, Thomas Wheatley

Washington Examiner: Maryland lawmakers voted to criminalize online speech in the name of security (In the News)

By Eric Wang
More than a thousand students gathered at the Maryland state capitol in March as part of the national “March for Our Lives” demonstrations against school shootings. Presumably, these students used the Internet, social media, or mobile device apps to organize their rally.
In so doing, they may have committed a crime under an obscure Maryland law.
Instead of fixing this flawed speech law, the Maryland General Assembly recently passed a bill to reenact and expand it. The legislation purports to counter foreign online political propaganda. But in reality, the new burden it would place on Marylanders’ Internet speech threatens our First Amendment rights. Gov. Larry Hogan, R, should veto the bill.
At issue is HB 981, the so-called “Online Electioneering Transparency and Accountability Act.” If signed into law, the bill would reenact the state’s existing regulation of “campaign material.” The term includes any “material transmitted by or appearing on the Internet or other electronic medium” that “relates to” a candidate, prospective candidate, ballot measure, or prospective ballot measure. If you think about it, that includes just about anything…
It is bad enough that HB 981 would reenact Maryland’s unconstitutional speech law. But the bill would make matters even worse by imposing a whole host of additional reporting and record-keeping requirements. 

Filed Under: Eric Wang, In the News, Published Articles

American Thinker: Is Your State Restricting Your Ability to Support Candidates? (In the News)

By Luke Wachob
A new report by the Institute for Free Speech grades the states on political giving freedom and offers the clearest picture to date of how states limit contributions to candidates, political parties, and political action committees. These limits make life difficult for upstart challengers and others who lack a pre-existing base of financial support. But exactly how cumbersome they are varies tremendously from state to state.
Consider a candidate for the Colorado General Assembly. Despite the fact that many of these candidates will have to campaign in the expensive Denver media market, they can accept no more than $200 per election from individuals. In addition, corporations and labor unions are prohibited from giving any money to candidates. Cross the border in neighboring Nebraska, and it’s a totally different story. The Cornhusker State has no contribution limits at all, allowing individuals, groups, businesses, and unions to donate as they please.
The pattern repeats across the country. One state will impose low limits across the board, while a neighboring state has no limits whatsoever, and yet another has a mix of moderate limits on some kinds of giving. So it is that a candidate in Virginia faces no limits on contributions from individuals, while a candidate in West Virginia is limited to $1,000 per donor. A candidate for the South Dakota House of Representatives can also accept no more than $1,000 per individual, while a candidate in North Dakota can accept unlimited amounts, just like in Virginia.

Filed Under: In the News, Luke Wachob, Published Articles

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

Reason: From Washington to Wisconsin, States Are Punishing Dissent (In the News)

By Alex Cordell
Just over a year ago, after the Trump administration gave the green light to move forward with construction of the Dakota Access Pipeline, an activist group called Red Line Salish Sea staged a peaceful protest in Bellingham, Washington…
The county prosecutor’s office responded with a disorderly conduct and reckless endangerment investigation of the demonstrators. To uncover their identities, officials repeatedly attempted to obtain a warrant for private information from the group’s Facebook page…
The first two warrant applications were withdrawn after the American Civil Liberties Union and Facebook fought back, noting that they would chill political speech and association. So county prosecutor David McEachran went to the feds, and the Department of Justice chimed in with tips on how to craft a warrant to pass constitutional muster.
Third time was the charm. Must be nice to have friends in high places…
Abuses of this sort aren’t limited to one side of the political aisle, as a group of conservative citizens in Wisconsin know all too well. Their own saga began around 2010, when the Milwaukee County District Attorney’s Office opened a secret probe into the Milwaukee County Executive’s Office, run at the time by then-gubernatorial candidate Scott Walker.
Three years later, Wisconsinites affiliated with right-of-center groups that had supported Gov. Walker’s collective bargaining reforms had their homes raided by police officers in full riot gear before dawn.

Filed Under: Alex Cordell, 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

Fredericksburg Free Lance-Star: Virginia ranked A+ for political free speech rights (In the News)

By Joe Albanese
Imagine that you lived in a state where it was illegal to express too much support for a candidate. Such a law would be a blatant violation of the First Amendment. The ability to support causes and candidates of one’s choice is key to participation in a democratic society.
Yet many states place limits on one of the most impactful ways to do so: donating money to campaigns and political groups.
For those without the time to work or volunteer in politics, this outlet is especially important. As a new Index from the Institute for Free Speech shows, state laws that limit contributions to such groups effectively restrict Americans’ First Amendment rights.
The Institute’s Free Speech Index scores and ranks all 50 states on their laws governing political giving, grading them from A+ to F. Fortunately, Virginia is ranked as one of the top states in the country, earning an A+ grade.
This places it alongside 10 other states that earned an ‘A’ or higher.
One crucial trait these states have in common is that they don’t limit the freedom of individuals to give to candidates, parties and political committees, or the ability of parties and political committees to give to candidates…
Giving money is not just a show of support. It also enables candidates and groups to spread their message further.

Filed Under: In the News, Joe Albanese, 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

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