Analysis: Judicial Ads Act Proposes Unprecedented Expansion of Speech Regulation

July 29, 2020   •  By IFS Staff   •  
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Washington, DC – The Institute for Free Speech today published an analysis of the Judicial Ads Act (S.4183), a bill that would impose campaign finance regulations on speech about federal judicial nominations. The Institute’s analysis finds that this is “unprecedented and extraordinary” and, if adopted, likely unconstitutional.

“The Judicial Ads Act brings campaign finance regulation to the judicial nomination process. Courts have never sanctioned such regulation of speech outside of elections,” said Institute for Free Speech Senior Fellow Eric Wang, author of the analysis.

Under the Judicial Ads Act, any organization that spends over $50,000 in a calendar year on most forms of speech about judicial nominations will be forced to report to the Federal Election Commission. The group would be required to publicly identify any donor who gave $5,000 or more, even if the donations were made for other activities.

“[T]he sole goal of the Judicial Ads Act appears to be exposing the donors of groups supporting federal judicial nominees that the bill’s sponsors oppose for the purpose of ginning up public disfavor. This is decidedly not a legitimate justification for campaign finance reporting requirements. Indeed, it is precisely why the Supreme Court and lower courts… have recognized that such laws infringe on core First Amendment rights,” Wang’s analysis explains.

The Supreme Court has articulated three rationales for campaign finance disclosure requirements: informing voters of a candidate’s financial supporters, deterring corruption, and aiding in the enforcement of campaign contribution limits. None apply to speech about federal judicial nominations.

Federal judicial nominees are not candidates for election and cannot receive campaign contributions, so there are no voters to inform and no limits to enforce. The Supreme Court has also ruled that independent spending is not corrupting as a matter of law.

While the legislation would amend federal campaign finance law, the activity it regulates is closer to lobbying. The bill fails constitutional review under those standards as well. Courts have upheld narrow regulation of lobbying efforts aimed directly at members of Congress from groups whose main purpose is to pass or defeat legislation.

By contrast, the Judicial Ads Act “would indiscriminately apply to all groups speaking about judicial nominations, regardless of whether their advocacy on such nominations is ‘one of the[ir] main purposes,'” the analysis explains. “The bill also would require such groups to indiscriminately report their donors, regardless of whether ‘one of the main purposes of such contributions’ was to advocate on judicial nominations.”

The bill is also unconstitutionally vague. As Wang writes, “[u]nder the Judicial Ads Act, a group’s ad could trigger regulation as a ‘Federal judicial nomination communication’ even if it does not refer to a clearly identified judicial nominee. Such a broad and open-ended regulatory standard could apply to any speech that merely addresses an issue that impacts a judicial nomination, even if a group is not taking a position on the nomination itself.”

The Judicial Ads Act was referred to the Senate Judiciary Committee, where it has yet to receive a hearing. To read the analysis, click here.

About the Institute for Free Speech

The Institute for Free Speech is a nonpartisan, nonprofit 501(c)(3) organization that promotes and defends the First Amendment rights to freely speak, assemble, publish, and petition the government. Originally known as the Center for Competitive Politics, it was founded in 2005 by Bradley A. Smith, a former Chairman of the Federal Election Commission. The Institute is the nation’s largest organization dedicated solely to protecting First Amendment political rights.

IFS Staff

IFS Staff

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