Daily Media Links 1/16: Our elections are in danger. Congress must defend them., Political Speech at the Polling Place: A Preview of Minnesota Voters Alliance v. Mansky, and more…

January 16, 2018   •  By Alex Baiocco   •  
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New from the Institute for Free Speech

Amicus Curiae Brief of the Institute for Free Speech in Minnesota Voters Alliance v. Mansky

The illiberal assumption behind Minnesota’s law-that Americans are incapable of knowingly being around those with whom they disagree-is unproven and irreconcilable with many of this Court’s cornerstone First Amendment precedents. 

These concerns are exacerbated by Minnesota’s failure to precisely define the expression it wishes to ban. By regulating clothing displaying venerable symbols of the American Revolution itself, and not merely advocacy for or against candidates on the ballot, the State shows that the word “political” has lost any clear meaning. This vagueness, which is particularly troubling in the First Amendment context, poses a trap for the unwary that must be remedied. 

The Court should facially invalidate the State’s ban. But, failing that, First Amendment interests can be protected through a narrowing construction prohibiting only messages that expressly advocate for candidates on the ballot.

Free Speech

FIRE: So to Speak podcast: “The Great Dissent” with Professor Thomas Healy

By Nico Perrino

Was our modern First Amendment born out of a chance encounter on a train bound for Boston in 1918?

On this episode of So to Speak: The Free Speech Podcast, we speak with Seton Hall Law Professor Thomas Healy. He argues that Supreme Court Justice Oliver Wendell Holmes’ unlikely run-in with Judge Learned Hand in the summer of 1918 set off a series of events that culminated in a new trajectory for the First Amendment in America.

Professor Healy is the author of “The Great Dissent: How Oliver Wendell Holmes Changed His Mind – and Changed the History of Free Speech in America.” The book explores how one man who claimed to disdain all constitutional rights ended up breathing new meaning into our first one.


Cato: Political Speech at the Polling Place: A Preview of Minnesota Voters Alliance v. Mansky

On February 28, the Supreme Court will hear oral argument in Minnesota Voters Alliance v. Mansky, an important First Amendment case that could clarify voters’ speech rights nationwide. Lead plaintiff Andy Cilek (executive director of the Minnesota Voters Alliance) voted in the 2010 election in a Tea Party T-shirt that said “Don’t tread on me.” Because Minnesota prohibits badges, buttons, or other insignia that promote a group with “recognizable political views,” at polling places an election official delayed Cilek from voting and took down his name and address for potential prosecution. Cilek sued to have the law struck down. Throughout litigation, the government has embraced the sheer breadth of Minnesota’s ban on political apparel. In addition to prohibiting Tea Party apparel, the ban extends to apparel featuring the logo of the Chamber of Commerce, AFL-CIO, NRA, NAACP, and countless other organizations that might be associated with a political viewpoint. Cilek asks the Supreme Court to invalidate the law as an overbroad restriction on expression. Cato filed a brief in this case, arguing that the Court should look with skepticism at a law, like Minnesota’s, that targets core political speech. Please join us for a discussion of one of the most important First Amendment cases of the year a few days before argument.

Date: February 22, 2018
Time: 12:00PM to 1:30PM


Washington Post: Our elections are in danger. Congress must defend them.

By Marco Rubio and Chris Van Hollen

Our bill, the Defending Elections from Threats by Establishing Redlines Act, would send a powerful message to any foreign actor seeking to disrupt our elections: If you attack American candidates, campaigns or voting infrastructure, you will face severe consequences…

Our legislation would require the director of national intelligence to issue a determination to Congress, within one month after every federal election, on whether any foreign government had interfered in that election.

The Deter Act also spells out actions that would elicit retaliation. A foreign power cannot purchase advertisements to influence an election, including online ads, or use social and traditional media – such as the thousands of trolls and botnets deployed by the Kremlin – to spread significant amounts of false information to Americans. They also cannot hack, leak or modify election and campaign infrastructure, including voter registration databases and campaign emails. Finally, no foreign power can block or otherwise hinder access to elections infrastructure, such as websites providing information on polling locations.

Because we know Russia has already employed many of these actions, the Deter Act would mandate a set of severe sanctions if the director of national intelligence should determine that the Kremlin had once again interfered in a U.S. federal election.

The Hill: Congress has been broken by the special interests – here’s how we fix it

By Stephen Spaulding

We need to fundamentally change how campaigns are funded. Citizen-funded elections would incentivize candidates to raise small contributions – in amounts like $10, $20 or $50 – and have them matched with limited public funds so that everyday Americans can run competitive elections without relying on deep-pocketed special interests. In exchange for access to the limited public funds, candidates agree not to solicit big checks from wealthy donors. Connecticut, Maine and New York City have these programs in place…

Of course, Citizens United poses its own challenges. Corporations, super PACs and other special interests can threaten elected officials with promises to spend vast sums of money defeating them – or helping to keep them in office. It happened with the tax bill…

Legislation introduced last year by Sen. Tom Udall (D-N.M.) and Rep. David Price (D-N.C.), the We the People Democracy Reform Act, puts versions of these solutions, plus many more, into one bill.

The States

Hartford Courant: Connecticut Legislature Must Restore Election Programs

By Carol Reimers and Jane Eyes

Cuts that weaken the Citizens’ Election program and State Elections Enforcement Commission under the current budget should be restored by the General Assembly when it returns to Hartford Feb. 7…

The Citizens’ Election Program, a nationally recognized program, provides public financing to qualified candidates for statewide offices and the legislature. Candidates must agree to abide by certain guidelines, including contribution and expenditure limits and disclosure requirements. The program helps put candidates on equal financial footing and helps to remove the fiscal impediment to running for office. Incumbents are seen to have an advantage in fund raising that makes it harder for challengers to mount an effective campaign.

Unfortunately, the Citizens’ Election Program was attacked in the last approved budget even though it has proven to be successful. In past elections approximately 75 percent of the candidates from both major political parties participated in the program. Provisions in the new budget tampered with the funding formula by: (1) raising the maximum contribution from $100 to $250 which favors incumbents who will be able to raise the basic required funds with less difficulty, putting challengers as well as candidates from less wealthy districts at a disadvantage. (2) The schedule was shortened to qualify for grants, which will hurt those who enter the race later in the process (primary challengers.)

Concord Monitor: Fix it, America

By John Pudner

Eric Cantor’s campaign outspent ours by a 40-to-one ratio; we won that election. Hillary Clinton outspent Donald Trump by a two-to-one margin; Donald Trump is now our president. But even though “donor-focused politics” has become a voting issue, it hasn’t slowed the fundraising. It seems like every special election sets new records for out-of-state, special-interest political spending. The politicians are still listening to their donors, not their voters.

A series of Supreme Court decisions, beginning with Buckley v Valeo and continuing through McCutcheon, created this problem. It’s time for American citizens to unite and fix it. We need to clarify that the original intent of the Founders when they wrote the 1st Amendment to the U.S. Constitution was to protect free speech – not to forbid any state from determining if they wanted to place any requirements on the practice of giving politicians and lobbyists campaign donations in exchange for your tax dollars…

New Hampshire has the opportunity to once again lead the country by starting the movement to pass the “Fix It America” constitutional amendment. The amendment would require Congress and state legislatures to address “the role of money in elections and governance to ensure transparency, prevent corruption, and protect against the buying of access to or influence over representatives.”

Alex Baiocco

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