Lawsuit challenges McCain-Feingold disclosure law

September 2, 2014   •  By Joe Trotter
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The Center for Competitive Politics today filed two lawsuits on behalf of a Colorado think tank saying that similar state and federal campaign finance disclosure laws are unconstitutional under the First Amendment.

The Independence Institute wishes to run two ads: one asking Colorado Senators Mark Udall and Michael Bennett to support a federal sentencing reform bill, and one asking citizens to contact Colorado Governor John Hickenlooper and urge him to initiate an audit of the Colorado Health Benefit Exchange.  The McCain-Feingold law, along with a similar state statute, effectively prevents the group from raising money for the ads.

“This situation shows the damage to free speech caused by carelessly written campaign finance laws” said David Keating, president of CCP.  “Instead of advocacy on an important public issue, there will be silence. That’s unacceptable under the First Amendment, and is the reason why we filed this lawsuit.

Colorado and federal law treat speech about public issues as campaign speech whenever a candidate is mentioned in a broadcast ad within 60 days of the general election. Groups must either file public reports with personal details about donors who have provided funds for the ads, or refrain from speaking. The result is what First Amendment advocates call a “chilling” effect on advocacy, depriving the public of important speech about issues of public importance.

“While the government may require disclosure for speech related to elections, a long line of Supreme Court cases protect the First Amendment right to speak about public issues while maintaining the privacy of speakers and their supporters,” said Allen Dickerson, CCP’s Legal Director, who is representing the Institute.  ”Congress and the state of Colorado have confused clear and honest discussion of the workings of government with ads supporting or opposing candidates. That distinction is vital in a democracy, where citizens have a right to have and express views on public policy without publically registering with the state.”

Donors and speakers have many reasons to protect their privacy. Some fear retaliation from government officials who disagree with them. Others fear physical harm or threats to themselves and their families, vandalism to their property, loss of jobs, or boycotts of their business if they support unpopular views. Some just value their privacy, or don’t want their contributions to spur numerous requests for assistance from other groups discussing other issues. Nonetheless, Colorado and federal law transform issue speech into campaign speech whenever a candidate for office is mentioned within two months of the general election. As a result, many groups choose silence over advocacy.

To protect its donors, the Institute asked the U.S. District Court of the District of Colorado to declare that the First Amendment forbids the state from regulating this ad. The Institute filed its lawsuit against the federal regulations in the United States District Court for the District of Columbia, requesting an order protecting the think tank’s right to speak without fear of violating its donors’ privacy.

Copies of the complaints are available here and here. A backgrounder on the litigation can be found here.

Joe Trotter

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