New from the Institute for Free Speech
Preventing quid pro quo corruption by public officials is a laudable goal; it is necessary to the effective functioning of our democracy. But when the alleged “quid” is a campaign contribution, the First Amendment requires the government prove the quid pro quo corruption under the clear and objective test mandated by McCormick: that the government prove an explicit quid pro quo. 500 U.S. at 273. Laws regulating the making and receiving of political contributions operate in the most fundamental area of First Amendment concern. A political contribution is not a Ferrari or a Rolex; it is political speech expressing support for and association with a political candidate’s campaign. A standard focusing on an official’s beliefs about the subjective intent of a donor decreases the ability of all participants in the political process to determine what is proscribed, chilling speech that donors may believe comes too close to the restricted area. The Court should align the Seventh Circuit decision with the McCormick standard to protect fundamental First Amendment rights.
The Courts
Oregonian: State board concedes it violated free speech rights of red-light camera critic
By Maxine Bernstein
A state panel violated a Beaverton man’s free speech rights by claiming he had unlawfully used the title “engineer” and by fining him when he repeatedly challenged Oregon’s traffic-signal timing before local media and policymakers, Oregon’s attorney general has ruled.
Oregon’s Board of Examiners for Engineering and Land Surveying unconstitutionally applied state law governing engineering practice to Mats Järlström when he exercised his free speech about traffic lights and described himself as an engineer since he was doing so “in a noncommercial” setting and not soliciting professional business, the state Department of Justice has conceded.
“We have admitted to violating Mr. Järlström’s rights,” said Christina L. Beatty-Walters, senior assistant attorney general, in federal court Monday…
The judge said she will issue her findings in two to three weeks.
Both sides can then challenge the findings, and the matter would be referred to U.S. District Judge Anna J. Brown, who would decide whether to adopt the magistrate judge’s decision.
East Bay Times: UC Berkeley student group sues university for First Amendment violation
By Angela Ruggiero
The Young Americans for Liberty (YAL) chapter filed the lawsuit with the Oakland division of the U.S. District Court and names UC President Janet Napolitano, UC Berkeley Chancellor Carol Christ, and Stephen Sutton, interim Vice Chancellor of Student Affairs, among others. The lawsuit claims that by refusing to recognize the local chapter, it is a violation of the members’ First Amendment rights.
The lawsuit alleges that UC Berkeley officials said that the YAL is too similar to an existing group, Cal Libertarians…
The lawsuit points out that the school has approved other student groups in the past that seem similar, such as the Cal Berkeley Democrats and Students for Hillary at Berkeley.
“This discretion to discriminate is anathema to the First Amendment, and the marginalization of Young Americans for Liberty’s minority viewpoint not only offends the Constitution, it undermines the core of the University’s role in promoting the free exchange of ideas in the search for truth,” the lawsuit states.
Congress
The Hill: Congress could hardwire dark money into our democracy
By Ciara Torres-Spelliscy
The Honest Ads Act would do a lot to bring clarity to who is funding what in elections. But instead, Congress is largely on a path in the other direction hardwiring dark money into our elections.
The Congress – and here I really mean just a handful of members who are apparent zealots on the issue of keeping dark money dark like Majority Leader Mitch McConnell (R-Ky.) – has used the budgetary process to sneak in pernicious policy riders…
One policy rider that keeps making it into law is one that restricts the Securities and Exchange Commission (SEC) from making an anti-dark money rule. This prevents one part of the government from doing the right thing for investors and voters alike by letting us all know if a source of dark money is corporate.
The latest iteration of Congress enabling potentially more dark money instead of less is the move in the latest tax overhaul bill to eliminate the Johnson Amendment. This amendment keeps churches and other religious institutions out of politics. Right now, churches, synagogues or mosques that get involved in politics risk their tax exempt 501(c) status when they do. Getting rid of the Johnson Amendment would welcome mega churches into partisan fights and could create a new conduit for untraceable dark money in politics.
Daily Signal: The Differences House, Senate Will Have to Resolve to Advance Tax Reform Bill
By Rachel del Guidice
The House tax bill includes a repeal of the Johnson Amendment, a provision that was added to the tax code in 1954 that keeps churches from endorsing or opposing political candidates, as The Daily Signal previously reported. Some lawmakers have expressed support to include a repeal of the amendment in the final bill.
The Senate bill does not include a repeal of the Johnson Amendment.
Corporate Speech
Washington Examiner: The New York Times unwittingly proves that corporate free speech needs protection
By Eric Peterson
Despite the unusual nature of the editorial board’s advocacy, there is nothing wrong with the board members exercising their First Amendment rights to encourage citizens to contact their elected officials about an important issue. It is, in fact, this kind of speech that the First Amendment was designed to protect. Unfortunately, the New York Times editorial board doesn’t believe all corporations have the same rights as the New York Times does.
Publishing just hours after the Citizens United v. FEC ruling in January 2010, the editorial board raised the alarm that democracy as we knew it was over … “Disingenuously waving the flag of the First Amendment, the court’s conservative majority has paved the way for corporations to use their vast treasuries to overwhelm elections and intimidate elected officials into doing their bidding.”
Of course, nothing of the sort has come to pass, as corporate spending on politics continues to be a small portion of overall political spending.
Any editorial board can be forgiven for not accurately predicting the future. But the argument that when groups of people come together (which is precisely what a corporation is) they give up their First Amendment rights is not only wrong, it’s dangerous.
Donors
Politico: NRSC staffers resign after digital break-in
By Kevin Robillard
Two fundraising staffers for the National Republican Senatorial Committee who broke into the computer servers of the House GOP campaign arm resigned late last week, Republican sources said.
The staffers, Laura Kleffner and Krista Madaio, previously worked at the National Republican Congressional Committee. POLITICO first reported last week that the NRSC aides used their old NRCC passwords to collect information on more than 200,000 donors, according to three Republican sources…
Donor lists are valuable assets for party committees, key to raising the tens of millions of dollars needed to wage elections across the United States. The lists contain not only names, phone numbers and email addresses, but also information that could be used to entice donors, such as policy issues they’re interested in.
The States
Cadillac News: Some fear state campaign finance law will bring ‘dark money’ into local races
By Chris Lamphere
Jack McHugh, legislative analyst with the Mackinac Center for Public Policy, a conservative think tank, argued the privacy and security of individual donors in some cases must trump the need for transparency.
For instance, a Supreme Court ruling made in 1976 found that the National Association for the Advancement of Colored People wasn’t required to list their donors at the request of the state of Alabama.
Such an act would have been tantamount to releasing a “target list” for racist cronies of the state who opposed the work of the NAACP, McHugh said.
“Free speech does not require that the individuals be posted publically, along with the address where their children sleep at night,” McHugh said. “Without donor privacy, political free speech is deeply compromised.”
McHugh added that “it is hard to argue” that money doesn’t’ equal free speech, especially considering how much it costs to run a campaign or even just send out pamphlets.
“When Thomas Paine circulated ‘Common Sense’ in 1776, someone had to pay for that printing,” McHugh said.
