New from the Institute for Free Speech

Florida Couple Takes First Amendment Challenge to Supreme Court

The Institute for Free Speech today announced it has asked the U.S. Supreme Court to review the ruling in Holmes v. Federal Election Commission by the U.S. Court of Appeals for the D.C. Circuit. The case challenges the timing of federal contribution limits, but not the amount.

“Current law allows a federal candidate to receive up to $5,400 from a donor throughout an election cycle. Of this total, however, only $2,700 may be contributed during the general election. The government has never provided a reason for imposing this restriction on the timing, rather than extent, of an individual’s ability to associate with candidates,” said Institute for Free Speech Legal Director Allen Dickerson.

In 2014, a Florida couple – Laura Holmes and Paul Jost – wished to donate to challengers of some incumbent members of Congress. Holmes and Jost, citing language from the Supreme Court’s 2014 opinion in McCutcheon v. Federal Election Commission, argue that Congress has permitted the giving of $5,400 over an election cycle. Simply because the couple prefers not to get involved in primary contests is no reason to halve their right to make a contribution…

Imposing separate contribution limits for primary and general elections gives an unfair advantage to candidates who run unopposed in primaries. It also arbitrarily restricts the speech and association rights of donors who want to give during a general election. The Institute for Free Speech’s brief asks the Supreme Court to secure First Amendment rights to support and associate with candidates.

Petition for Writ of Certiorari with U.S. Supreme Court in Holmes v. FEC

This petition asks the Court to provide a definitive ruling on the standard to be used in evaluating claims of unconstitutionality where political campaign contributions are concerned. As things stand now, it is unclear whether courts should closely scrutinize the government’s choice to impose a particular restriction, or instead broadly defer to legislative judgment. That confusion led the D.C. Circuit below to issue an opinion expanding judicial deference and approving a patently unreasonable result…

To protect the First Amendment’s political rights, this Court created a distinct system of constitutional review for campaign finance laws. That system, however, is beset by internal contradictions and confusing similarities to the traditional tiers of scrutiny. Since Buckley, this muddled approach has failed to guide the lower courts, and in particular has failed to adequately safeguard the First Amendment interests inherent in the regulation of political speech and association. The exacting scrutiny-indeed, the judicial skepticism-Buckley required is often difficult to glean from the formulaic, deferential campaign finance opinions that now fill the federal reports.

Event

Capital Research Center: The Citizens United Decision: How Has It Changed the Flow of Funding to American Politics?

Join leading practitioners and experts in political and public-policy giving to discuss an unprecedented study of the ways that the Supreme Court’s controversial Citizens United decision has (or has not) affected big-dollar giving in three distinct areas: direct campaign contributions; funding of Super-PACs and other independent groups that were boosted by Citizens United; and donations to traditional 501(c)(3) public policy groups like think tanks.

The study from the Capital Research Center will be discussed by its lead author, Michael E. Hartmann, Director of the Center for Strategic Giving at CRC and previously a top staffer at the large, center-right Bradley Foundation in Milwaukee.

He will be joined by Gara LaMarche, who leads the Democracy Alliance, the largest left-of-center donor group in America, founded by George Soros; & David Keating, President of the Institute for Free Speech, the nation’s largest organization dedicated solely to protecting First Amendment political speech rights, and “the man who invented the SuperPAC,” according to Time magazine. William A. Schambra, a Senior Fellow at the Hudson Institute where he has served as director of its Bradley Center for Philanthropy & Civic Renewal, will moderate the event.

Date: Wednesday, February 28

Time: 11:30 AM – 1:00 PM

Location: National Press Club

Supreme Court

NPR: The Curious Case Of A Florida Man Who Called Politicians Corrupt, Got Thrown In Jail

By Nina Totenberg

It’s not that uncommon to hear someone complaining that politicians are corrupt. But you wouldn’t expect to be thrown in jail for it.

That’s exactly what happened to Fane Lozman at a city council meeting in Florida.

On Tuesday, that arrest gets to the U.S. Supreme Court, and it could have implications not just for Lozman, but for the limits of First Amendment protections of freedom of speech…

As the briefs in the case indicate, Lozman’s experience is hardly unique.

Indeed, more than two dozen media organizations have filed a brief pointing to similar problems encountered by reporters and photographers engaged in everything from investigative journalism to covering demonstrations.

While arresting journalists for critical coverage may be the hallmark of repressive regimes, and rarely happens in the United States, the brief observes, “It does happen.”

The brief, points, for instance, to Arizona Sheriff Joe Arpaio’s arrest of the publishers of the Phoenix New Times for publishing articles that probed the sheriff’s commercial real estate holdings.

Reuters: U.S. top court to mull rules on what voters can wear to polls

By Andrew Chung

Political activist Andy Cilek arrived at his local polling site in Eden Prairie, Minnesota, on Election Day in 2010 wearing a T-shirt touting the conservative Tea Party movement with the words “Don’t Tread on Me” as well as a button stating, “Please I.D. Me.”

His attire was enough to get him stopped in his tracks by a poll worker because Minnesota law forbids voters from donning political badges, buttons or other insignia inside polling places during elections. Cilek eventually was permitted to vote, but the confrontation became a key part of a legal challenge that reaches the U.S. Supreme Court on Wednesday… 

In a brief filed supporting Cilek’s group, the ACLU warned against allowing poll workers discretion to decide what is impermissibly political.

“A phrase that one person may consider to be innocuous or nonpolitical — like ‘#MeToo’ — may appear to another to be an overtly political statement,” the ACLU said…

“On the one hand, the Supreme Court has recognized that areas immediately around polling places can be zones free of politics,” said Richard Hasen, a University of California, Irvine professor specializing in election law. “On other hand, Minnesota’s law appears quite broad.”

Time: The Supreme Court Is Considering the Limits of Freedom of Speech in 3 Upcoming Cases

By Tessa Berenson

Can government employees be required to pay union fees, even if they don’t belong to the union? Can you wear a “Don’t Tread on Me” T-shirt to a polling place? And do pro-life crisis pregnancy centers have to advertise that abortions are available elsewhere?

Each of these questions is at the crux of a case the Supreme Court will hear in the coming weeks. And while the particular facts differ, each gets to a dispute over one of the fundamental rights in American society: freedom of speech, and specifically whether it includes the right to avoid compelled speech.

Independent Groups

The New Yorker: Robert Mueller’s Distinctly American Indictments

By Amy Davidson Sorkin

The 2010 decision in Citizens United, and in cases that followed, has yielded a glut of dark money.

As a result, we’ve come to expect that ads, even for candidates we like, will be paid for by groups with vague names that give no real clue as to who is behind them. Our curiosity has been numbed, even as our political imagination has been frazzled by the endless conspiracy theories that such organizations push. Specific measures to increase transparency, like better screening of advertisers by Facebook and Twitter’s recent purge of bots, might help. Larger measures, such as promoting digital literacy and civics education, take time. But, while social media and bots are the engine, money is the fuel, and there isn’t likely to be a real solution to that without comprehensive campaign-finance reform. The crassness of the dealings documented in the Mueller indictments reflects a political culture in which foreign countries, as well as Americans, routinely pay millions to influence politicians, whether through lobbying firms or PACs. Meanwhile, it wouldn’t be surprising if, in the 2020 election, some super PACs referred to the Mueller indictment as a guide for using social media to organize fake grassroots initiatives.

The States

Reason: Georgia Lt. Gov. To Delta: No NRA Discounts, No Corporate Welfare

By Christian Britschgi

“I will kill any tax legislation that benefits Delta unless the company changes its position and fully reinstates its relationship with NRA,” Cagle said on Twitter today. “Corporations cannot attack conservatives and expect us not to fight back.”

The Atlanta-headquartered Delta had previously extended a group travel discount of 2 to 10 percent to NRA members traveling to the organization’s national conference to be held in Dallas in May.

On Saturday, Delta said via Twitter that it would be ending these discounts and asking the NRA to remove any information about Delta and its travel programs from its website.

Several corporations, including United Airlines and Enterprise Rent-A-Car, have likewise pulled special discounts they have given to NRA members in response to pressure from activists demanding companies cut ties with the organization…

Some have offered criticism of Cagle for threatening to punish a company through the withholding of state benefits solely because of their political expression…

[M]aking opposition to corporate welfare contingent on whether businesses themselves hand out special deals to favored interest groups sounds less appealing.

Seattle Stranger: Google Hands Notebook Full of Political Ad Data to the City of Seattle

By Eli Sanders

On February 22, more than two months after Google was officially told to comply with Seattle’s unique law on election ad transparency, a binder full of digital ad details arrived on the desk of Seattle Ethics and Elections Commission director Wayne Barnett.

The roughly 60-page binder of previously unavailable Google ad info is notably different from the meager disclosure that Facebook sent Barnett in early February. (“Their two-page spreadsheet,” Barnett said of Facebook, “doesn’t come close to meeting their public obligation.”)

Whether Google’s binder fully meets the requirements of Seattle’s law remains to be seen. I have yet to page through the full binder myself. Barnett, for his part, is still evaluating its contents.

Facebook’s disclosure back on February 2 was full of problems. Google, in a letter to Barnett, admits that its binder of political ads from the 2017 Seattle municipal elections is incomplete due to certain information not being “readily available” when it comes to “a small number of ads.” But the company says it is working to remedy those omissions.