Holmes v. FEC

Petition for Writ of Certiorari

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…

This case is about contribution limits, which in and of themselves “impinge on protected associational freedoms” by “limit[ing] one important means of associating with a candidate” for public office. Buckley, 424 U.S. at 22. This Court has held that regulatory regimes imposing contribution limits are “subject to the closest scrutiny.” Buckley, 424 U.S. at 25. That test requires courts to “assess the fit between the stated governmental objective and the means selected to achieve that objective.” McCutcheon, 134 S. Ct. at 1445. But this Court has simultaneously required deference to Congress regarding contribution limits, holding that courts have “no scalpel to probe” the dollar amounts selected. Buckley, 424 U.S. at 30 (internal quotation marks omitted). In those cases, the government need only demonstrate that its selected limits are not “wholly without rationality.” Id. at 83…

Confusion in the standards of scrutiny applied to laws controlling campaign contributions only serves to chill protected rights of political speech and association. Only this court can clarify and thus secure those rights.

New from the Institute for Free Speech

Distrusting “Suspicious” Online Ads Is No Excuse for Restricting Americans’ Free Speech

By Joe Albanese

A new study is being hyped as evidence that the government needs to police the First Amendment on social media. This month, the Campaign Legal Center (CLC) and Issue One – two groups that advocate for greater political speech regulations – authored a press release touting a study by the research team of Professor Young Mie Kim of the University of Wisconsin-Madison. Dr. Kim, a Scholar in Residence at CLC, and her team examined political and issue ads on Facebook in the final weeks of the 2016 campaign and found that some “suspicious” groups were able to target certain users with paid ads. Despite the insistence of CLC and its allies, the study’s findings actually demonstrate that regulating online speech would represent a major overstep by the federal government in response to a relatively minor problem…

Overall, the study fails to make a convincing case that political and issue ads on social media represent a crisis for our political system. The legislative remedies to this situation – particularly the so-called “Honest Ads Act” – are more harmful to the free speech rights of American citizens than they are beneficial to American electoral integrity. The citizens who rely on the Internet for political speech the most – advocacy groups, grassroots activists, and ordinary voters who want to share opinions – have the most to lose if the Internet suddenly becomes a place where you need to comply with costly and complex regulations. Americans shouldn’t need to hire a lawyer to speak freely online, and those who want to safeguard electoral integrity must do so without infringing upon their rights.

Free Speech

Washington Post: Then they came for Peppa Pig

By Josh Rogin

As part of its global foreign influence campaign, the Chinese Communist Party is exporting that censorship and punishing U.S. companies and citizens that step out of line.

“Now the Party is increasingly exporting its authoritarianism abroad, trying to suppress speech, stifle free inquiry and seek to control narratives around the world,” Sen. Marco Rubio (R-Fla.) said at a recent hearing of the Congressional-Executive Commission on China. “America and other like-minded nations must contend with this long arm of China and the threat it poses to our open democratic systems.” …

American companies are unlikely to stand up for free speech online absent a clear U.S. government position and strategy, which does not yet exist. In 2009, Secretary of State Hillary Clinton called Internet censorship the modern version of the Berlin Wall. But in the ensuing decade, the State Department has dropped the ball.

There are several important steps the U.S. government must take now regarding China, said Sarah Cook, senior research analyst at Freedom House. U.S. officials should include Internet freedom in bilateral engagement with Beijing, point out that Chinese coercion of U.S. companies violates China’s World Trade Organization commitments, respond forcefully to any and all violations of free expression involving American companies or citizens, punish Chinese officials who commit abuses, and press U.S. companies to at least do no harm.

Political Advertising

New York Times: Google Will Ask Buyers of U.S. Election Ads to Prove Identities

By Daisuke Wakabayashi

Google will begin requiring those who buy ads related to federal elections in the United States through its sprawling advertising network to prove that they are citizens or lawful residents of the country.

In a blog post published on Friday, Google said it would take steps to verify if people or organizations are allowed to buy political advertising and ask them to prove that they are who they say they are. It will, for example, ask a political action committee for an Internal Revenue Service-issued employer identification number, or ask an individual for government-issued identification and a Social Security number…

Laws in the United States restrict foreign entities from running election-related ads.

The new policies pertain to advertisements featuring candidates for federal office or current office holders. The rules do not apply to candidates for state or local offices. The policies also do not apply to advertisements on politically charged issues – the types of topics that foreign agents used to sow division in the American electorate ahead of the 2016 elections.

Citizens United

Vox: Citizens United isn’t to blame for our money-in-politics woes

By Scott Casleton

Some cities and states are already experimenting with programs that strengthen the voices of ordinary voters. Building on such efforts is likely to have far greater effects than continuing to demonize Citizens, whose logic is defensible on First Amendment grounds…

Citizens is not responsible for the massive amounts of money showered on favored candidates. Nor is it responsible for the rise of so-called dark money in politics…

Citizens simply has not had the seismic legal impact that many think. Since Buckley protected money as speech, the only question was whether corporations were legitimate speakers. It may surprise some to hear, but the Court had already answered this question in 1978. In First National Bank of Boston v. Bellotti, the Supreme Court recognized a corporate right to free speech, concluding that the value of speech in the course of political debate does not depend on the identity of the speaker. Citizens simply followed the precedent of these two cases.

So when liberals intone that “corporations aren’t people,” thinking they are making a knock-down argument against Citizens, they miss the point. Citizens did not make corporations persons. And corporations do not need to be persons to receive First Amendment protections. Citizens upheld the liberty, provided by Bellotti, of corporations to speak, and they speak under the rules provided by Buckley…

By pursuing ballot initiatives and enacting local laws that address money in politics, we will invite legal challenges by entrenched, moneyed interests. This forces judges to issue ever more opinions on what is constitutional, justifying themselves along the way.

Candidates and Campaigns 

CNN: Rudy Giuliani doubles down: Trump didn’t violate campaign finance law in hush payment

By Alessia Grunberger and Clare Foran

“The President of the United States did not in any way violate the campaign finance law,” Giuliani, who recently joined Trump’s personal legal team, told Fox News’ Jeanine Pirro on “Justice with Judge Jeanine.”

“Every campaign finance expert, Republican and Democrat, will tell you that if it was for another purpose other than just campaigns, and even if it was for campaign purposes, if it was to save his family, to save embarrassment, it’s not a campaign donation,” Giuliani said. “And, second, even if it was a campaign donation, the President reimbursed it fully with a payment of $35,000 a month that paid for that and other expenses. No need to go beyond that. Case over.” …

Giuliani then issued a statement Friday that he said was “intended to clarify the views I expressed over the past few days.” …

“My references to timing were not describing my understanding of the President’s knowledge, but instead, my understanding of these matters,” Giuliani wrote. He asserted the payment would have been made “whether he was a candidate or not.”

The next day, Giuliani was on air again attempting to clarify his remarks. He said Saturday that he was new to Trump’s legal team, “So I’m not an expert on the facts yet. I’m getting there. But I am an expert on the law, and particularly campaign finance law. I’ve lived under it running for president. And the fact is there’s no way this was a campaign finance violation of any kind, nor was it a loan. It was an expenditure. This expenditure would have been made whether he was running for President or he wasn’t running for President.”

The States

Idaho Statesman: Idaho election heads asked to investigate ‘newspaper’ mailed to voters

By Kimberlee Kruesi, AP

The Idaho Democratic Party on Friday said the state should investigate a publication purporting to be a conservative newspaper because they argue it is really a cleverly disguised political campaign mailer.

In a letter sent to Secretary of State Lawerence Denney, the party is requesting his office look into a publication known as “The Idahoan,” which included more than 40 pages spread over two sections. The letter also demands that Denney should not be involved in the investigation because the publication’s co-editor and publisher Lou Esposito, a longtime political consultant, has close ties to the Republican politician.

The periodical states that it is “written by conservatives” designed to serve as a voter guide to the upcoming May 15 primary election. The publication has endorsements of far-right candidates, advertisements from conservative groups such as Idaho Chooses Life and editorials criticizing so-called “moderate” Republicans…

“This trickery and deceptiveness cannot be tolerated by your office, and The Idahoan and its backers should be investigated to ensure that all election and campaign laws have been complied with,” Sam Dotters-Katz wrote, the party’s attorney.