“This is a sad day for the freedom of speech.” So began Justice Scalia’s dissent in the Supreme Court’s now-infamous decision in McConnell v. FEC, in which the Court upheld some of the most restrictive campaign finance laws ever, including a provision that bans some groups from running ads that mention candidates.
Since then, many people have asked us what is left to fight about in this area. Didn’t free speech lose? Isn’t the fight over?
The answer is a resounding, “No!”
Just as the Supreme Court’s decision in Kelo did not end the fight over property rights, so the McConnell decision did not end the fight over political speech. In fact, the Institute for Justice has been devoting more resources to campaign finance cases over the last few years, and we will continue to protect First Amendment rights.
Campaign finance laws infringe upon the First Amendment freedoms of all Americans, not just politicians and political parties.
One of the main reasons political speech restrictions have spread is that the public does not understand how the laws actually work. Most people assume that politicians are corrupt and that campaign finance laws are necessary to combat that corruption. But few know much about the laws themselves or their consequences in the real world. To address this, IJ focuses on cases that show how campaign finance laws infringe upon the First Amendment freedoms of all Americans, not just politicians and political parties.
Our strategy is simple: challenge the expansion of these laws, slowly but surely chip away at the court decisions that have allowed government to curtail our basic First Amendment freedoms, and expose campaign finance laws for what they really are-—political speech restrictions.
For example, in Sampson v. Coffman, IJ is representing Karen Sampson and five other residents of her Colorado neighborhood who were sued under campaign finance laws for engaging in the most basic political speech: a grassroots effort to oppose a plan to annex their neighborhood into the nearby town. In Independence Institute v. Coffman, IJ represents the Colorado-based free market think tank that found itself in the same position after criticizing two controversial state tax and finance referenda.
These two cases demonstrate that everyone has something to fear from campaign finance laws. If a small group of concerned citizens in Parker, Colo., can be sued simply for talking to neighbors and printing lawn signs, then anyone can face the same harassment.
“Our strategy is simple: challenge the expansion of these laws, slowly but surely chip away at the court decisions that have allowed government to curtail our basic First Amendment freedoms, and expose campaign finance laws for what they really are—political speech restrictions.”
These cases also show the real costs of campaign finance laws. For the sake of “disclosure,” individuals and groups who exercise core rights to speech and association must register with the government and disclose the identities, addresses and sometimes even employers of their supporters. Worse still, they can be sued by vindictive political opponents, threatened with fines and forced to hire lawyers to defend themselves.
IJ’s cases also demonstrate the inevitable consequences of expanding political speech restrictions. For instance, in San Juan County v. No New Gas Tax, the IJ Washington Chapter is protecting freedom of the press by defending an initiative campaign against the claim that it failed to report the favorable commentary of two talk radio hosts as “in-kind” contributions. Because of a law that limits contributions during the last three weeks of an election to $5,000, the case raised the very real prospect that the radio hosts would be muzzled. Supporters of so-called reform have long claimed that the laws would never threaten freedom of the press. As this case shows, that claim is naive at best.
In Arizona, IJ is challenging the state’s public financing scheme for political campaigns. (See the extended feature about our latest argument in this case on page 11.) Offered as the solution to the alleged shortcomings of privately funded campaigns, public financing schemes in fact coerce candidates to accept what the U.S. Supreme Court has repeatedly ruled unconstitutional—limits on what they can spend to get out their message.
IJ also files amicus briefs in major cases to demonstrate the damage campaign finance laws have done to the First Amendment. This term, we will file a brief in FEC v. Wisconsin Right to Life, in which the U.S. Supreme Court will address whether McCain-Feingold’s ban on ads that mention candidates within 30 days of a primary or 60 days of a general election can be applied to grassroots lobbying ads—that is, ads that have nothing to do with an election and instead simply ask people to contact representatives and express their views about issues pending before Congress. The case represents the first opportunity to show the Supreme Court that it went too far in McConnell and that regulating money in campaigns unconstitutionally restricts core political speech.
Complementing these legal efforts, IJ is also spearheading cutting-edge research. Dick Carpenter, IJ’s director of strategic research, is currently working on one study that examines the impact of disclosure laws on the likelihood that people will contribute to ballot issue campaigns and another that examines the true costs of complying with reporting obligations. (See more about the first of these studies on page six.) Both studies will figure prominently in current and future cases.
Campaign finance laws pose one of our nation’s gravest threats to free speech. These laws have gained ground largely because the public and the courts have not recognized the supreme importance of free speech and the severity of the threat to political speech. With IJ’s continuing battle against campaign finance laws, that will change.
Steve Simpson is an IJ senior attorney.