Campaign Finance

Federal Judges Overturn Speech-Chilling Regulation of Grassroots Activists

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Yesterday the Institute for Justice won two First Amendment victories in cases that illustrate how campaign finance regulations, ostensibly aimed at preventing wealthy special interests from buying access to the levers of government power, end up squelching the voices of grassroots groups and amateur activists.

One decision involved Mississippi regulations that apply to anyone who spends $200 or more on speech related to inititiatives aimed at amending the state constitution. The case was brought by Vance Justice and four other Oxford residents who wanted to make the case for Initiative 31, an eminent domain reform inititative, but discovered that merely buying a quarter-page ad in the local newspaper would require them to register as a "political committee." The rules for political committees are so complicated, U.S. District Judge Sharion Aycock observes, that "a prudent person might have extraordinary difficulty merely determining what is required." Aycock adds that "potential speakers might well require legal counsel to determine which regulations even apply, above and beyond how to comport with those requirements." She concludes that the public interest in keeping tabs on groups like Justice and his friends cannot justify this regulatory burden.

"We just wanted to inform our neighbors about Initiative 31 and government abuse of eminent domain—an important issue that affects everybody," Justice says in an I.J. press release. "Instead, we wound up learning a lesson in how campaign finance laws chill free speech—also an important issue that affects everybody. We are all thankful that Judge Aycock looked at the real-world effects of these laws and protected our constitutional rights."

The other decision involved Arizona regulations that ensnared Dina Galassini, a Fountain Hills resident who tried to organize a small protest against a local bond issue by sending letters to a couple dozen friends and neighbors, inviting them to show up with homemade signs. As U.S. District Judge James Teilborg puts it, "She was about to feel the heavy hand of government regulation in a way she never imagined." Galassini soon received a letter from the town clerk, who warned her she had better stop exercising her First Amendment rights until she had registered with the government as a political committee. "I was stunned to learn that I needed to register with the government just to talk to people in my community about a political issue," says Galassini. " All I could think was, 'How can this be allowed under the First Amendment?'" 

Teilborg wondered the same thing, ultimately concluding that it could not. "It is not clear that even a campaign finance attorney would be able to ascertain how to interpret the definition of 'political committee,'" he observed, deeming it unconstitutionally vague because "people of common intelligence must guess at the law's meaning and will differ as to its application." Even if the state's interpretation were accepted, Teilborg added, it would be overbroad "because it sweeps in a substantial amount of constitutionally protected speech without any sufficiently important governmental interest in regulating such speech." He explained the impact that such regulations have on groups of modest means:

Under this statutory scheme, any time two or more people want to engage in core political speech to influence the results of an election, they will be chilled from doing so because Arizona's definition of political committee is vague and because the regulations imposed on small groups that seek to combine to influence the results of an election are not substantially related to the State's disclosure interest….

The practical effect of such regulations for small groups makes engaging in protected speech a "severely demanding task."

Both of these cases raise issues similar to those posed by Worley v. Florida Secretary of State, which the Institute for Justice has asked the U.S. Supreme Court to consider. Florida's law transforms people into political committees once they spend $500 to advocate passage or defeat of a ballot initiative. "If the Supreme Court takes the case," I.J. says, "it could set nationwide precedent protecting the rights of ordinary Americans to speak without having to comply with burdensome campaign finance laws." 

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  1. Sullum wins the alt-text cup for the day.

    1. Hardly sufficient. Demands a greater prize.

  2. They always choose The Little Guy for their arguments. How about the injustice of Sheldon Addleson not being able to buy the Republican party, with the money he “earned.” I’m not saying we should pass campaign finance reform, but the control of our politics by the rich is not a good thing.

    1. Agreed. Let’s severely diminish the government’s ability to take peoples’ money away and pick economic winners and losers, then rich people and companies will have no incentive to buy politicians.

      Also we can stop making it worse by paying elected officials a federal salary. States can pay their congressional delegations whatever they want, but the President and VP get nothing more than free room and board.

      1. This

      2. And stop giving government prosecutors a monopoly on prosecution. Let anyone covered by a law file a lawsuit against with exactly the same process as if a government prosecutor had done so.

        1. One condition; quit giving politically approved prosecutors carte blanch. Let the MF’ers be held responsible for their behavior. How many prosecutors have walked away from clearly flawed and biased cases, with no penalty? Hold agents of the state responsible for their clearly illegal line-crossing.

    2. How about the injustice of Sheldon Addleson not being able to buy the Republican party, with the money he “earned.”

      This is a dumb argument for many reasons. Shall I count the ways?

      1. If Addleson bought the Republican party (I notice you don’t mention rich liberals like the Tides Foundation or Soros buying Democrats, which I’m sure is just an oversight and not indicative of any bias on your part) then it would be totally irrelevant unless lots of people voted for the Republicans he supported. If people voted for those Republicans, then clearly those ideas had popular support. Who are you to deny people the opportunity to vote for ideas that you disagree with?

      2. There’s no evidence money helps win elections. Yes, the person who spends the most usually wins, but all the evidence seems to show that this is because he has the most donors not the most money. People who spend lots of money on their own campaigns (Meg Whitman, Ross Perot) almost always lose. This means that money doesn’t matter, number of donors does.

      3. The rich will always control politics. In Greece, where they have less private spending on elections, the rich control politics just as much as in the United States. They just do so through corruption, cronyism and job opportunities. Trying to stop the rich from wielding political power is like telling the tide not to go in. I shouldn’t have my speech curtailed so that the left can fail to control rich people.

      1. 1. People are stupid. Previous generations of Americans understood that.

        2. Because donors vote en masse for the candidate? Donors will always be a small percentage of the population. In a close race, money matters.

        3. Of course, that is a consequence of the stupidity of the people. But it is a matter of which elites you want, and the Sheldon Addlesons of the world do not have the best interests of their people at heart, the way, say, Israel’s politicians do.

        1. Isn’t Sheldon Adelson the guy who backed Newt Gingrich in the primaries? How’d that turn out for him?

          1. And notice what positions Gingrich took. Coincidence? I think not. He later backed Romney and backed many Republicans who supported the policies he desired.

            1. AND HE LOST. Which again, proves my point. You don’t win with money. You win with votes. Gingrich lost. Who cares if Adelson influenced his thinking? He LOST with that thinking.

            2. Well no shit, you’re telling me a guy donated money to politicians who supported policies he did? Holy fuck, mind blown!

        2. This post is dumber than the first.

          1. People are stupid. Previous generations of Americans understood that.

          Yes, and you’re proof that people are stupid. If your argument is that people are easily manipulated, why stop at money? Why not control the media? Media bias obviously impacts the way people vote, so should we outlaw certain types of speech from media figures during elections? By your logic we should. If Oprah endorses a candidate, it helps a great deal. So should we make it illegal for someone with a T.V. show to publicly endorse a candidate? By your logic, yes we should.

          2. Because donors vote en masse for the candidate? Donors will always be a small percentage of the population. In a close race, money matters.

          NO! The point is, someone with more donors probably has more support in the general population. That’s why victory is correlated with donors, not raw money.

          3. Of course, that is a consequence of the stupidity of the people. But it is a matter of which elites you want, and the Sheldon Addlesons of the world do not have the best interests of their people at heart, the way, say, Israel’s politicians do.

          Is this a joke? This is American, isn’t it? I can tell because you used Israel as your example.

          Yeah, Israel really seems to have the best interests of Palestinians at heart. Thank God they don’t have lots of private election donations! Then they might be oppressive!

          1. “Is this a joke? This is American, isn’t it? I can tell because you used Israel as your example.”

            My thoughts exactly

      2. There’s no evidence money helps win elections

        In fact there is an it is well documented, the fact that you would say this tells me you are more interested in ideology than in the facts.

        1. No, what’s well documented is that winners on average have more money in donations. That could be because the money helps them win, or it could be because donors like to give to winners.

          Money seems to help, up to a point. Beyond that, it really doesn’t

          Adding to that self-funded really rich candidates don’t seem to do that well. That implies that having people willing to give you money seems to be a better sign of winning than just having a ton of money.

          That’s what the facts seem to show. Your claims seem to go beyond the facts to an ideology.

          1. More money flows to winners, and that
            is the story, period. Check out all the people whose self-funding outstripped contributions, they lost! Yet people whose fundraising outdid their opponents won. Let’s see, now, what lesson can we draw from this? Democracy in action ain’t always pretty, but you either like it or you don’t. You don’t get to switch sides depending on how it turned out.

        2. In fact there is an it is well documented, the fact that you would say this tells me you are more interested in ideology than in the facts.

          I don’t think you can read. Here’s what I said.

          2. There’s no evidence money helps win elections. Yes, the person who spends the most usually wins, but all the evidence seems to show that this is because he has the most donors not the most money. People who spend lots of money on their own campaigns (Meg Whitman, Ross Perot) almost always lose. This means that money doesn’t matter, number of donors does.

          Would you like to actually reread my point and respond to the fact that donors are what matter, not money? Money and donors are correlated because the person who has the most donors will usually have the most money. However, in all the instances where someone tries to run with few donors and tons of money, they lose.

          It’s donors that matter, not cash.

      3. “How about the injustice of Sheldon Addleson not being able to buy the Republican party, with the money he “earned.”

        This is a dumb argument for many reasons. Shall I count the ways?”

        Irish, Irish, Irish…geez. We are supposed to give him a pass because he clearly followed up with “I’m not saying we should pass campaign finance reform, BUT…..”

        Except he is.

        1. They never argue in good faith. EVER.

    3. They focus on the Little Guy because the Little Guy is affected.

      The big guys like Sheldon Adelson have money and lawyers and can figure out the rules of the game. Not that all his money got his favored candidate elected.

    4. 1st Amendment says “fuck off slaver”

  3. Why is Ron Paul looking wistfully at a young Darrell Waltrip?

    1. I thought it was Clarence the Angel from It’s a Wonderful Life, although the guy standing up looks more like a young John Carradine than Jimmy Stewart.

      1. Looks like a clean shaven A Lincoln to me.

        1. I like “Freedom From Want” better. The painting, not the right. That turkey always makes me hungry.

    2. That’d be when DW wore leathers?

  4. Yesterday the Institute for Justice won two First Amendment victories in cases that illustrate how campaign finance regulations, ostensibly aimed at preventing wealthy special interests from buying access to the levers of government power, end up squelching the voices of grassroots groups and amateur activists.

    Yo, fuck Russ Feingold for ever thinking otherwise. (And fuck McCain, but that goes without saying).

  5. If Adelson’s money mattered that much, Gingrich would have been the nominee.

    Politics is a vanity project for Adelson. His spending doesn’t threaten the polity 1/10000th as much as campaign finance law does.

  6. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

    As long as you ask permission and take orders.

    1. “Make no law” is vague and very open to various interpretations… Just like that confusing amendment that uses the baffling phrase “shall not be infringed.”

      Our constitution is so vague only somebody with a formal education in the law could possibly inform us laymen about what it truly means.

      1. Yep, apparently the official version leaves out important words like “unless someone is trying to make a back”. Funny how sloppy those Founders were.

    2. “because it sweeps in a substantial amount of constitutionally protected speech without any sufficiently important governmental interest in regulating such speech.”

      They won the case but for the wrong reasons.

      sufficiently important governmental interest or the lack of it has no place in this argument.

      Congress shall make no law……or abridging the freedom of speech, or of the press, or of the right of the people peaceably to assemble…..

      I see nothing in there allowing exceptions to made and laws passed because of government interest, compelling or otherwise. What part of NO LAW do these motherfuckers not get?

      1. It would seem to be the “no” part…

  7. Jimmy Sammy so so said no way man.

    http://www.GotPrivacy.tk

  8. I’m taking a paralegal course, and in one of the textbooks, it describes advertisement regulations for lawyers as “regulating the first amendment”. They want everyone to be stupid and gullible and buy the party line and they can never sink too low to get it to happen.

    1. In fairness, advertising regulations for lawyers come through the American Bar Association which isn’t a government agency. It’s essentially a professional guild.

      They can regulate the behavior of their members pretty much however they want.

      1. Even then, “regulating the First Amendment” is still a stupid way to put it.

      2. Strictly, the state bars, who wield govt power, do these lawyer regulations.

        1. Guys, there are only some states that require lawyers to be part of the bar, and in that case the bar’s power is limited because of that. In this situation, there are actual laws r egulating the lawyers. However, they’ve never been considered as regulating speech. They regulate lawyers’ economic/business activity. It regulates speech if you want to put it that way, but only when it unavoidably is tied to a lawyer’s job activities here. In theory lawyers cut write things down in pubic media simply stating that they’re involved in this case or that case, just because they want to let the world know, and that would be strictly speech, but in reality that never happens, the lawyer is always advertising and he will be practicing law with those clients he gets from the ad, so there’s no point in putting that tiny nuance/exception in the law.

      3. If the Bar association wants to limit their members, that’s their business. Nothing in the Constitution gives them the authority to limit those who don’t choose to join them.

  9. …”deeming it unconstitutionally vague because “people of common intelligence must guess at the law’s meaning and will differ as to its application.”
    Under that standard, there are few recent laws that would stand.

  10. I have no issue at all with anyone like Adelson, the Waltons, George Soros, or the heirs to the Heinz ketchup fortune spending their money on political whores like Kerry or Gingrich. I don’t even mind if they do it anonymously. What I DO have a major issue with is spending tax money on propaganda.

    -jcr

  11. As U.S. District Judge James Teilborg puts it, “She was about to feel the heavy hand of government regulation in a way she never imagined.” Galassini soon received a letter from the town clerk, who warned her she had better stop exercising her First Amendment rights until she had registered with the government as a political committee. “I was stunned to learn that I needed to register with the government just to talk to people in my community about a political issue,” says Galassini

    Those politicians you voted for, Galassini, they did that to you. Next time, vote smart, vote S-Mart!

  12. “Campaign finance laws chill free speech”

    Feature, not bug.

  13. I will say what I want when I want where I want however I want to whoever I want and my public servants will goddamned well like it or we’ll be needing some new public servants.

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