Litigation

Supreme Court May Consider Protecting Free Campaign Speech for the "Little Guy"

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Paul Sherman of the Institute for Justice with exciting potential news for free political speech, writing at Forbes.

this Friday, November 1, the U.S. Supreme Court will meet in private conference to decide whether to grant review in a case that…demonstrates the severe burden that campaign-finance laws impose on ordinary, grassroots groups of Americans.

The case, Worley v. Florida Secretary of State, involves three Florida residents, Nathan Worley, John Scolaro, and Pat Wayman, who in 2010 wanted to pool $600 to spend on radio ads opposing a controversial amendment to the Florida constitution regarding land-use regulations….

Under Florida law, anytime two or more people spend as little as $500 to support or oppose a candidate or ballot issue, they are considered a "political committee."  That means they have to register with the state, open a separate bank account, pay for all expenses with checks drawn from that account and keep meticulous financial records, all of which are disclosed on the Internet.  In other words, they have to comply with all of the requirements that political candidates hire lawyers and accountants to deal with.

As a practical matter, these regulations make spontaneous political speech effectively impossible for ad hoc, grassroots groups….

For those groups that do choose to speak out, Florida's campaign-finance laws present a regulatory minefield filled with scores of potential violations.  The state recommends that those wishing to comply with the law familiarize themselves with more than a thousand pages of constitutional provisions, laws, regulations, and advisory opinions….

Faced with these burdens, Nathan, John and Pat—represented by the Institute for Justice—turned to the federal courts to vindicate their First Amendment rights.

They had good reason to be hopeful.  The U.S. Supreme Court has repeatedly recognized that political committee requirements like Florida's impose severe burdens on political speech that merit the highest level of judicial scrutiny.  Indeed, in Citizens United, the Court held that forcing corporations and unions to speak through a political committee was so burdensome it amounted to an unconstitutional "ban on speech."  Nevertheless, a federal court in Florida and, later, the 11th U.S. Circuit Court of Appeals both upheld Florida's political committee law….

That result cannot be squared with the First Amendment, which is why the Supreme Court should grant review in Nathan, John, and Pat's case and reverse the decision of the 11th Circuit.  Doing so wouldn't just vindicate the plaintiffs' rights, it would demonstrate the Court's commitment to the principle that political participation is not a game reserved for the wealthy—it is the right of every American and every group of Americans, no matter how modest their resources or political goals.

I wrote for Reason back in 2001 on how campaign finance law can be used to destroy the lives of grassroots political activists for no legitimate public policy reason.

Reason on Citizens United.