Free Speech Under Attack
If we are to remain a free people, we need the foundation of the First Amendment. Free Speech guarantees every individual the freedom to express private opinions and beliefs publicly. Without public discourse and the freedom of associations, we will lose the greatest gift from our founding fathers.
One of the conundrums of campaign finance regulation is where campaign money ends and “pure” political speech begins. Free speech advocates are rightfully wary of making this distinction, because political speech and engagement always cost money. Moreover, when government regulates campaign money, it regulates campaign activity, which can unduly influence or undermine the very purpose of campaigns—that is, to regulate government. Nevertheless, most agree that in spite of the debate about the appropriate scope of campaign finance law, there are indeed areas of political money that may be appropriately regulated and political speech that may not be regulated.
But recent events in Vermont show regulation stepping into a largely unregulated area: e-mails.
This week the New York Times ran a hit piece against the Brookings Institution, alleging that think tanks regularly act as rogue corporate allies. Of particular concern for the NYT was that a successful home builder, Lennar Corporation, wanted to help revitalize San Francisco through an $8 billion building program. To do so, it appears Brookings helped set up meetings with government officials and engage the national media on the importance of revitalizations. This, we find out, greatly bothered the NYT.
Yesterday the United States Court of Appeals for the D.C. Circuit issued an important free speech decision in the case Pursuing America’s Greatness v. Federal Election Commission (FEC). The case stemmed from campaign finance law that prohibits independent political committees (PACs) from using the names of federal candidates in their titles. The law is based on concern that an organization with a name like “Americans for Hillary Clinton” could be too easily confused with Hillary Clinton’s official campaign committee (which is “Hillary for America”), meaning donors might contribute under that impression.
The FEC’s regulations go farther than this, though, and also place certain restrictions on using candidates’ names in projects undertaken by PACs. So, Pursuing America’s Greatness was not allowed to use the title “I Like Mike Huckabee” for an effort on its website or social media during Huckabee’s presidential candidacy. The court issued a preliminary injunction against enforcing this regulation as an unconstitutional abridgment of free speech. Just as important as the ruling is the reaction and the FEC’s arguments in the case, which question just how much faith the campaign finance community really has in disclosure.
CASPER, WY – Two delegates to the Republican National Convention settled a lawsuit on Friday against the Federal Election Commission (FEC), Two Unnamed Plaintiffs v. FEC. These delegates were represented by attorneys from the Pillar of Law Institute, which was also a plaintiff in the case. The delegates and Pillar brought suit in Wyoming federal court due to a ban against giving any assistance to delegates by corporations, even non-profits.
“Our win ensures that convention delegates will have access to similar sources of funding as party operatives. It also allows non-profits to donate free legal services and educational materials to delegates,” said Benjamin Barr, lead counsel in the case. “Our settlement goes further than that, recognizing that corporate non-profits may provide delegates with travel stipends and other financial assistance, breaking new ground in federal campaign finance law.”
Late last summer, after Hillary Clinton launched her presidential campaign in New York, undercover reporters from Project Veritas Action Fund (PVA) exposed some ranking members of Clinton’s team facilitating a foreign conduit contribution—that is, they assured the PVA reporter that she could purchase some Clinton gear for a Canadian citizen and then be reimbursed by the Canadian for the expense.* This was an illegal foreign contribution. But the campaign finance community—including so-called reformers—exercised a rare instance of discretion, arguing it was silly to enforce the law’s zero-tolerance policy against foreign contributions for campaign merchandise and deflecting by arguing that the PVA journalist committed the same or similar offense as the Clinton campaign.
Less than a year later, the reform community has rediscovered its zeal for zero-tolerance against foreign contributions, and then some. Late last month, the Campaign Legal Center filed a complaint against the Donald Trump campaign, not for accepting even a penny of foreign contributions, but for having an e-mail list that includes foreign nationals, or foreign government e-mail accounts, which receive Trump’s blasts including solicitations for contributions.
Cheyenne, WY – Pillar of Law Institute attorneys filed for preliminary injunctive relief today in Pillar of Law Institute & Two Unnamed Plaintiffs v. FEC. Pillar asks the court to allow delegates to the Republican National Convention to be able to participate in its delegate autonomy project. In its brief, Pillar argues that federal election law unconstitutionally prohibits non-profits from providing free books, pro bono legal services, or travel stipends to delegates.
CHICAGO, IL – Pillar of Law Institute attorneys filed for summary judgment in the case Ball v. Madigan today in Illinois federal court, asking the court to overturn a state law that prohibits medical cannabis cultivation centers and dispensaries from making contributions to candidates for state offices.
“This case is simple: almost any company in Illinois can contribute up to $10,800 to each candidate for any state office during an election,” said Benjamin Barr, Pillar attorney and lead counsel in the case. “Medical marijuana grow operations and dispensaries, however, are completely banned from contributing. It’s baseless censorship.”
CHEYENNE, WY – The Pillar of Law Institute filed a lawsuit in Wyoming federal court today, challenging a law that prohibits delegates to political party conventions from accepting books, travel stipends, and legal assistance from non-profits.
“For the upcoming Republican Convention, delegates could receive unlimited money from individual donors, but could not accept even books or a travel stipend from organizations like Pillar,” said Benjamin Barr, lead counsel in the case. “Federal election law actually bans the distribution of books to delegates because it deems them corrupting. This is not just fundamentally unfair; it is also unconstitutional.”
AUSTIN, TX – The Pillar of Law Institute filed a friend-of-the-court brief with the Texas Supreme Court today, arguing that the court should review the state’s lobbying registration law. The case, Texas Ethics Commission v. Sullivan, challenges a $10,000 fine against a citizen for e-mailing legislators.
On April 18, co-founders of the famous Ben & Jerry’s ice cream brand were arrested at the nation’s capitol. The two joined “Democracy Awakening” to help protest the influence of “big money” in politics. Usually that means undoing Citizens United, or making sure that corporations are not allowed to speak about political issues and candidates.