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.

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Pillar of Law Institute's Benjamin Barr submitted comments to the Federal Election Commission on REG 2015-03, a proposal for a rulemaking by the agency to significantly expand disclosure regulations for political participation. 

Click here to download the comments in PDF format.

Web version available below.

Today the Pillar of Law Institute filed comments with the Federal Election Commission (FEC) regarding a proposed rulemaking relating to the FEC's coordination regulations. The comments endeavor to remind the FEC that campaign finance precedents specifically addressing coordination regulation are clear: coordination regulations cannot prohibit too much interaction and association between campaigns and independent political groups without violating the First Amendment rights of free speech and association.

Click here to download a PDF copy of these comments.

Web version available below.

Supporters of extensive campaign finance regulation insist that the Federal Election Commission (FEC) is a broken government agency. The agency’s current chair Ann Ravel, a Democrat appointee, claims that the Republican commissioners refuse to “enforce the law.” A majority vote of four out of six of the agency’s commissioners (three Republicans and three Democrats, including Chair Ravel) is required for the agency to take action in many instances. In some controversial areas of the law, such as alleged coordination between candidates for federal office and “super PACs” (groups that can raise and spend unlimited amounts of money on advertisements and other activities supporting or opposing candidates for federal office), there have indeed been some 3-3 votes, split between the three Republican and three Democrat commissioners. These instances are used to support a narrative that the FEC is not only broken, but in a partisan gridlock. The truth is, the regulations that the Republican commissioners “don’t want to enforce” are open to interpretation, and reformers have no one to blame but themselves that they are not being interpreted to their liking.

Who will be the censor- in-chief in 2016?

Donald Trump wants Fox News fined by the FCC because Rich Lowry ably took him down a notch. Hillary Clinton is pushing to end most criticism of public officeholders by reversing Citizens United. And dear Lawrence Lessig wants to enact a massive welfare-for-politicians scheme with even tighter controls on citizen participation in politics.

Last week Ian Vandewalker and Daniel Weiner of the Brennan Center for Justice published a paper “Stronger Parties, Stronger Democracy: Rethinking Reform.” The paper takes a different approach to a position similar to Jonathan Rauch in his recent book Political Realism (who incorporated arguments from other academics as well) arguing for changes to federal campaign finance law that would empower political parties. The paper is a welcome addition to the latent field of serious discussions about the future of campaign finance, and is particularly surprising because its publication comes as other “watchdog” groups continue to bark at everything and as presidential candidates roll out grandiose non-starters like constitutional amendments to overturn the Citizens United decision.

Most Americans believe—perhaps reluctantly—that serving on a local city council is a valuable contribution to civic engagement. We know our neighbors, church members, and friends, so it is helpful when they help run our local government. But what happens when ordinary citizens wishing to participate can’t figure out campaign finance red tape? The City of San Jose, California offers instructional insight.

On June 16, Donald Trump officially announced he would run for president, the first billionaire to seriously seek the office since Ross Perot. A lot has changed since 1992, including federal campaign finance law, which governs how presidential election funds are raised and spent. Strangely, although nearly three months have passed since Trump’s announcement, rhetoric about money in politics continues to focus elsewhere, concerned more with “Super PACs” than Trump. This is probably because no standard reform solution could adequately counter Trump’s candidacy. More pointedly, Trump’s candidacy requires recognition that rather than expanding the law we should do away with campaign contribution limits to candidates, one of the law’s key provisions.

The often-amusing absurdity of election law revealed itself in New Hampshire last week when Judge Paul Barbadoro ruled that the state's law banning “ballot selfies” violated the First Amendment. 

In case you’re wondering, a ballot selfie is when a person goes to vote and takes a picture of his ballot.  Some people do it as a matter of civic pride, others do it as a statement of political revolt, and many are just having fun. 

For years, Harvard Professor Lawrence Lessig has served as one of the most outspoken proponents of so-called campaign finance reform, and certainly the most gimmicky. Whether it’s a TED talk, a march in New Hampshire, or a Super PAC “to end Super PACs”, Lessig will do anything to prompt Americans to demand fundamental change in election law. So it is no surprise that Lessig is now exploring a “referendum” campaign for President of the United States. This time, Lessig’s gimmick is that if he wins the Presidency he will serve until Congress passes the Citizen Equality Act of 2017, and then resign. What is surprising, particularly for the campaign finance community, is that currently Lessig’s proposed statute offers next to no content whatsoever, making the would-be campaign his most bombastic effort yet.

In the play “A Man for All Seasons,” Sir Thomas More chastises his future son-in-law Roper after he says he would cut down every law in England to capture the Devil. “And when the last law was down, and the Devil turned round on you—where would you hide, Roper, the laws all being flat?” The danger of Roper’s overzealousness endures today. Although many people charged with crimes may be quite devilish, expanding or ignoring the meaning of our laws to convict them endangers everyone. This is because a law that is applied too broadly makes all of us lawbreakers, subject not to the law itself but to the whims of prosecutors. Thankfully, our courts often still provide an important check on prosecutors who wrongly apply the law, as in the recent ruling by the federal Seventh Circuit Court of Appeals overturning five of 18 convictions against former Illinois governor Rod Blagojevich.

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