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.
What would sports look like if rules designed for campaign finance governed their play? Let’s be clear at the outset—sports are chocked full of odd and absurd rules. There’s the penalty issued against the Georgia Bulldogs when a photographer captured an assistant coach and a recruit together. Or there’s the case of Dez Bryant who was penalized because he befriended Deion Sanders. You might have a collection of your own absurd rule infractions. Now imagine if such silly rules applied to politics. They do, and they’re even worse.
“Lawfare,” a term combining “law” and “warfare,” is largely used in discussions of law as it relates to military affairs and foreign policy. A look at the term’s Wikipedia entry indicates this most common usage, and this is supported by a far more authoritative law review article by Professor Wouter Werner. This week, David French’s excellent article in National Review revealing the stories behind the sordid John Doe investigations in Wisconsin also notes the broadening of lawfare as something used domestically in America:
The John Doe investigations are a form of domestic lawfare, and our constitutional system is ill equipped to handle it. Federal courts rarely intervene in state judicial proceedings, state officials rarely lose their array of official immunities for the consequences of their misconduct, and violations of First Amendment freedoms rarely result in meaningful monetary damages for the victims.
This kind of lawfare is exactly what Pillar of Law Institute aims to stop.
It’s been a busy few weeks for the Campaign Legal Center, flooding the Federal Election Commission (FEC) with complaints about potential presidential candidates and, this week, rapper Pras Michel, formerly of the iconic hip hop group the Fugees. Notably, Campaign Legal not only filed a complaint with the FEC for a civil investigation, but looped in the Department of Justice as well, asking for a criminal investigation. The effort brings to mind one of the Fugees’ hits, “Killing Me Softly.” Unlike the hit song, Campaign Legal’s effort will probably go largely unheard, but is nevertheless is another soft blow to political engagement, or free speech.
Democracy21 (D21), a self-described campaign finance “reform” group, recently released a “model bill” for the federal and state governments to, the groups claims, “establish rules to shut down individual-candidate Super PACs and to prevent coordination between outside spending groups and candidates they support.” Coordination is the latest windmill that reformers are charging at with quixotic zeal; in addition to releasing this model bill D21 also joined the Campaign Legal Center in a friend-of-the-court brief, arguing that Wisconsin’s state regulation of so-called coordination passes constitutional muster. This is only fitting, as D21’s model bill closely parallels Wisconsin’s law. But, also like Wisconsin’s law, D21’s proposed bill does not square with the First Amendment and the citizen engagement that it’s meant to protect. (Be sure to read our brief filed in the same case on behalf of POLI’s parent organization, the Wyoming Liberty Group.)
Americans would have a hard time supporting a $72,000 penalty for jaywalking or a $10,000 fine for speeding. But in the context of campaign finance reform, excessive penalties go unnoticed. These fines are usually triggered due to technical errors and paperwork mistakes. They also work a greater evil. By being poorly fitted to the legal violations they address, they steer political amateurs and first time speakers away from the political process.
It is hard to imagine in the “land of the free” that Americans are forced to register and report with the government just to criticize it. But that’s what today’s campaign finance laws do—smother and inhibit individuals from speaking.
How do we reclaim the protection of the First Amendment for political activists on the wrong side of campaign finance reform? The Pillar of Law Institute believes that a commitment to first principles and innovative litigation techniques will move the law in a fundamental, rather than incremental, pattern. And we have results to show for this process.
American mainstream media often paints a bleak picture about American politics. Dark money, we are told, is ruining our elections. Wealthy speakers are equally suspicious. But what do the numbers really tell us?
It is hard to believe that in America we have powerful bureaucrats at the federal and state level who decide how much speech is too much. It is equally hard to believe that these same individuals can decide which groups of Americans are allowed to associate with one another, or for how long, or in what manner. It’s time for that to end.