PUBLIUS WAS NOT A PAC

Endnotes

* B.A., B.S. University of Wyoming; J.D., Chicago-Kent College of Law, Illinois Institute of Technology; Mr. Barr serves of counsel to the Wyoming Liberty Group (www.wyliberty.org) and is lead counsel to Free Speech in Free Speech v. Fed. Election Commission, a case challenging several campaign finance regulations as unconstitutionally vague and overbroad. Mr. Barr formerly served as special counsel to two Chairmen of the Federal Election Commission.

** B.A., Hillsdale College; J.D., Ave Maria School of Law; Mr. Klein is a staff attorney with the Wyoming Liberty Group and co-counsel to Free Speech.

The authors thank Bruce Walker and the staff of the Wyoming Law Review for their valuable input and editorial assistance. The authors also thank Susan Gore and the Wyoming Liberty Group for support.

1 U.S. Const. amend. I.
2 See Black’s Law Dictionary 106 (9th ed. 2009).
3 See infra notes 93–136 and accompanying text.
4 See infra notes 93–119 and accompanying text.
5 See Bailey v. Maine Comm’n on Gov’t Ethics and Election Practices, 900 F. Supp. 2d 75, 88–93 (D. Me. Sept. 30, 2012).
6 See infra notes 93–119 and accompanying text.
7 See infra notes 118–136 and accompanying text.
8 See infra notes 30–38 and accompanying text.
9 See infra notes 93 –119 and accompanying text.
10 See infra notes 137–172 and accompanying text.
11 Fed. Election Comm’n v. Mass. Citizens for Life, 479 U.S. 238, 255 (1986).
12 Trevor Potter, president of the Campaign Legal Center, recently dismissed Justice Scalia’s concern that “This campaign finance law is so intricate that I can’t figure it out.” Trevor Potter, The Supreme Court needs to get smarter about politics, Wash. Post (Oct. 11, 2013), available at http://www.washingtonpost.com/opinions/the-supreme-court-needs-to-get-smarter-about-politics/2013/10/11/806c9c44-31b7-11e3-8627-c5d7de0a046b_story.html.
13 See, e.g., Ryan J. Reilly, Eschoo: Chamber Having ‘Sissy Fit’ Over Campaign Disclosure, TPM Muckr aker (June 3, 2011, 1:20 PM), http://tpmmuckraker.talkingpointsmemo.com/2011/06/eshoo_chamber_having_sissy_fit_over_campaign_discl.php; Gadi Ben-Yehuda, SCOTUS: US Politics No Place for Sissies, HuffPost Politics (June 25, 2010, 4:03 PM) http://www.huffingtonpost.com/gadi-benyehuda/scotus-us-politics-no-pla_b_625221.html (last visited Nov. 26, 2013).
14 This “institution will be based on the illimitable freedom of the human mind. for [sic] here we are not afraid to follow truth wherever it may lead, nor to tolerate any error so long as reason is left free to combat it.” Letter from Thomas Jefferson to William Roscoe (Dec. 27, 1820), available at http://www.loc.gov/exhibits/jefferson/75.html.
15 See infra notes 19–78 and accompanying text.
16 See infra notes 79 –92 and accompanying text.
17 See infra notes 93–136 and accompanying text.
18 See infra notes 137–205 and accompanying text.
19 See, e.g., 2 U.S.C. § 434 (2012).
20 See, e.g., An American Citizen I, Independent Gazetteer, Sept. 26, 1787, reprinted in 1 The Debate on the Constitution 20–24 (Bernard Bailyn, ed., 1993) [hereinafter Debate 1].
21 See, e.g.,Agrippa” III, Mass. Gazette, Nov. 30, 1787, reprinted in Debate 1 at 443–45.
22 See, e.g., “Cato” I, N.Y. Journal, Sept. 27, 1787, reprinted in Debate 1 at 31–33.
23 See, e.g., Reply to Elbridge Gerry: “A Landholder” IV, Connecticut Courant, Nov. 26, 1787, reprinted in Debate 1 at 234–38.
24 See, e.g., Reply to Mason’s “Objections”: “Civis Rusticus,” Va. Ind. Chron., Jan. 30, 1788, reprinted in Debate 1 at 353–62.
25 See, e.g., “Civis” to the Citizens of South Carolina, Columbian Herald, Feb. 4, 1788, reprinted in 2 The Debate on the Constitution 147–54 (Bernard Bailyn, ed., 1993) [hereinafter Debate 2].
26 See, e.g., “A Freeman” to the Freeholders and Freemen of Rhode Island, Newport Herald, March 20, 1788, reprinted in Debate 2 at 368–71.
27 See generally The Federalist. John Jay authored only five articles, limiting his participation after coming down with rheumatoid arthritis. Richard Brookhiser, James Madison 63 (2011).
28 Brookhiser, supra note 27, at 64.
29 “Printed in only a dozen papers outside of New York, [The Federalist’s] larger influence was spotty.” Ron Chernow, Alexander Hamilton 261 (2004).
30 John C. Miller, Alexander Hamilton: Portrait in Paradox 189 (1959). See also Chernow, supra note 29, at 249 (“Many people knew that Hamilton, Madison, and Jay were the authors, but the trio proclaimed their authorship to only a chosen few and then mostly after the first bound volume was published in March 1788.” (emphasis added)).
31 See, e.g., Frederick Mosteller & David L. Wallace, Inference and Disputed Authorship:The Federalist (1964).
32 Chernow, supra note 29, at 245 (emphasis added).
33 Chernow, supra note 29, at 712 (citation omitted).
34 Chernow, supra note 29, at 714 (citation omitted).
35 See generally Chernow, supra note 29, at 219–42.
36 See, e.g., David Zucker- John Kerry Flip Flop Ad, YouTube (Nov. 21, 2013), http://www.youtube.com/watch?v=oThH-MNCsYw.
37 “Not only was Madison a Southerner and therefore unable to approach the Constitution from the point of view of a New Yorker, but he also contributed a broad philosophical insight that helped to elevate these essays far above the polemical writings of the day.” Miller, supra note 30, at 189.
38 In Virginia The Federalist was distributed in bound form: “Madison sent hundreds of copies to Virginia delegates, including John Marshall. The Federalist’s influence was to be especially critical in New York and Virginia, two large states indispensable to the union’s long-term viability.” Chernow, supra note 29, at 261.
39 Richard Brookhiser, Alexander Hamilton, American 72 (1999). See also Miller, supra note 30, at 209–10.
40 Chernow, supra note 29, at 262.
41 Id. at 267–68. [I]n mid-July, the two sides remained unalterably apart . . . . Days later, Melancton Smith finally broke the deadlock when he endorsed the Constitution if Congress would promise to consider some amendments. Paying indirect tribute to Hamilton, Smith credited “the reasonings of gentlemen” on the other side for his changed vote. On July 26, Smith and a dozen other antifederalists switched their votes to favor the Constitution, producing a wafer-thin majority . . . the smallest margin of victory at any state convention . . . .
Chernow, supra note 29, at 268. Melancton Smith was “the most capable debater on the [antifederalist] side.” Brookhiser, supra note 27, at 73.
42 Miller, supra note 30, at 207.
43 Isaiah Thomas, The History of Printing in America 133–34 (1874).
44 Id. at 129–32.
45 Leonard Williams Levy, Emergence of a Free Press 30 (1985).
46 Frederick S. Allis, Jr., Boston and the Alien Sedition Laws, in Proceedings of the Bostonian Society 25–51 (1951).
47 Louis Edward Ingelhart, Press and Speech, Freedoms in America, 1619–1995 80–82 (1995).
48 Some who publicly pressed for robust First Amendment protections also helped generate speech-suppressing laws like the Sedition Acts. James Grant, John Adams: Party of One 405–06 (2005) (“John Adams had not asked Congress to pass the Sedition Act, but he willingly signed it, believing, along with virtually every other Federalist, in the doctrine of ‘seditious libel.’ That is, he believed that the government could be criminally assaulted with words.”). Human nature and hypocrisy aside, the overall understanding of the Founding Era was in favor of robust speech as a means to keep government in check. Eugene Volokh, Freedom for the Press as an Industry, or for the Press as a Technology? From the Framing to Today, 160 U. Pa. L. Rev. 459, 465–68 (2012) (citing numerous sources encouraging protection of a free press, many based on the freedom to criticize government).
49 First Nat’l Bank of Bos. v. Bellotti, 435 U.S. 765, 800–01 (1978) (Burger, C.J., concurring).
50 Robert J. Wagman, The First Amendment Book 28 (1991).
51 Ingelhart, supra note 47, at 47.
52 Bernard Bailyn, The Ideological Origins of the American Revolution 56 (1973).
53 The Sedition Act imposed a prison sentence of up to two years against “any person [who] shall write, print, utter or publish, or shall cause or procure to be written, printed, uttered or published, or shall knowingly and willingly assist or aid in writing, printing, uttering or publishing any false, scandalous and malicious writing or writings against the government of the United States . . . .” 1 Stat. § 596–97 (1798).
54 Grant, supra note 48, at 405.
55 Id.
56 Roth v. United States, 354 U.S. 476, 484 (1957).
57 William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489, 491 (1977).
58 Henry Adams, Democracy: An American Novel (1880), reprinted in Henry Adams:
Novels, Mont Saint Michel, The Education (1983).
59 Edward Chalfant, Better in Darkness: A Biography of Henry Adams, His Second Life
1862–1891 329 (1994).
60 Id.
61 Id. at 289.
62 Id. at 329.
63 Id. at 334.
64 Some argue that Blaine cannot be easily associated with Senator Ratcliffe, “[t]he parallels are not very close.” Gary L. Wills, Henry Adams: The Historian as Novelist 579, 597 (2003), available at http://tannerlectures.utah.edu/_documents/a-to-z/w/wills_2003.pdf. Nevertheless, James Blaine certainly considered the parallels close enough.
65 Chalfant, supra note 59, at 411.
66 Id. at 452.
67 Id. at 399.
68 Id. at 399–400.
69 David Greenberg, Democracy: Why it’s the only lasting anonymous Washington novel, Slate (Apr. 20, 2011, 2:28 PM), http://www.slate.com/articles/news_and_politics/history_lesson/2011/04/democracy.html (last visited Nov. 26, 2013). Greenberg also offers praise for the timelessness of Democracy, contrasting it to other novels that critique American democracy: “The appeal of most Washington novels rests in their resonance with current events. After Joe Klein was ousted as the author of the Primary Colors, popular interest in reading the book plummeted. Klein’s sequel, The Running Mate, written under his own name, drew little attention. Most Washington novels are not literature but punditry by other means.” Id.
70 Chalfant, supra note 59, at 328–29.
71 Greenberg, supra note 69.
72 See, e.g., Amy Goldstein, Lena H. Sun & Sandhya Somashekhar, Rush of interest continues on insurance Web sites, Wash. Post (Oct. 2, 2013), available at http://www.washingtonpost.com/national/health-science/obamacare-site-goes-live-with-some-glitches/2013/10/01/380a4300-2a9d-11e3-8ade-a1f23cda135e_print.html (“‘Very, very few people that we’re aware of have enrolled in the federal exchange,’ said one insurance industry official, who like many in the industry, spoke on the condition of anonymity out of concern for possibly offending the Obama administration.”). See also Sarah Abrams, Woodward and Bernstein Defend Anonymous Sources, Harvard Kennedy School (Dec. 5, 2005), available at http://www.hks.harvard.edu/news-events/news/articles/woodwardand-bernstein-defend-anonymous-sources.
73 See, e.g., Politico’s Martin Defends Use of Unnamed Sources, Real Clear Politics (Aug. 19, 2012), http://www.realclearpolitics.com/video/2012/08/19/politicos_martin_defends_use_of_unnamed_sources.html (last visited Nov. 26, 2013).
74 David Von Drehle, FBI’s No. 2 Was ‘Deep Throat’: Mark Felt Ends 30-Year Mystery of The Post’s Watergate Source, Wash. Post (June 1, 2005), available at http://www.washingtonpost.com/politics/fbis-no-2-was-deep-throat-mark-felt-ends-30-year-mystery-of-the-posts-watergatesource/2012/06/04/gJQAwseRIV_story.html.
75 John W. Dean, Watergate’s Unanswered Questions: 40 Years of Hindsight, 16 Chapman L. Rev. 1, 6 (2012) (“Watergate caused Washington to reexamine the way it did business, and that, in turn, provoked many reforms. . . . Congress adopted a number of new campaign finance and reporting laws and created the Federal Elections [sic] Commission.”).
76 See infra notes 79–92 and accompanying text.
77 See, e.g., Matthew Mazzotta, Note, Balancing Act: Finding Consensus on Standards for Unmasking Anonymous Internet Speakers, 51 B.C. L. Rev. 833 (2010).
78 Even the Campaign Legal Center, which vigorously supports campaign finance laws, once supported unfettered Internet speech. See, e.g., Comments on Notice 2005–10, Campaign Legal Center 15 (2005), available at http://www.campaignlegalcenter.org/attachments/FEC_PROCEEDINGS/1381.pdf (“This rule would make clear, appropriately so, that individuals engaging in unfettered political discourse over the Internet using their own computer facilities (or those publicly available) would not be subject to regulation under the campaign finance laws . . . .”).
79 Duryea Bor. Ct. v. Guarnieri, 131 S.Ct. 2488, 2495 (2011).
80 Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 339 (2010).
81 Alexis de Tocqueville, 2 Democracy in America 115 (Henry Reeve, trans.) (1841).
82 See First Nat. Bank of Bos. v. Bellotti, 435 U.S. 765, 792 n.31 (1978) (“Government is forbidden to assume the task of ultimate judgment, lest the people lose their ability to govern themselves.”).
83 Louis D. Brandeis, What Publicity Can Do, Harper’s Wkly, Dec. 20, 1913 at 10, available at http://3197d6d14b5f19f2f440-5e13d29c4c016cf96cbbfd197c579b45.r81.cf1.rackcdn.com/collection/papers/1910/1913_12_20_What_Publicity_Ca.pdf.
84 The first category of protected political speech and association is contributions, or direct monetary donations to candidates or organizations involved in the political process. Because of the direct monetary exchange and greater risk of corruption, the Supreme Court has protected this category of political speech and association the least. Buckley v. Valeo, 424 U.S. 1, 23–38, 74–82 (1976). The second category is express advocacy, also known as “independent expenditures,” which is speech calling for the election or defeat of a clearly identified candidate. Express advocacy may be subject to limited disclosure, but not otherwise limited. Id. at 39–59, 74–82. The third category is the ill-defined “functional equivalent of express advocacy,” which will only be discussed in limited reference in this article. See, e.g., Fed. Election Comm’n v. Wis. Right to Life, 551 U.S. 449, 469–76 (2007). The last category, and most strongly protected, is issue advocacy, which is speech discussing political or moral issues that might be connected to candidates or elections but rests outside the ambit of government regulation.
85 Buckley, 424 U.S. at 76–82.
86 Grayned v. City of Rockford, 408 U.S. 104, 108–09 (1972) (“A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory applications.”).
87 Buckley, 424 U.S. at 64.
88 See id. at 26.
89 See id. at 39–44.
90 See Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 324 (2010) (“The First Amendment does not permit laws that force speakers to retain a campaign finance attorney, conduct demographic marketing research, or seek declaratory rulings before discussing the most salient political issues of our day.”).
91 Although the exercise of speech and association has a preferred place over regulation, the Supreme Court permits disclosure in limited instances, specifically when it: (1) deters actual or perceived corruption; (2) provides the electorate with relevant information about who is speaking; or (3) provides information about violations of the law. Buckley, 424 U.S. at 66–68.
92 The very history of case law leading up to Buckley included national arguments over the vagueness and overbreadth contained in emerging federal campaign finance laws, ultimately leading to their circumscription. See, e.g., United States v. Nat’l Comm. for Impeachment, 469 F.2d 1135, 1139–42 (2d Cir. 1972); Am. Civil Liberties Union v. Jennings, 366 F. Supp. 1041, 1055–57 (D.D.C. 1973).
93 Campaign Finance – Stossel in the Classroom, YouTube (Nov. 21 2013), http://www.youtube.com/watch?v=QeHxSW52Hmc (including a claim by Cecilia Martinez of the Reform Institute that complying with disclosure is “very simple” and that the complexity of Colorado’s disclosure system is justified because it was the result of “voter sentiment”).
94 558 U.S. 310, 334 (2010).
95 Id. at 337–39.
96 See 2 U.S.C. § 431(4) (2012).
97 Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 338 (2010).
98 2 U.S.C. §§ 434(a)(4), (b) (2012).
99 See, e.g., Jeffrey Milyo, Campaign Finance Red Tape: Strangling Free Speech & Political Debate, Institute for Justice (Oct. 2007), available at http://www.ij.org/image/pdf_folder/other_pubs/CampaignFinanceRedTape.pdf.
100 See generally Government Litigation Savings Act, H.R. 1996, 112th Cong. (2011).
101 This is a modified version of some facts in Free Speech v. Fed. Election Comm’n, an ongoing lawsuit. The authors are counsel to Free Speech. See Free Speech v. Fed. Election Comm’n, Wyo. Liberty
Grp., http://wyliberty.org/legal-center/free-speech-v-federal-election-commission/ (last visited Nov. 21, 2013).
102 See Fed. Election Comm’n v. Wis. Right to Life (WRTL), 551 U.S. 449, 457 (2007) (rejecting restrictions on corporate issue advocacy); see also Citizens United, 558 U.S. at 366–71 (upholding disclosure requirements for electioneering communications).
103 See 2 U.S.C. § 437f (2012).
104 The authors have a combined experience of fifteen years in federal campaign finance law, and can attest to the veracity of these estimates. Although some campaign finance experts (especially those located in the Capitol Beltway) could provide guidance in less time, their hourly rates could be double or triple the $200 assumed in this scenario.
105 Id.
106 Id.
107 2 U.S.C. § 432(a) (2012).
108 See 2 U.S.C. § 437g(d) (2012).
109 See Statement of Policy; Safe Harbor for Misreporting Due to Embezzlement, 72 Fed. Reg. 16695 (Apr. 5, 2007), available at http://www.fec.gov/law/cfr/ej_compilation/2007/notice_2007-9.pdf.
110 Id.
111 See 2012 Reporting Dates, Federal Election Comm’n, http://www.fec.gov/info/report_dates_2012.shtml.
112 See generally 2012 Election Spending Will Reach $6 Billion, Center for Responsive Politics Predicts, OpenSecrets.org, Oct. 31, 2012, http://www.opensecrets.org/news/2012/10/2012-election-spending-will-reach-6.html (last visited Nov. 26, 2013) (“With no requirements to disclose where the money is coming from, voters in 2012 have been left with no real means to judge the credibility of the message or consider any hidden agendas leading those donors to give.”).
113 The FEC recently argued in a brief that PAC disclosure cannot be burdensome, since “Of the 6,975 PACs that were registered with the Commission as of November 2012, more than 2,670 registered after Citizens United was decided in January 2010, and these PACs spent more than $687 million on independent expenditures to influence federal elections over the past three years.” Brief for Appellee Federal Election Commission at 44, Free Speech v. Fed. Election Comm’n, 720 F.3d 788 (2013) (No. 12-8078), available at http://www.fec.gov/law/litigation/freespeech_fec_brief.pdf.
114 See supra notes 93–110 and accompanying text; see also MUR 5957 (The Committee to Elect Sekhon for Congress), Statement of Reasons of Vice Chairman Peterson and Commissioners Hunter and McGahn, FEC (June 24, 2009), available at http://eqs.nictusa.com/eqsdocsMUR/29044243959.pdf. But see Fred Wertheimer & Don Simon, The FEC: The Failure to Enforce Commission, Am. Const. Soc’y at 14–15 (Jan. 2013), available at http://www.democracy21.org/wp-content/uploads/2013/02/Wertheimer-and-Simon-The-Failure-to-Enforce-Commission-.pdf (cryptically classifying the Sekhon case as evidence of “the refusal of the Republican [FEC] commissioners to enforce the laws”).
115 See, e.g., Disclosure and Regulation of Campaign Contributions and Expenditures, 9 Ill. Comp. Stat. 5 (2013).
116 See Sampson v. Buescher, 625 F.3d 1247, 1251–53 (10th Cir. 2010).
117 Id.
118 Id. at 1259.
119 Fed. Election Comm’n v. Mass. Citizens for Life 479 U.S. 238, 255 (1986).
120 See Brandenburg v. Ohio, 395 U.S. 444, 445 (1969).121 Buckley v. Valeo, 424 U.S. 1, 44 (1976).
122 See Fed. Election Comm’n v. Wis. Right to Life, 551 U.S. 449, 456–57 (2007).
123 Importantly, this was considered of higher constitutional value than the maintenance of rigorous, broad standards capable of regulating more speech. Regulations affecting speech must often be under-inclusive leading to less rigorous enforcement in order to preserve a broader sphere of speech from improper regulation. See Fed. Election Comm’n v. Wis. Right to Life, 551 U.S 449, 474 (2007).
124 Grayned v. City of Rockford, 408 U.S 104, 108–09 (1972).
125 540 U.S. 93, 206 (2003).
126 See, e.g., Citizens United v. Fed Election Comm’n, 558 U.S. 310, 333–34 (2010).
127 Id. at 335.
128 Id.
129 See 11 C.F.R. §100.22(b) (2013).
130 See, e.g., Matter Under Review 5842 (Economic Freedom Fund), Statement of Reasons of Commissioners Cynthia L. Bauerly and Ellen L. Weintraub at 4 (FEC 2009), available at http://eqs.nictusa.com/eqsdocsMUR/29044241152.pdf.
131 Advisory Opinion Request on Behalf of Free Speech (Feb. 29, 2012), available at http://saos.nictusa.com/aodocs/1204965.pdf.
132 Id. at 3.
133 Compare Advisory Opinion 2012–11 (Free Speech) (Draft B), available at http://saos.nictusa.com/aodocs/1206386.pdf, with Advisory Opinion 2012–11 (Free Speech) (Draft C), available at http://saos.nictusa.com/aodocs/1207876.pdf.
134 At Free Speech’s oral argument seeking preliminary injunction against enforcement of the speech regulation, the FEC’s counsel correctly noted that “certainly we can’t make any guarantees that plaintiffs could never—that the commission couldn’t reach a different conclusion in the context of enforcement. The reality is that’s probably very unlikely in this situation, at least with the current makeup of the commission . . . . It is not a grant of immunity.” Transcript of Oral Argument at 35, Free Speech v. Fed. Election Comm’n, 720 F.3d 788 (2013) (No. 12-CV-127), available at http://wyliberty.org/wp-content/uploads/2013/04/FreeSpeech9-12-12Hearing.pdf.
135 See supra notes 93–101 and accompanying text.
136 See, e.g., Real Truth About Abortion v. Fed. Election Comm’n, 681 F.3d 544 (4th Cir. 2012); Minn. Citizens Concerned for Life v. Swanson, 692 F.3d 864 (8th Cir. 2012).
137 Schumer: There Ought to be Limits on First Amendment, Real Clear Politics (Jul. 17, 2012), http://www.realclearpolitics.com/video/2012/07/17/schumer_there_ought_to_be_limits_on_first_amendment.html (last visited Nov. 26, 2013).
138 See Draft B, supra note 133, at 24–25 (concluding that an organization’s major purpose was the support or defeat of candidates because “even its non-express advocacy spending will attack or oppose a clearly identified Federal candidate”).
139 357 U.S. 449, 460 (1958).
140 Id. at 462–63.
141 Id. at 460–61.
142 Id. at 461.
143 See also Sampson v. Buescher, 625 F.3d 1247, 1259– 61 (10th Cir. 2010).
144 McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995).
145 Id. at 357.
146 Id. at 342–43.
147 Id. at 343.
148 Id. at 342 (citations omitted).
149 Id. at 341 n.4 (citations omitted).
150 Id. at 345 n.8.
151 383 U.S. 825, 829 (1966).
152 Id. (quoting Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 546 (1963)). These cases usually involve Communist organizations in the midst of aggressive government persecution. Id.; see also Brown v. Socialist Workers ’74 Campaign Comm., 459 U.S. 87 (1982).
153 Dale E. Ho, NAACP v. Alabama and False Symmetry in the Disclosure Debate, 15 N.Y.U. J. Legis. & Public. Pol’y 405, 463 (2012).
154 Id. at 407.
155 See generally Brown, 459 U.S. 87.
156 See Brown, 459 U.S. at 98–103.
157 Readers may substitute any organization in place of the NRA. Organizations of all political
stripes are equally subject to harassment under existing doctrine.
158 Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 336 (2010).
159 Id. at 323–34.
160 Id. at 334–35 (detailing that while the Court attempted to develop an objective test, it resulted in the adoption of a “two-part, 11-factor balancing test”).
161 Of course, the Court might favor streamlining its current approach, as it did in Citizens United, to provide more workable standards, broader protection for the exercise of free speech and associational rights, and clarity for prospective speakers.
162 First Nat. Bank of Bos. v. Belloti, 435 U.S. 765, 791 (1978).
163 Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 856 (1992) (“The Constitution serves human values.”).
164 NAACP v. Alabama, 357 U.S. 449, 461 (1958).
165 See, e.g., Graham v. Connor, 490 U.S. 386, 397 (1989) (applying an “objectively reasonable” excessive force analysis); Florida v. Jimeno, 500 U.S. 248, 249 (1991) (applying objective standard for scope of unreasonable search analysis).
166 See District of Columbia v. Heller, 554 U.S. 570, 602 (2008).
167 See infra notes 197–200 and accompanying text.
168 See supra notes 139–167 and accompanying text.
169 See generally “Sandy Hook Elementary School Shooting,” Huffington Post, http://www.huffingtonpost.com/news/sandy-hook-elementary-school-shooting/ (last visited Nov. 26, 2013).
170 The development of this line of conduct would lead to a modified version of the Heckler’s Veto working in the realm of political speech. See, e.g., Forsyth Cnty., Ga. v. Nationalist Movement, 505 U.S. 123 (1992). If organizations wished to secure political privacy under the law they could do so through a campaign of fake death threats, harassment, and public outrage. This would lead to active manipulation of the law, allowing some to secure political privacy through orchestrated campaigns of public nuisance. Unlike traditional Heckler’s Veto scenarios, this policy would result in the government promotion of fake public-outrage campaigns to move organizations or issued into the field of protected controversial speech.
171 Buckley v. Valeo, 424 U.S. 1, 43 (1976).
172 See generally Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010).
173 See, e.g., Jeffrey Milyo, Campaign Finance Red Tape: Strangling Free Speech & Political Debate, Institute for Justice (Oct. 2007), available at http://www.ij.org/images/pdf_folder/other_pubs/CampaignFinanceRedTape.pdf.
174 Brown v. Socialist Workers ’74 Campaign Comm., 459 U.S. 87 (1982).
175 See supra note 12 and accompanying text.
176 See, e.g., N.Y. Times Co. v. Sullivan, 376 U.S. 254 (1964); Speiser v. Randall, 357 U.S. 513 (1958).
177 See, e.g., Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963); N.Y. Times, 376 U.S. 254; Interstate Circuit, Inc. v. Dallas, 390 U.S. 676 (1968); Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988).
178 See, e.g., Free Speech v. Fed. Election Comm’n, Wyo. Liberty Grp., http://wyliberty.org/legal-center/free-speech-v-federal-election-commission/ (last visited Nov. 26, 2013).
179 See, e.g., Buckley v. Valeo, 424 U.S. 1, 44 n.52 (1976); McConnell v. Fed. Election Comm’n, 540 U.S. 93, 206 (2003); Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 324–25 (2010).
180 Bailey v. Maine Comm’n on Governmental Ethics and Election Practices, 900 F. Supp. 2d 75 (D. Me. Sept. 30, 2012).
181 Buckley, 424 U.S. at 43–45.
182 Id. at 45.
183 Id. at 43.
184 See, e.g., Trevor Potter, The History of Undisclosed Spending in U.S. Elections & How 2012 Became the “Dark Money” Election, 27 Notre Dame J.L. Ethics & Pub. Pol’y 383 (2013).
185 Buckley v. Valeo, 424 U.S. 1, 43 (1976).
186 See McConnell v. Fed. Election Comm’n, 540 U.S. 93 (2003).
187 Fed. Election Comm’n v. Wis. Right to Life, 551 U.S. 449, 456–57 (2007).
188 Id. at 469–70.
189 Id. at 451.
190 Id. at 474 n.7 (explaining that the Court’s test was not vague because “(1) there can be no free-ranging intent-and-effect test; (2) there generally should be no discovery or inquiry into the sort of ‘contextual’ factors highlighted by the FEC and interveners; (3) discussion of issues cannot be banned merely because the issues might be relevant to an election; and (4) in a debatable case, the tie is resolved in favor of protecting speech”).
191 Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 335 (2010).
192 Id. at 311.
193 Id. at 335.
194 It remains an ongoing point of debate within election law circles about whether disclosure systems are different in kind from other forms of campaign finance and thus subject to less rigorous standards. See, e.g., Anthony Johnstone, A Madisonian Case for Disclosure, 19 Geo. Mason L. Rev 413 (2012). This article does not attempt to answer that question, but illustrates the positive benefits of securing bright line standards elsewhere whose benefits would also be felt in the context of disclosure regimes.
195 In the midst of writing this article, the National Abortion Rights Action League (“NARAL”) of NY received an exemption to New York’s far-reaching disclosure rules because they “could put its contributors in danger.” Rick Karlin, Pro-choice lobbyist cites danger to donors in winning exemption, Times Union (June 26, 2013), http://www.timesunion.com/local/article/Pro-choice-lobbyist-citesdanger-to-donors-in-4624792.php (last visited Nov. 26, 2013). Notably, NARAL is the sole group in New York exempt from its disclosure laws.
196 See, e.g., Brief of Appellant, at 30–33 McConnell v. Fed. Election Comm’n, 540 U.S. 93 (2003) (No. 02-1734) 2003 WL 21649664 at *30–33.
197 See Fed. Election Comm’n v. Mass. Citizens for Life, 479 U.S. 238, 262–63 (1986).
198 See Adam Liptak, A Blockbuster Case Yields an Unexpected Result, N.Y. Times at A13 (Sept. 19, 2011), available at http://www.nytimes.com/2011/09/20/us/disclosure-may-be-real-legacy-ofcitizens-united-case.html?_r=0.
199 See FEC Form Five (2013), available at http://www.fec.gov/pdf/forms/fecfrm5.pdf.
200 Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 336–37 (2010).
201 Citizens for Life, 479 U.S. at 255.
202 See, e.g., Ray La Raja, The Supreme Court Might Strike Down Overall Contribution Limits. And That’s Okay, The Monkey Cage (Oct. 9, 2013, 1:26 PM), http://www.washingtonpost.com/blogs/monkey-cage/wp/2013/10/09/the-supreme-court-might-strike-down-overall-contributionlimits-and-thats-okay/ (last visited Nov. 26, 2013); George F. Will, On Political Speech, a (high) Court Opportunity, (Oct. 7, 2013 11:13 AM), http://www.pennlive.com/opinion/index.ssf/2013/10/on_political_speech_a_high_court_opportunity_george_f_will.html (last visited Nov. 26, 2013).
203 376 U.S. 254 (1964).
204 Id. at 270.
205 Id. at 279 (quoting Speiser v. Randall, 357 U.S. 513, 526 (1958)).
206 Va. State Bd. of Pharmacy v. Va. Consumer Council, 425 U.S. 748, 770 (1976).