Supreme Court Grants Cert re Minnesota's Ban on Political Apparel at the Polls

Today, the Supreme Court granted a writ of certiorari in Minnesota Voters Alliance v. Mansky to decide whether "Minnesota statute Section 211B.11, which broadly bans all political apparel at the polling place, is facially overbroad under the First Amendment":

The justices said they will review a Minnesota law whose challengers include Andrew Cilek, a man who wore a Tea Party Patriots T-shirt and a "Please I.D. Me" button when he went to the polls in 2010. 

Minnesota is one of at least 10 states with broad bans on political apparel at election sites, according to the challengers. A decision striking down those laws would mark a significant shift for the high court, which in 1992 upheld a Tennessee law that barred campaign materials promoting a specific candidate or party. That law didn’t mention more general political items.

This case has important implications both for free speech rights and for election administration:

That ruling "plainly does not endorse a categorical ban on all types of ‘political’ speech," the challengers argued in their appeal. The group includes the Minnesota Voters Alliance and Cilek, its executive director. 

Minnesota’s law bars the wearing of a "political badge, political button or other political insignia" inside the polling place. . . . The law "is a reasonable method to ensure that the polling place is a location where citizens can exercise the right to vote without confusion, distraction or distress, and election officials can preserve the integrity and reliability of elections," the state officials argued.

On the one hand, states have a strong interest in ensuring the orderly conduct of elections, including prohibiting certain conduct, such as electioneering, at polling places.  On the other hand, voters do not abandon their rights of free speech at the polling place door, and broad bans on anything "political" clearly infringe on a voter's free speech rights.  Even more disturbingly, a vague prohibition such as Minnesota's allows a low-ranking government official, often a poll worker hired just for the day, to determine the limits of a voter's right of free speech by defining "political" (which, in our current culture, has been expanded to embrace almost everything) according to the government official's opinions.  This is the type of tyranny, petty though it may seem, that the First Amendment was designed to combat. 

Of note, prominent free speech advocates and election integrity supporters have already filed amici briefs in support of Minnesota Voters Alliance's challenge to the law: Cato Institute, Rutherford Institute, Reason Foundation, and Individual Rights Foundation; Center for Competitive Politics (now called Institute for Free Speech); and American Civil Rights Union and Association for Government Accountability.

Testimony to House Oversight Committee on Threat to Free Speech from Online Ad Regulation

Yesterday, Allen Dickerson of the Center for Competitive Politics (as of today, now called the Institute for Free Speech) testified to the House Oversight and Government Reform Committee’s Subcommittee on Information Technology on the dangers posed to free speech by proposals to regulate internet advertisements (footnotes omitted):

It is not obvious that anything will be gained in exchange for these burdens on fundamental liberties. Whatever modest advances may be made in preventing foreign influence will be on the backs of regulated Americans, who will bear the overwhelming burden under any proposed campaign finance regulation. . . . [B]roadcast mass advertising is not a game for small grassroots speakers. . . . By contrast, Facebook or Google AdWords advertisements calling for named members of Congress to, say, repeal the Jones Act in the immediate aftermath of a devastating late September hurricane, are more likely to be engaging in those “issue discussions unwedded to the cause of a particular candidate” that are “vital and indispensable to a free society.” The Supreme Court is less likely to bless the regulation of that speech. . . .

Mr. Dickerson points out the current proposals are impractical and would expand the definition of electioneering communications to include genuine issue speech:

Unless Congress can assure itself that it is regulating electioneering, and not mere political discussion about issues of public interest, it ought to act with care. After all, as the Supreme Court noted in the landmark case of Mills v. Alabama, “[w]hatever differences may exist about the interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs. This of course includes discussions of candidates, structures and forms of government, the manner in which government is operated or should be operated, and all such matters relating to political processes.”

In addition, there are practical concerns with merely cloning the electioneering communication standard applied to broadcast ads. What constitutes a communication reachable by 50,000 persons in the “relevant electorate?” Do the technical means exist to determine that answer without imposing insurmountable compliance costs? After all, basic economics dictates that such costs will be passed on to the consumer. And increasing compliance costs will crowd out precisely the small, grassroots speakers that are most vulnerable and rely most upon the Internet to disseminate their message. Conversely, removing the targeting requirement entirely will simply expand the scope of regulated communications, sweeping in discussions of key legislators, such as committee chairs, even where those conversations are not directed at constituents and are almost certainly not intended to affect electoral results.

In the end, Mr. Dickerson cautions against a broad regulatory approach that may or may not actually prevent foreign advertising (some of which already prohibited by law) but would certainly infringe on Americans' important rights of political speech online:

These concerns suggest caution. The Internet’s role as a conduit for grassroots speech and association is delicate, and too-easily crushed by overzealous or ill-considered restrictions. In particular, Congress should be wary of burdening an enormous swath of Americans’ grassroots political advocacy in the name of preventing, or attempting to prevent, relatively small foreign purchases. That concern is especially acute where such foreign meddling is already regulated under an unrelated statutory regime that does not burden Americans’ First Amendment liberties.

Mr. Dickerson's entire testimony is well worth reading.  A point that he makes throughout is worth remembering: the internet allows small, grassroots organizations and individuals to speak (i.e., advertise their message) in a way that is unprecedented.  If liberals are truly concerned about "dark money," the influence of the rich and powerful, and corporate speech drowning out the little person, as they claim they are, they will stay far away from regulations that restrict internet speech, as those regulations would disproportionately impact individuals' and small organizations' ability to disseminate their messages.

Former FEC Chairman Brad Smith: FEC's Weintraub Should Resign

Former FEC Chairman Brad Smith wrote today that it is time for FEC Commissioner Ellen Weintraub to resign, because her political attacks against President Trump and White House Counsel Don McGahn are jeopardizing the FEC's ability to perform its legitimate function:

These various examples show a trend, not of one-off slips of the tongue or misdirected zeal, but rather of a concerted messaging strategy whereby Commissioner Weintraub has intentionally aligned herself with those opposed to the President and his White House Counsel. Thus, while skirting along the edges of government ethics rules, Weintraub has placed herself in a position where any participation by her in a matter involving the Trump campaign could jeopardize any agency finding against the campaign. . . .

For some time now, Weintraub has apparently given up on the substantive work of the FEC in favor of pursuing her obsession with McGahn (who left the Commission nearly four years ago) and political grandstanding. On the latter front, her erratic behavior goes beyond criticizing McGahn and attempting to troll the President. In 2016, she appeared at a “Democracy Awakening” rally, leading the crowd in chants of “Hell No” and “Hell Yes,” while promoting a variety of liberal goals, and criticizing political donors for being overly “white” and “male.” In 2015, having lost a vote at the Commission to launch a new rulemaking, she pulled the stunt of petitioning her own agency to start such a rulemaking. When her colleagues refused to accept her petition, she accused them of denying that she was a “person” and used an open meeting of the Commission to make fatuous arguments about the FEC’s statute and commissioners’ eligibility to file a petition that would earn an “F” in any law school class on statutory construction — even at Harvard. 

If Commissioner Weintraub wishes to be an unserious, progressive martyr on the Commission, it is certainly within her rights to do so. Indeed, that may be her strategy to stay on the Commission, even though her term ended over a decade ago (she continues to serve as an “acting” commissioner). If she criticizes the President enough, she can spin to a ferociously anti-Trump press that any effort to replace her is an effort to silence the hunt for truth. The problem is that there is actual work to do at the FEC. When Commissioner Weintraub engages in ad hominem public attacks on the lawyers representing parties before her agency, repeatedly criticizes the President on matters outside her jurisdiction — or worse, within it — speaks publicly about pending MURs, and announces in advance her views on issues she will have to vote on, it is a problem, not just for her and the Agency she represents, but for the American public.

Prof. Smith detailed Weintraub's recent partisan excesses: how she used her FEC position and FEC resources to engage in partisan activity, namely criticizing President Trump; how she is engaged in a constant campaign of personal attacks against former FEC Commissioner and current White House Counsel Don McGahn; and how she seeks to expand the FEC's -- and therefore her -- jurisdiction to every aspect of federal elections.  Further, Prof. Smith details how just a few weeks ago, Weintraub's public comments may have jeopardized her impartiality on any matter regarding President Trump and his re-election and violated restrictions on FEC employees:

But Weintraub has pressed further. Also on May 23, she called for an investigation of whether Russian agents paid for Facebook ads designed to help then-candidate Trump in the 2016 campaign. Notably, given her criticisms of the President on voter fraud, she offered no evidence to support her allegation that “there is potential there for finding a violation.” More importantly, Weintraub again revealed her bias. Having made the allegation, Weintraub attempted to cover her tracks by adding, “I don’t want to suggest that I have prejudged anything that could potentially come before me.” . . . First, would any impartial observer take seriously her claim that she has not “prejudged anything,” particularly in light of her repeated rants against the President? . . . Second, even if one takes Commissioner Weintraub at her word, the first vote that the FEC takes on any enforcement matter is whether to open an investigation, which is based on whether there is “reason to believe” that an investigation is warranted. Weintraub has already publicly commented on precisely that question. . . . Finally, Weintraub may have violated the legal restrictions on FEC employees commenting on pending investigations.

We will continue to follow Commissioner Weintraub's partisan excesses and hope that she resigns soon so that a commissioner who takes his or her position at the FEC seriously can be appointed to replace her.

Trump Victory Proves that Money Does Not Buy Elections

The Center for Competitive Politics studied political spending in the 2016 election cycle, concluding that the data demonstrates strongly -- yet again -- that spending money does not buy electoral victory:

“The idea that money buys elections was disproven again last night by Donald Trump,” said CCP President David Keating. “Trump and his allies were outspent by huge margins. Money allows candidates and groups to speak. Voters decide based on their beliefs. It’s time to put aside the discredited idea that money buys votes. Instead, we should focus on expanding First Amendment freedoms for all Americans.”

Some political spending facts from CCP about last night’s election:

• Clinton outspent Trump more than 2 to 1.

• Pro-Clinton ads outnumbered pro-Trump ads 3 to 1.

• Independent groups supporting Clinton outspent independent groups supporting Trump 3 to 1.

• In the top states in terms of ads run (FL, OH, NC, PA, NV, IA), Clinton supporters ran over 3 times more ads. She lost 5 of these 6 states.

• The three biggest super PAC spenders supporting Presidential candidates (Clinton, Bush, and Rubio) spent $275 million on losing efforts – nearly 1/4 of all super PAC spending.

CCP analyzed the data (more detail on CCP's website) and concluded:

Taken together, what do these facts mean? The lesson is clear: political spending is an avenue for speech – it is necessary to buy political ads, to get a candidate’s message out, and pay for the numerous costs of a campaign, among other things. But despite many claims to the contrary, elections are not “bought” by millionaires and billionaires – they are decided by voters who either buy a candidate’s message or do not. 

In the coming weeks and months, there will be many lessons to take away from Trump’s upset victory, but one should surely be that, despite many claims by advocates of greater speech regulation, wealthy individuals and the so-called “special interests” do not and cannot use money to decide the outcomes of elections.

For all of the liberal handwringing over individuals, corporations, PACs, and organizations exercising their First Amendment right to spend money to communicate a political message, the voters can, and do, make decisions without falling victim to the "corruption" of political spending.  That is why the First Amendment exists--to protect the people against government officials who would like to decide what they hear and say.

Sanders Campaign Accepts Thousands of Potentially Illegal Contributions

According to the Federal Election Commission's review of recent disclosure reports from Sen. Bernie Sanders’ presidential campaign, the Sanders campaign has accepted thousands of illegal contributions:

The Federal Election Commission sent a letter to the Democratic presidential candidate’s campaign committee . . . with a 90-page spreadsheet listing 3,457 “excessive, prohibited, and impermissible contributions.” 

The campaign’s January financial disclosure filing listed contributions from foreign nationals and unregistered political committees, the FEC said. Other contributions came from donors who exceeded the $2,700 per-election limit. 

[. . .] The FEC sent a letter to the Sanders campaign earlier this month flagging an additional 1,316 “excessive, prohibited, and impermissible contributions” in the fourth quarter of 2015.

Scott Blackburn from the Center for Competitive Politics points out that the illegal contributions to the Sanders campaign are demonstrative of pervasive problems with the campaign finance system:

Such letters are routine in political campaigns; it is essentially impossible to follow the FEC’s reporting requirements to the letter of the law, and even more difficult to make sure that donors don’t accidentally violate federal contribution limits in their zeal to support their preferred candidate. So the regulators at the FEC send letters to warn campaigns that if they don’t fix their paperwork, the Commission is going to audit and fine them. 

These violations, in relation to Sanders, whose candidacy has been propelled by the passion of hundreds of thousands of small donors, provide a window into how ridiculous our campaign finance regulatory regime, particularly our strict campaign contribution limits, have become.

While Sen. Sanders may criticize the campaign finance system, his campaign still must abide by the current law.  The failure of his campaign to follow some of the relatively simple regulatory requirements of the campaign finance system should make him realize that the true problem with the campaign finance system is the burden it places on the exercise of First Amendment freedoms, not “dark money.”

Conservative and Libertarians on Citizens United After 5 Years

The White House and protesters yesterday went after Citizens United on its fifth anniversary in mostly fact free attacks. As Curt Levey of the Committee for Justice writes in Apocalypse Imagined:

The most memorable moment of [all of President Obama’s] the State of the Union address was the reaction of Justice Samuel Alito to inaccuracies in the President’s remarks about a recent Supreme Court decision.  President Obama is hardly alone in mischaracterizing the January 21 ruling in Citizens United, which struck down as a violation of First Amendment freedom of expression, a federal ban on campaign ads and related communications paid for by corporations and labor unions.  Never has a Supreme Court decision been misconstrued by so many people in so many ways.  Before Congress “corrects” the Court’s ruling, as the President urged, it is crucial that a series of misconceptions about the decision be cleared up. .  . .

Critics’ apocalyptic descriptions of Citizens United – a return “to the robber-baron era of the 19th century” said the New York Times – have focused almost entirely on giant, for-profit corporations, with some mention of labor unions.  Americans are left mostly unaware that the Court’s ruling applies equally to charities, advocacy groups, trade associations, and other non-profit corporations, not to mention small businesses.  In fact, because non-profits are cause-oriented and typically more willing to openly jump into the political fray, they will be most impacted by the decision.

Corporations will have to take explicit ownership of each and every campaign ad they are behind.  Contrary to the widespread impression that corporate dollars will be funneled into candidates’ campaign chests, the total ban on corporate contributions to candidates, political parties, and political action committees remains in place.  Any coordination between corporations and campaigns remains unlawful as well.  And even completely independent corporate expenditures must be publicly disclosed.

The continuing ban on corporate contributions is just one reason why the ubiquitous descriptions of Citizens United as a sea change are greatly exaggerated.  You would never know that billionaires have always been permitted to spend unlimited amounts on independent campaign ads, or that corporate campaign ads masquerading as issue ads – for example, “call candidate Smith and tell him to end his support for killing baby seals” – were already protected by the First Amendment.  In fact, a majority of states already permit unlimited corporate spending for explicit campaign ads in state races.  Seven even allow unlimited corporate contributions to candidates.  Yet there’s no evidence of greater corruption in those states.

Cato’s Illya Shapiro breaks down why President Obama should turn in his law professor card for his attacks on Citizens United:

These laments echo President Obama’s famous statement during his 2010 State of the Union Address: “The Supreme Court reversed a century of law that I believe will open the floodgates of special interests – including foreign corporations – to spend without limit in our elections.”

In that one sentence, the former law professor made four errors that are all too common.

First, Citizens United didn’t reverse a century of law. The president was referring to the Tillman Act of 1907, which banned corporate donations to campaigns. Such donations are still banned. Instead, the decision overturned a 1990 precedent that upheld a ban on independent spending by corporations. That 1990 ruling was the only time the court allowed a restriction on political speech for a reason other than the need to prevent corruption. . . .

Second, the “floodgates” point depends on how you define those terms. In modern times, nearly every election cycle has seen an increase in political spending, but there’s no indication that there’s a significant change in corporate spending. And the rules affecting independent spending by wealthy individuals, who are spending more, haven’t changed at all.

Third, Citizens United said nothing about restrictions on foreign spending in our political campaigns. In 2012, the Supreme Court summarily upheld just such restrictions.

David Keating at the Center for Competitive Politics sums it up this way.

"Five years ago today, the Supreme Court greatly expanded the ability of individuals through corporations and unions to participate in our democratic process." said Center for Competitive Politics President David Keating. "We should all celebrate the fact that the First Amendment protects our right to speak out about politics. The more political speech that is allowed in our democracy, the stronger our democracy becomes, because citizens learn more information about the candidates which in turn allows them to make a more informed decision about who to vote for -- regardless of who spends more."

In conclusion as Heritage Scholar John Malcolm states in US News:

While Obama and others on the left blame Citizens United for allowing corporations to politically overwhelm small, independent voices, Malcolm waved off those concerns: “The blogosphere is full of concerned citizens … nobody is being silenced. The little guy with a computer has a lot more power to get his message out” than ever before.

Bottom line, he says: Citizens United may have rearranged the trees, but it didn’t alter the landscape. And “the way to get at the truth is more speech, not less speech.”

RNLA Spotlight: Former FEC Commissioner to Speak at National Election Law Seminar

Brad Smith is the Chairman and Co-Founder of the Center for Competitive Politics. Brad served as a Commissioner on the Federal Election Commission and is considered one of the nation’s foremost experts on campaign finance law.  We are excited to announce that Brad will be speaking at the RNLA National Election Law Seminar on August 9^th and 10^th in Chicago, Illinois. 

A recent New York Times story refers to Mr. Smith as the “intellectual powerhouse” of the movement to roll back campaign finance restrictions and talks about how he had to be personally persuaded by Senator Mitch McConnell to be a Commissioner on the Federal Election Commission.

In 2001 his book on Free Speech and Campaign Finance Unfree Speech: the Folly of Campaign Finance Reform, was lauded by George Will as the year’s “most important book on governance.”

Brad has been referred to as “the most sought after witness in Congress” on campaign finance issues, Additionally, he has authored over 40 articles on campaign finance reform, appearing in academic publications such as the Yale Law Journal and Georgetown Law Journal, and popular publications such as The Wall Street Journal, USA Today, and National Review. Further he has appeared on The O’Reilly Factor, Hardball with Chris Matthews, Bill Moyers Journal, the Lehrer News Hour, Fox News Special Report, ABC News, Washington Journal, and many other national and local television and radio programs.

When he was an FEC Commissioner, Mr. Smith was known for his integrity and refusal to put the political interests of party’s ahead of his duties to improve the election system. He is also known for his vehement support of free speech in America. For his honesty and integrity on the Commission, the Wall Street Journal affectionately dubbed him, “the only honorable man in this bordello.”

Currently Mr. Smith serves as the Josiah H. Blackmore II/Shirley M. Nault Designated Professor of Law at Capital University Law School in Columbus, Ohio. He has been the recipient of numerous awards for his scholarship and teaching, and is a past member of the Advisory Committee to the American Bar Association’s Standing Committee on Election Law. He also serves on the Editorial Board of the Election Law Journal, and the Editorial Advisory Board of the Harvard Journal of Law and Public Policy. Smith also serves on the Board of Trustees of the Buckeye Institute for Public Policy Studies, is a senior fellow at the Goldwater Institute and is a member of the Board of Scholars of the Mackinac Center for Public Policy. Smith is a cum laude graduate of Harvard Law School and Kalamazoo College and holds an honorary doctorate from Augustana College.

The Republican National Lawyers Association is extremely excited to have a legal scholar of Brad Smith’s magnitude speaking at our National Election Law Seminar.