Judge Charles Canady in Congress: A Strong but Mixed Pro-Free Speech Record

Hon. Charles Canady

Florida Supreme Court (2008-Present, 2010-2012 as Chief Justice); Florida Second District Court of Appeal (2002-2008); United States House of Representatives (1993-2001)

To learn more about judge Canady’s views on free speech, we reviewed 87 votes on bills or amendments during his congressional service that may have impacted First Amendment speech rights.

An analysis of these votes shows that he has a strong, but mixed, pro-free speech record on votes affecting First Amendment free speech rights.  These votes, while cast 16 years ago, may help provide information about Canady’s views on First Amendment speech rights.

Summary

Among actions he took that defended free speech rights were votes to:

  • oppose bills to greatly increase campaign finance regulations in 1993, 1998 and 1999;
  • support an amendment to remove expansive definitions of speech subject to regulation;
  • oppose a proposal to impose burdensome government reporting requirements on lobbying and political expenditures for groups receiving federal grants;
  • support donor privacy for groups not regulated as political committees; and
  • oppose proposals to provide tax funding for campaigns.

However, he also supported legislation that would have restricted free speech rights, including votes to:

  • support, in three different congresses, passing a constitutional amendment to give lawmakers the power to prohibit flag desecration;
  • support new lobbying registration and reporting requirements, including a controversial proposal to impose government reporting requirements for grassroots lobbying by nonprofit groups;
  • support for amendments to restrict the ability of candidates to raise money outside of their districts or states; and
  • support new government reporting obligations for unions.

Canady voted inconsistently on some issues or cast votes that appeared to restrict free speech rights. However some or all of these votes were likely cast for strategic reasons in an attempt to undercut support for measures that, if passed, would have had larger impacts on free speech rights. Such votes included:

  • support for legislation containing a ban on PAC contributions;
  • support and opposition for bans on “soft money” contributions to political parties; and
  • support and opposition to higher limits on candidate contributions.

Introduction

Charles Canady currently serves as a justice on the Florida Supreme Court. He previously served as its Chief Justice.

Justice Canady was also a member of the US House of Representatives – representing Florida’s 12th district from 1993 to 2001. Since he has been out of legislative office for about 16 years, it is possible that his views on some of these issues may have changed. Nevertheless, a glimpse into his voting record during that time may provide hints as to how he might approach cases affecting First Amendment speech rights if seated on the U.S. Supreme Court.

Support for Free Speech Rights

Canady cast several votes against bills and amendments that would have greatly limited the right of Americans to participate in campaigns. Before the Bipartisan Campaign Reform Act (also known as McCain-Feingold) passed Congress in 2002, there were earlier iterations of that highly restrictive law that failed to clear Congress. Canady voted against such measures in 1998 and 1999. His votes on amendments to these bills were consistent with his votes against final passage. However, he did vote twice to support amendments to limit the ability of candidates to raise money outside of either their own districts or states. These amendments would have required at least half of the candidate’s funds to be raised inside the district or state.

He also voted against a 1993 bill to create tax-funded campaigns and a host of new campaign-finance restrictions.

Activists for restricting political speech have also pursued other means of advancing their agenda, such as granting government the power to regulate issue advertisements. This is typically done by expansively defining terms like “express advocacy,” “independent expenditures” and “coordination.” Canady has opposed these efforts on numerous occasions.

In 2000, Canady took what appeared to be a politically courageous vote against a measure to impose new donor and expenditure government reporting requirements for certain issue advocacy groups. These groups were organized under section 527 of the Internal Revenue Code. It’s difficult to read too much into this vote without knowing his motivation for voting against it. Many of those who opposed passage of the bill thought it didn’t go far enough to impose new government reporting requirements for advocacy groups organized under other sections of the Internal Revenue Code. Given Canady’s votes on other issues, it’s most likely that he simply opposed the measure as an invasion of donor privacy and First Amendment speech rights.

On at least three occasions, Canady broke ranks with his Republican colleagues to oppose their efforts to pass measures limiting speech rights. In 1995, he voted for an amendment to remove restrictions in a bill to restrict federal grantees from lobbying or political advocacy with their own funds, and disclosing their political advocacy. In 1996, he voted against a proposal to impose new government reporting burdens on lobbying and political expenditures for groups receiving federal grants. In 2000, he voted against passage of a bill to require certain nonprofit groups to publically report to the IRS the names of all donors who gave $200 or more in a calendar year.

Support for Restricting Free Speech

There were several areas where Canady supported restrictions on free speech. Most prominently, he voted three times to pass a constitutional amendment allowing Congress to ban flag desecration (the first version allowed both Congress, and the states, to forbid this). For a nice, short, explanation of why such an amendment could be very harmful to First Amendment free speech rights in the long term, see this article by UCLA law professor Eugene Volokh.

One of Canady’s most troubling votes on First Amendment rights was his support for the “Lobbying Disclosure Act of 1994.” Passage of the bill in March of that year generated little controversy, but as more groups became aware of the provisions in the legislation, it became highly controversial. The strongest criticism was aimed at provisions to regulate grassroots lobbying by nonprofit groups.

In fairness to Canady, it appears that few members of Congress or organizations were aware of the potential impact on First Amendment rights from these provisions when the bill first passed the House. An examination of the text of that bill shows the groups were right to become concerned. The language defining grassroots lobbying was vague and regulators could easily have interpreted the language very broadly in enforcement actions. The measure defined such grassroots lobbying as including “any communication that attempts to … affect the opinions of the general public or any segment thereof,” among other provisions. After the measure was changed by a House-Senate conference committee, the provisions were somewhat narrowed, but still very broad.

Congressional Quarterly reported that “interest groups as diverse as the American Civil Liberties Union, the Humane Society of the United States and the National Right to Life Committee came out against the bill on the grounds that the disclosure requirements could prove burdensome and deter efforts to lobby on legislation. ‘They know that under this legislation, their members’ names will be reported,’ said Don Nichols, R-Okla.’”

Canady voted for the House version of the bill in March, which passed on a 315-110 vote. By the time the measure emerged from a conference committee in late September, the grassroots lobbying provisions were under a cross ideological attack. A motion was made to send the bill back to conference committee with his instructions to remove the grassroots lobbying provisions. The motion was narrowly rejected 202-215, with Canady supporting removal of the provisions. However, Canady then voted in favor of final passage of the bill with the grassroots lobbying provisions intact. The controversy on these provisions eventually resulted in the bill’s demise in the Senate.

The following year, Canady became the chief sponsor of the Lobbying Disclosure Act of 1995, which passed the House by a unanimous vote and later became law. That measure did not contain any of the grassroots lobbying provisions from the bill that failed the previous year.

A Word about Votes

Votes cast on amendments or bills can often reflect complex motives and may not fully indicate a lawmaker’s views on an issue. This is the most likely explanation why, for example, Canady voted both for and against bans on soft money contributions, higher contribution limits, and restrictions on lobbying. Amendments and bills often have many conflicting provisions that a lawmaker must weigh – some that may enhance First Amendment rights, while others might restrict those rights. There are also often strategic considerations for each vote cast. For example, Canady may have voted for a substitute measure that impacted free speech rights in an attempt to avoid passage of a bill that would have caused even greater harm to First Amendment rights. It is not always clear what the link between supporting or opposing legislation and advancing an overall philosophy. Still, we aimed to select votes that provided a clear choice on proposals that would impact free speech rights. We ignored other votes on proposals that did not provide clear choices on the best way to protect free speech rights.

Below is a list of votes Canady cast that we believe are good indicators of his views at the time on free speech rights. The votes are arranged by topic.

Speech Regulation

  • Votes to protect First Amendment rights to free speech:
    • Against passage of bills to greatly increase campaign finance regulations and limit free political speech. Vote # 379, 405 (1998) Vote #422 (1999)).
    • Against an amendment to broadly define speech subject to campaign-finance regulation and coordination rules. (Vote #364, (1996)).
    • For an amendment to remove provisions from a bill that would have regulated voter guides and congressional scorecards and to provide an explicit exemption for such communications. (Vote # 275, 361 (1998).
    • For an amendment to provide safe harbors from speech regulation for certain voter guides and congressional scorecards. (Vote # 361 (1998) Vote #413 (1999)).
    • For an amendment to provide a safe harbor from speech regulation for legislative alerts. (Vote #365 (1998)).
    • For an amendment to remove expansive definitions of speech subject to regulation. Vote #375, (1998)).
    • For an amendment to exempt speech on the Internet from campaign-finance regulation. (Vote #417 (1999)).
    • For an amendment to remove provisions in a bill to restrict federal grantees from lobbying or political advocacy with their own funds, and disclosing their political advocacy. The provisions in the legislation were complex, vague and broad. (Vote #622 (1995).
  • Votes to limit First Amendment rights to free speech:
    • For an amendment to create new government reporting obligations for unions for spending on political and lobbying activities. (Vote #306, (1998)).

Flag Desecration Constitutional Amendments

  • Voted for constitutional amendment to allow Congress and the states to prohibit the desecration of the American flag (Vote # 431 (1995)).
  • Voted for constitutional amendment to allow Congress to prohibit the desecration of the American flag (Vote # 202 (1997), Vote #252 (1999)).

Right to Petition Government

  • Votes to protect First Amendment rights to petition government:
    • Against reporting and registration requirements for grassroots lobbying (Vote # 450 (1994). [Note: after the amendment to remove these provisions failed, he voted for final passage of the bill that contained these grassroots lobbying provisions.]
    • Against a proposal to impose new government reporting burdens on lobbying and political expenditures for groups receiving federal grants (Vote # 52, (1996).
    • Against mandatory disclosure of honoraria to the media paid by lobbyists (Vote # 827, (1995)).
    • For clarifying that contact between federal officeholders and interest groups regarding pending legislation or the officeholder’s position on legislation does not trigger campaign finance coordination rules. (Vote # 368 (1998)).
    • Against a lifetime ban on foreign lobbying for certain former cabinet members (Vote # 826, (1995)).
  • Votes to limit First Amendment rights to petition government:
    • For expanded disclosure and registration for lobbying activities, including grassroots lobbying. (Vote # 90, Vote # 451 (1994)). [Note: Canady voted in favor of an amendment to remove registration and reporting requirements for grassroots lobbying from the bill (Vote #450), but after that amendment failed, supported the final passage of the bill containing those restrictions (Vote #451).]

Contribution Limits

  • Votes to enhance free-speech rights:
    • For increasing individual contribution limits (Vote # 411 (1999)).
    • For increasing aggregate contribution limits (Vote #412 (1999)).
    • Against a prohibition on “bundling” campaign contributions (Vote # 376 (1998)).
    • For allowing political contributions from permanent legal residents who serve in the military (Vote # 372 (1998)).
  • Votes to limit free speech rights:
    • Opposed an increase in candidate contribution limits from $1000 to $3000 (Vote # 374 (1998)
    • Opposed repealing candidate contribution limits. ((Vote # 403 (1998), Vote # 419 (1999))
    • Restricting collection of campaign funds from outside candidate’s district (Vote # 360 (1998)).
    • Restricting collection of campaign funds from outside candidate’s state (Vote # 370 (1998); Vote # 415 (1999)).

Tax-Financed Campaigns

  • Votes against tax-financed campaigns for candidates abiding by spending limits (Vote # 604, 605 (1993); Vote # 363 (1996)).

Research Fellow Joe Albanese contributed to this research.