By Luke Wachob
Under the Obama administration, many Democrats were confident that regulating politics would serve their interests and promote fairness at the same time. Already suspicious that conservative groups played fast and loose with the rules, they imagined that the brunt of new rules would fall on groups like Americans for Prosperity or the National Rifle Association. They also had faith that public disclosure of support for advocacy groups would allow allies to expose and shame donors whose pocketbooks stood in the way of their vision of the common good.
After Election Day, the landscape looks vastly different. Allegations of racism, misogyny, and xenophobia failed to stop Trump’s rise, and failed to intimidate his supporters. Now, the laws that invade privacy to root out “dark money” could be used to make government lists of supporters of increased immigration, LGBT rights, abortion rights or criminal justice reform. And instead of going after groups like AFP or the NRA, liberals may worry about Trump targeting groups like Planned Parenthood or the Sierra Club.
As Republicans ascend to the White House, here’s hoping liberals return to their roots. If they were to join with conservatives, it’s possible they could make free speech great again.
By Luke Wachob
By Peter Overby
Voters in South Dakota adopted a package of ethics and campaign finance reforms in November. Now the legislature is declaring a state of emergency in order to repeal it.
(Ed. Note: CCP Research Fellow Scott Blackburn featured at 2:00)
By Scott Blackburn and Ron Williamson
In the past year, the Center for Competitive Politics has completed law suits in Colorado and Utah against similar unconstitutional laws. In both cases, our clients won. Judges in both states ruled that overly broad rules on small non-political speakers and vague laws are unconstitutional. Courts are not fond of violations of the Constitution – both states have pay out six figure fees for enacting laws that restricted the First Amendment.
Some lawmakers have responded to this the wrong way. They’ve proposed capping donations for future ballot initiatives. But even if we don’t like what supporters of an initiative are saying, the First Amendment stops us from restricting their ability to say it. We can’t fight unconstitutional laws with more unconstitutional laws.
Other legislators are acting responsibly. They are repealing IM 22 before any damage can be done. This is triply valuable to the citizens of South Dakota. $5 Million in revenue that would have gone to politicians can now be put to better use. The Attorney General need not waste time defending an unconstitutional bill that could’ve cost the state hundreds of thousands of dollars. And most importantly, South Dakotans will once again be free to express opinions without retaliation from state bureaucrats.
The Insider: Judge Neil Gorsuch’s First Amendment Decisions Show Respect for Free Speech (In the News)
By David Keating
The minor party contributors who bring this equal protection challenge suggest (at least in places) that we should consider applying strict scrutiny to this particular aspect of Colorado’s statutory scheme. They say that contributing in elections implicates a fundamental liberty interest, that Colorado’s scheme favors the exercise of that fundamental liberty interest by some at the expense of others, and for this reason warrants the most searching level of judicial scrutiny. For my part, I don’t doubt this line of argument has much to recommend it. The trouble is, we have no controlling guidance on the question from the Supreme Court. And in what guidance we do have lie some conflicting cues.
No one before us disputes that the act of contributing to political campaigns implicates a “basic constitutional freedom,” one lying “at the foundation of a free society” and enjoying a significant relationship to the right to speak and associate – both expressly protected First Amendment activities. Even so, the Court has yet to apply strict scrutiny to contribution limit challenges – employing instead something pretty close but not quite the same thing.
By David Keating
We found four cases relevant to First Amendment speech freedoms where Judge Hardiman either wrote or joined an opinion. Additionally, he voted against a petition for en banc review of Delaware Strong Families v. Denn, where CCP represented the plaintiff in one of the most important campaign finance cases of 2016…
The question presented in this lawsuit was simple. Should the state have the power to regulate groups that publish nonpartisan voter guides in essentially the same way that it regulates candidate committees, political parties, and PACs?
Judge Hardiman did not sit on the panel that heard this important case. However, he and the other Third Circuit judges received a petition asking the full en banc court to review the decision. A short brief accompanied the petition, which was denied. Judges Kent A. Jordan and Thomas I. Vanaskie voted to grant the petition, but Judge Hardiman did not…
After en banc review by the Third Circuit was denied, a certiorari petition was filed, unsuccessfully, with the U.S. Supreme Court. Justice Clarence Thomas wrote a highly unusual six-page dissent denouncing the Court’s refusal to hear the case. Such dissents are rare. Justice Samuel Alito also announced that he would have granted review.
New York Times: South Dakota Legislators Seek Hasty Repeal of Ethics Law Voters Passed (In the News)
By Monica Davey and Nicholas Confessore
Stung by scandal and rebelling against a state government known for its resistance to public scrutiny, South Dakota voters narrowly approved a ballot measure in November to impose ethics oversight and campaign finance restrictions aimed at cleaning up the capitol in Pierre…
Some organizations that oppose restrictions on political spending in the name of free speech said that the South Dakota initiative was poorly drafted and overly broad. David Keating, the president of the Center for Competitive Politics, said the measure as written was likely to be mired in state and federal litigation for years.
“It was one of the most poorly written proposals we’ve seen,” Mr. Keating said. “I think there’s a legitimate worry that the legislature has and the governor has, which is that this could be in the courts for a long time, and it could cost a lot of money to litigate it. So why not start with a clean sheet?”
By Bruce Edward Walker
Post-Citizens United, the left doubled down on free-speech efforts in a manner that makes even the most outrageous claims about McCarthyism seem banal by comparison. In her book, Strassel hopscotches through these efforts adroitly beginning with the targeting of Tea Party groups by the Internal Revenue Service team led by Lois Lerner…
Just last week, amicus briefs were filed with the U.S. Supreme Court related to Independence Institute vs. FEC. At issue is the Federal Election Commission’s demand for the Colorado-based Independence Institute’s donor information after the think tank ran an advertisement urging readers to contact their legislators in support of a sentencing reform bill.
Donors possess any number of reasons for desiring anonymity for their political activities, including freely yet privately expressing their respective religious beliefs in the public sphere without any threat of retaliation. Strassel’s Intimidation Game is perhaps the best casebook explaining why demanding donor transparency is far worse than McCarthyism.
By Dan Curran
Is the era of marketing arrogance coming to an end?
The 2016 presidential election made it painfully clear that conventional tactics can spell doom. Politicians come and go, but the real losers are the marketing fools who helped Jeb with his exclamation mark and offered Hillary #ImWithHer.
Blaming bad slogans is oversimplifying these foiled, expensive campaigns, but the fact remains: Antiestablishment marketing methodologies have officially bypassed “Mad Men”-era tactics.
Consider these numbers: According to the Center for Competitive Politics, Clinton’s campaign outspent Trump’s by more than double. Pro-Clinton TV ads outnumbered pro-Trump ads by an even larger margin: 383,512 to 125,617. And at $159.3 million, more money was spent on Bush than Trump during the primaries. Yet he defeated both.
The Insider: Good Signs for First Amendment in Judge William Pryor’s Rulings on Tax-Financing, Political Sign Cases (In the News)
By David Keating
Scott v. Roberts presented Republican gubernatorial candidate Rick Scott’s challenge to a tax-financed campaign scheme the state enacted in 1986 and amended in 1991. The program generally operated as a matching funds program… However, once an opponent to a tax-financed candidate spent over $2/registered voter, the subsidized candidate received a dollar-for-dollar match of his opponent’s spending. The subsidized candidate no longer needed to raise any private funds to receive the subsidy. The law also allowed subsidized candidates to exceed expenditure limits. Judge Pryor held the scheme was likely unconstitutional, and the opinion overturned a district court’s denial of a preliminary injunction…
In Beaulieu v. City of Alabaster, Judge Pryor joined an opinion that held a city’s sign-usage ordinance unconstitutional. The ordinance placed different burdens on commercial and political signs…
Applying strict scrutiny, the panel affirmed the district court ruling, which overturned the ordinance. The panel determined that the city’s interests in aesthetics and safety did not overcome the core political speech at issue.
By Edward Zuckerman
The U.S. Supreme Court received 10 friend-of-the-court briefs urging full review of a case that tests a Federal Election Commission requirement to disclose donors who finance ads that do not serve an election-related purpose but instead generate support or opposition to a public policy issue. Briefs were filed by a disparate group that included U.S. Senate Majority Leader Mitch McConnell, former American Civil Liberties Union President Nadine Strossen, and the U.S. Chamber of Commerce. The case involves a Colorado think tank that ran an ad to support a sentencing reform bill, and triggered the FEC’s requirement even though the ad did not identify or advocate the election or defeat of a federal candidate, the Center for Competitive Politics said.