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Thursday, January 12, 2017
Campaign-Finance Rules Chill Speech Unrelated to Election Campaigns
By Grassroot Institute @ 6:13 PM :: 3240 Views :: Ethics, First Amendment

Grassroot Institute Joins Amicus Brief on Free Speech Case

Case on appeal to Supreme Court challenges "chilling effect" of campaign finance law

News release from Grassroot Institute January 12, 2017

HONOLULU, HAWAII--January 12, 2017--Citing the importance of protecting free speech and advocacy, the Grassroot Institute of Hawaii has joined an amicus brief filed in support of the appellant in the case of Independence Institute v. Federal Election Commission. The case, which was dismissed by a DC District and is currently being appealed to the U.S. Supreme Court, challenges the Bipartisan Campaign Reform Act (BCRA) for provisions that constrain speech in the period before an election.

At the heart of the issue for Grassroot Institute and other nonprofit groups involved in the brief is the fact that the BCRA defines "electioneering communication" to include any mention of the name of a candidate for office in the days prior to an election--even when the communication in question has nothing to do with support or opposition to a particular candidate. If an organization spends $10,000 or more per year on speech that falls into this definition of "electioneering communications," the BCRA requires them to disclose the names and addresses of donors who contributed to those ads.

For example, a 501c3 that wished to make an ad urging citizens to contact their elected representative on a pending bill would be hampered from doing so within 60 days of a general election if that same representative was running for reelection or higher office. Even if the communication in question was solely focused on education and entirely unrelated to the election, it would still fall into the BCRA's provisions. 

"While clean government and campaigning are important, the way we pursue them cannot be allowed to inhibit free speech," stated Keli'i Akina, Ph.D., President of the Grassroot Institute of Hawaii. "An informed and active citizenry is critical to the legislative process, but it is being disrupted by an unconstitutional provision that governs speech based on its content. There could be no clearer violation of the Founding Fathers' intent."

Dr. Akina continued: "Requiring that any such communication be followed by disclosure of the organization's donors goes against a strong American tradition that protects anonymity in political speech. Whatever interest is served by this law does not justify policing speech that mentions sitting politicians just because an election is near."

The amicus brief can be read in full at: LINK

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Campaign-Finance Rules Chill Speech Unrelated to Election Campaigns

by Ilya Shapiro and Thomas Berry

In 2014, the Independence Institute—a Colorado think tank—wanted to run a radio advertisement supporting the Justice Safety Valve Act, a bill granting federal judges greater discretion in sentencing nonviolent offenders. The text of the ad asked listeners to “call Senators Michael Bennet and Mark Udall”—Colorado’s two senators at the time—and tell them to support the bill.

But under the Bipartisan Campaign Reform Act of 2002 (BCRA, better known as McCain-Feingold), any organization that spends at least $10,000 on “electioneering communications” in one year is required to make several public disclosures, including “the names and addresses of all contributors who contributed an aggregate amount of $1,000 or more” toward the advertisement. Further, an “electioneering communication” is defined as any broadcast that “refers to a clearly identified candidate for Federal office” within 60 days of a general election. Since Udall was running for reelection that year, the ad would have qualified even though it had nothing to do with Udall’s campaign.

The Independence Institute challenged the rule as an unconstitutional burden on its First Amendment right to speak on issues of public concern. After losing before a three-judge district court, the Institute has now appealed directly to the Supreme Court. Cato, joining the Institute for Justice, has filed a brief urging the Court to grant the case a full hearing on the merits.

We make two broad points. First BCRA’s disclosure provision is undeniably content-based, which should subject it to strict scrutiny under the First Amendment (meaning the government needs to provide a compelling justification). The law applies only if a speaker chooses to make reference to a candidate for office, so the law expressly draws distinctions based on the expressive content of speech.

Second, mandatory-disclosure laws chill speech by forcing people to surrender their “privacy interest in keeping personal facts away from the public eye,” as the Supreme Court put it in U.S. Department of Justice v. Reporters Committee for Freedom of Press (1989). In the context of reviewing disclosures made under the Freedom of Information Act, the Court has recognized that “embarrassment in … social and community relationships” is among the consequences of disclosure that “must be given great weight.” U.S. Department of State v. Ray (1991).

Exactly the same analysis holds true for donors to advocacy organizations. For many people—without tenure, without salary protection, and without security details—government-mandated disclosure of their political leanings and personal data is a real barrier to political participation. Forcing people to divulge their personal information threatens to expose them to reprisals, and this deterrent effect is pervasive precisely because it is impossible to predict whether your viewpoint will trigger retaliation.

BCRA’s disclosure rule is content-based, intrudes on speech and association, and has not been shown to serve a legitimate governmental interest. Because enforcement of the rule raises a substantial question under the First Amendment, the Court should take up Independence Institute v. FEC and ultimately overturn the district court.

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About the Grassroot Institute of Hawaii:

The Grassroot Institute of Hawaii is a nonprofit, nonpartisan research institute dedicated to the principles of individual liberty, the free market, and limited, accountable government throughout Hawai`i and the Asia-Pacific region.

About Grassroot President:

Keli’i Akina, Ph.D., is a recognized scholar, educator, public policy spokesperson, and community leader in Hawaii. Currently, he is President/CEO of Grassroot Institute of Hawaii, a public policy think tank dedicated to the principles of individual liberty, free markets and limited, accountable government. An expert in East-West Philosophy and ethics, Dr. Akina has taught at universities in China and the United States and continues as an adjunct instructor at Hawaii Pacific University.

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