As longtime readers of this blog may remember, the U.S. Supreme Court last Term decided Doe v. Reed, which asked whether Washington State could release the names and addresses of those who signed a controversial referendum petition. Check out IJ Senior Attorney Steve Simpson talking at Cato’s Constitution Day about what the Court did (and didn’t do) in Doe:
Tom Bowden of Voices for Reason notes a fascinating discovery about the Declaration of Independence. Early in the original draft, Thomas Jefferson changed a word to “citizens.” But because he scribbled out the original word, no one could tell what he had written until recently. Using new technology, however, scholars have identified the word: “subjects.” As Tom says, “on the brink of revolution, here was Jefferson, eradicating an important vestige of the idea that government is the master and individuals are the loyal servants.”
It seems entirely fitting to note this discovery as we kick off Citizen Speech Month. Citizens are equal before the law—equal to each other, and, importantly, to their governing officials. Subjects ask permission to speak. Citizens do not.
One of my favorite lines from the Declaration of Independence is in the bill of particulars lodged against King George: “He has erected a Multitude of new Offices, and sent hither Swarms of Officers to harass our People, and eat out their Substance.” I can’t think of a better description for all the campaign finance bureaucrats and the morass of red tape they impose on citizens who wish to speak out about their elected officials.
Enjoy the next month leading up to the election as a citizen, not a subject. Speak early, and speak often.
When Hal Heiner decided to run for mayor of Louisville, Ky., patent attorney Theresa Camoriano knew it was time to get serious about local politics. Theresa’s interest in politics had been growing for years, spurred on by both several run-ins with local bureaucrats and a general sense of frustration that government officials were not responsive to the citizens for whom they work.
In her spare time, this budding political entrepreneur took her first foray into activism by publishing The Jefferson Review, an online newsletter critiquing government overreach. Encouraged by her growing readership, Theresa’s desire to make her voice heard only intensified.
So Heiner's candidacy was welcome news: Here was someone running for office who shared Theresa’s views on the appropriate role of government and had a track record on city council to back it up. Theresa volunteered for Heiner’s campaign, handing out bumper stickers and flyers, but she wanted to do more. She wanted to tell voters about Heiner’s humility, trustworthiness and strength of character—messages not part of his official campaign, but things she knew to be true from years of knowing him.
To spread this message, Theresa and other Heiner supporters wanted to pool their money to buy radio ads. But under Kentucky’s campaign finance laws, like those of most states, this kind of political speech is illegal—unless they jump through a maze of legal hoops.
As part of its Citizen Speech Campaign,the Institute for Justice is declaring October Citizen Speech Month. Throughout the month, IJ will feature the stories of political entrepreneurs who have been stymied by government regulation of political speech under the guise of so called “campaign finance” laws.
Today’s post features the story of Louisville patent attorney and budding political entrepreneur Theresa Camoriano.
Legendary First Amendment lawyer Floyd Abrams has written a teriffic article for the Yale Law Journal defending the Citizens United decision. Abrams rightly criticizes “the willingness of so many not even to acknowledge, let alone weigh, the powerful First Amendment interests” at issue in the case. As he says,
But that was the tack taken by too many commentators who focused exclusively on the potential (but necessarily speculative) political impact of the ruling and whether the Court was guilty of unacceptable judicial activism. Yet for all the angst about the Citizens United ruling and all the denunciations of it, the ruling is based on the most firmly established and least controversial First Amendment principles. So for me, the truly disturbing visage of the case is not that five members of the Court gave such weight to the First Amendment that some long-standing bans on corporate and union participation in the nation’s electoral process fell; it was that four members of the Court and many of its most distinguished and powerful observers serenely acquiesced in the criminalization of a documentary urging Americans not to elect as President a leading candidate for that position.
Abrams is, of course, exactly right. Citizens United was firmly based on basic First Amendment principles. For anyone who truly values freedom of speech—and who understands what the “freedom” part actually means—the decision should not have been controversial at all. That it was one of the most controversial decisions in years is a measure, not of judicial activism or a pro-corporate, conservative Supreme Court, but of how far a large portion of this country’s intellectual establishment has strayed from the principles of the founding generation. The dirty little secret of a large number of opinion leaders in this country—not only politicians, but academics and even journalists—is that they support censorship as long as it is directed at ideas and people or groups they despise. Fortunately, I think more and more people are starting to understand the importance of Citizens United and why the Court did the right thing.
I have an op-ed in the Tampa Tribune today about IJ's challenge to Florida's campaign finance laws, which place unconstitutional burdens on groups that independently advocate the passage or defeat of ballot issues. Here's an excerpt:
“Hey Bob, have you been reading about Amendment 4?”
“I sure have, Susan. I think it’s awful.”
“Me, too. We should do something about it.”
“How about a full-page ad in the Tribune? We could split the cost.”
“That’s a great idea. Let’s keep it simple: ‘On Nov. 2nd, Vote No on Amendment 4.’”
Sounds simple enough, doesn’t it? It’s the sort of thing Americans do all the time when they’re mad about a candidate or ballot issue. Indeed, it’s the sort of thing James Madison, Alexander Hamilton and John Jay did when they anonymously published the Federalist Papers in support of ratifying the Constitution.
But it’s also the sort of thing that’s illegal in the state of Florida.
If Bob and Susan carry out their plan, they will have broken at least half a dozen state laws. Their political speech has landed them in the minefield of “campaign finance” law, where exercising basic First Amendment rights can lead to fines or even jail time.
In the marketplace for goods and services, entrepreneurs are engines for innovation and change. Likewise, in the political arena, political entrepreneurs bring new ideas and voices to public debate and provide outside competition that keeps the political establishment on its toes.
As part of the Institute for Justice’s new Citizen Speech Campaign, we released a report by campaign finance expert Jeffrey Milyo that explains the value of political entrepreneurs to the vibrancy of American democracy—and shows how campaign finance laws tell them to “keep out.”
Milyo points to the civil rights movement of the 1960s and today’s Tea Party movement as classic examples of political entrepreneurs challenging the status quo. IJ’s Robert Frommer pointed to another example when he highlighted the growth of “SpeechNow Groups” following the model created by political entrepreneur David Keating, and yet another in a group of Florida citizens who want to speak up about a constitutional amendment on the ballot.
Yet campaign finance laws in all 50 states erect barriers to entry for such political entrepreneurs, just as occupational licensing laws keep upstarts from competing with established interests in the marketplace.
In America, the only thing you should need to talk about politics is an opinion. But unfortunately far too many states view freedom of speech not as a right, but a privilege that they can regulate, license and control. Today, the Institute for Justice has launched a nationwide Citizen Speech Campaign that will vindicate the First Amendment rights of all Americans through strategic research, outreach and litigation.
Watch and Share IJ's New Campaign Finance Video "Camp Politics"
One state that is in desperate need of help is Florida. Unfortunately, residents of the SunshineState “enjoy” some of the worst campaign finance laws in the nation. For instance, whenever two or more people join together to spend money speaking out about a ballot issue, they must first register with the government and comply with complex organizational, administrative, and reporting requirements under the threat of fines and even possible jail time. These laws in effect turn politics into an insiders’ game.
No one should have to suffer these burdens in order to speak. After all, advocating for or against a ballot issue is core political speech that lies at the heart of the First Amendment. To vindicate this right, the Institute for Justice has brought a federal lawsuit on behalf of Nathan Worley, Pat Wayman, John Scolaro and Robin Stublen, four members of a Tampa-area political group who want to run radio ads against a land-use measure that is on the November ballot. Florida’s campaign finance laws, though, say that as soon as they raise $500, they must jump through government-created hoops in order to speak.