Diary

Recent Attacks on Political Free Speech

Ever since the Supreme Court handed down its Citizens United decision, the Left has been apoplectic in their response and has been trying their best to limit the effects of that ruling.  Without getting into the minute details, suffice to say the Court ruled that campaign contributions were a form of political speech and under the First Amendment restrictions on political speech must survive the highest form of scrutiny.  Three recent cases from the past year may, in some form, end up before the Supreme Court soon.  Two have very much in common while the third is somewhat unique and, as such, may be rejected by the Supreme Court.  Let’s start with that case.

Out of the DC Circuit, the full court decided that a ban on political contributions by government contractors withstood constitutional scrutiny.  These are the so-called pay-to-play laws which many states have copied.  Basing their decision on Buckley vs. Valeo’s justification for campaign finance laws- to address corruption or the appearance of corruption- the Court ruled that the ban on contractor contributions clearly served that purpose.  But, there was a more practical reason for keeping the ban: to allow government contractors to contribute to political campaigns would interfere with the merit-based administration and awarding of contracts.  Using these justifications, the court also determined that the government’s actions were narrowly tailored toward those ends.

In this case, the court’s reasoning is understandable, but a little askew.  An actual contractor cannot donate, but a potential contractor (where there is greater opportunity for influence) can donate to a political campaign.  If we buy the “appearance of corruption” argument, then one is paying to retain the contract and one is paying to obtain the contract.  This tenet of Buckley vs. Valeo needs to be clarified.

However, the plaintiffs in this case were not necessarily arguing for equal protection, but the level of scrutiny required to uphold or strike down the law.  That is a question still somewhat open.  They will likely appeal to clarify what level of scrutiny is required- admittedly, a gray area.

The other two cases involve donor disclosure to state officials.  The first case is from the 9th Circuit and is in the early stages of litigation and may not be ripe enough for Supreme Court review this term.  In California, state attorney general Kamala Harris (who will likely be the next Senator from that state come 2016), is requiring that any organization registered as tax-exempt turn over to her office their annual IRS Schedule B form.  That form lists all donors who gave $5,000 or more during the course of the previous year.  The Center for Competitive Politics- a conservative group in California- sought a preliminary injunction against the action which the 9th Circuit denied.

The other case evolves from the Southern District of New York where a similar situation has occurred.  In New York, the state attorney general has required that any tax exempt organization must turn over to their office the same Schedule B listing of donors.  The stated reason, as in California, is that the state has an interest in protecting its citizens against fraudulent charities.  The plaintiff in this case is none other than Citizens United.  Again seeking an injunction, the court denied that request, which Citizens United is now appealing to the court of appeals.

The primary reason these groups oppose these actions by state attorney generals is that it has the potential to chill political speech vis-a-vis donations.  In the Ninth Circuit, that circuit is relying on an earlier case out of Washington regarding signatures on a petition to get a question on the ballot.  Publication and acknowledgement of signatures on a ballot is decidedly different from disclosing one’s donors to a charitable organization.  That case remains precedent in the Ninth Circuit since the plaintiffs did not pursue an appeal and likely would have lost any way given the fact this was a public petition.  But, it is clearly a false application of that precedent to disclosure of donor lists.

Instead, a Supreme Court case from 1958- Alabama vs. NAACP– should be controlling here.  In that case, the Supreme Court decided that disclosure of membership lists in groups that advocate for a political cause or position is a constitutional violation of their First, Fifth and 14th Amendment rights.  We must also look at these two cases in light of recent history.

In both the 9th Circuit and the district court in New York, the judges noted the extraordinary care the attorney generals of those states would undertake to keep these lists private.  This logic is flawed on two levels.  Private or not, this information in the hands of an attorney general with a political agenda could be devastating.  All one has to do is look to Lois Lerner and the IRS and how they used this information to target conservative groups and harass and audit people on those lists.  Second, despite their best efforts, the privacy of the lists hold great potential to be breached.  They are going to the attorney general’s office and they themselves have a cadre of investigators who then must do something with the lists.  The more investigators, the greater the chance for a breach of privacy.  Relying on a state attorney general’s word that the lists would remain confidential is absurd in today’s world.

If there is charitable fraud, one would think there is a better, more specific way to investigate.  The proponents of these actions are the same people who decry NSA collection of bulk data, but then insist on the collection of bulk charitable organization data in a wide dragnet of information.  To the extent there is fraud at the state level committed by these groups, then specifically investigate the group.  But, that is not what these attorney generals are doing.  Under the guise of protecting citizens from fraud, these state officials hold the potential to engage in political witch hunts and the chilling of political speech.  Disclosure of donors was a measure left open by the Supreme Court in 2010.  They need to address it.

[NOTE: The Center for Competitive Politics in the Ninth Circuit case recently filed an appeal to the United States Supreme Court.  It is likely too late for consideration for their first conference to consider cases next Monday.]