(David Keating, Center for Competitive Politics) – On Tuesday, the U.S. Supreme Court affirmed without comment a ruling against CCP’s client, the Independence Institute. The Court’s order reflects agreement with the lower court’s result, but not necessarily its reasoning. The order does not indicate how any of the justices voted or why.
The ruling marks a sad day for the First Amendment and for the right to criticize government officials.
In this case, the Institute sought to run a radio ad urging citizens to contact their U.S. senators and express their support for a sentencing reform bill. The ad would not talk about an election or advocate in any way for the election or defeat of any candidates. Yet to run the ad, the McCain-Feingold law forces the Institute to file reports with the Federal Election Commission revealing private information about donors who gave money to support airing the ad. That is because the Institute wanted to run the ad within 60 days of a general election. If the ad ran on the 61st day before the election, it would not be covered by the law.
We believe the law violates the First Amendment, and the Court made an egregious error. The government does not have a right or a need to force citizens to tell the government about their views or their contact with other citizens.
The attorneys and the rest of the team at the Center for Competitive Politics gave this case our all, and we had stellar support. U.S. Senator Majority Leader Mitch McConnell, the U.S. Chamber of Commerce, the Philanthropy Roundtable, the State Policy Network and 24 affiliated state think tanks, and the Institute for Justice and the Cato Institute, among others, filed amicus briefs urging the Supreme Court to fully consider the case. Ten First Amendment scholars also filed a joint brief.
In one sense, the law is the same today as it was last week. The regulation under the McCain-Feingold law that affected our client has been in effect since 2007. Unfortunately, it still stands.
Yet other, and worse, laws were passed in the wake of McCain-Feingold. New laws, such as one recently passed in New York, expand similar laws far beyond 60 days or earmarked donations.
Such laws provide little, if any, value to the public. Politicians who pass them often seek to silence dissent and enable harassment of those who don’t share their views.
Everyone here at CCP will continue our fight in the courts to defeat and limit the reach of these laws. We will also continue to explain to Americans the dangers invasive disclosure requirements pose to their First Amendment rights.
The Supreme Court has not ruled on intrusive laws that affect issue speech made more than 60 days before an election. It has not yet considered laws that force disclosure for donors who give to a nonprofit organization, but have not earmarked their donations for “election-related” speech. When such laws are eventually heard by the Supreme Court, we think there is a good chance the Court will find them unconstitutional.
The Supreme Court has repeatedly found that donor privacy is essential for free speech and expressing a range of views on public policy issues.
Our goal now, as always, is to vindicate those rights in our current and future cases.
Thank you for your support as CCP continues to fight for your First Amendment speech rights.
David Keating is President for the Center for Competitive Politics (CCP).