WILL THE U.S. SUPREME COURT DEFEND FREE SPEECH FOR THE LITTLE GUY?
Paul Sherman, Contributor October 30, 2013
Most campaign-finance cases that make their way to the U.S. Supreme Court involve big money. Citizens United v. FEC concerned the right of a well-funded nonprofit—and, ultimately, all corporations and unions—to spend unlimited amounts on political advocacy. McCutcheon v. FEC, which the Court heard earlier this month, concerns the right of wealthy individuals to make hundreds of thousands of dollars in political contributions.
Proponents of strict campaign-finance laws point to these facts as evidence that the benefits of robust protection for free speech in elections redound primarily to the wealthy. But this Friday, November 1, the U.S. Supreme Court will meet in private conference to decide whether to grant review in a case that challenges that assumption, and demonstrates the severe burden that campaign-finance laws impose on ordinary, grassroots groups of Americans.
The case, Worley v. Florida Secretary of State, involves three Florida residents, Nathan Worley, John Scolaro, and Pat Wayman, who in 2010 wanted to pool $600 to spend on radio ads opposing a controversial amendment to the Florida constitution regarding land-use regulations. They quickly learned, however, the campaign-finance laws aren’t just a problem for the wealthy.
Under Florida law, anytime two or more people spend as little as $500 to support or oppose a candidate or ballot issue, they are considered a “political committee.” That means they have to register with the state, open a separate bank account, pay for all expenses with checks drawn from that account and keep meticulous financial records, all of which are disclosed on the Internet. In other words, they have to comply with all of the requirements that political candidates hire lawyers and accountants to deal with.
As a practical matter, these regulations make spontaneous political speech effectively impossible for ad hoc, grassroots groups. Just as nobody would open a separate bank account for the proceeds of their office football pool, ordinary people aren’t going to do so to run a single newspaper ad or a handful of radio ads, either of which can easily push a group over the $500 threshold.
For those groups that do choose to speak out, Florida’s campaign-finance laws present a regulatory minefield filled with scores of potential violations. The state recommends that those wishing to comply with the law familiarize themselves with more than a thousand pages of constitutional provisions, laws, regulations, and advisory opinions. Failure to do so is treacherous; complaints to the state election commission about legal errors are common, and the state itself estimates that 98 percent of those complaints are politically motivated attempts to harass or punish one’s political opponents.
Faced with these burdens, Nathan, John and Pat—represented by the Institute for Justice—turned to the federal courts to vindicate their First Amendment rights.
They had good reason to be hopeful. The U.S. Supreme Court has repeatedly recognized that political committee requirements like Florida’s impose severe burdens on political speech that merit the highest level of judicial scrutiny. Indeed, in Citizens United, the Court held that forcing corporations and unions to speak through a political committee was so burdensome it amounted to an unconstitutional “ban on speech.” Nevertheless, a federal court in Florida and, later, the 11th U.S. Circuit Court of Appeals both upheld Florida’s political committee law.
Unfortunately, the 11th Circuit’s decision is not an outlier. Led by early decisions in the 9th Circuit, federal courts across the country have consistently ignored the Supreme Court’s ruling in Citizens United. As a result, in most states, grassroots groups are subject to campaign-finance laws that could not constitutionally be applied to ExxonMobil or the AFL-CIO.
That result cannot be squared with the First Amendment, which is why the Supreme Court should grant review in Nathan, John, and Pat’s case and reverse the decision of the 11th Circuit. Doing so wouldn’t just vindicate the plaintiffs’ rights, it would demonstrate the Court’s commitment to the principle that political participation is not a game reserved for the wealthy—it is the right of every American and every group of Americans, no matter how modest their resources or political goals.
The author is a senior attorney at the Institute for Justice, which represents that petitioners in Worley v. Florida Secretary of State.